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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 13 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 14-50140 Plaintiff - Appellee, D.C. No. 3:13-cr-03554-LAB v. MEMORANDUM* ANNA MARGARITA SANDOVAL, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted April 7, 2015** Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges. Anna Margarita Sandoval appeals from the district court’s judgment and challenges the 48-month sentence imposed following her guilty-plea conviction for importation of cocaine, in violation of 21 U.S.C. §§ 952 & 960. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Sandoval contends that the district court procedurally erred by failing to award her a mitigating role adjustment under U.S.S.G. § 3B1.2. We review the district court’s interpretation of the Sentencing Guidelines de novo, its application of the Guidelines to the facts of the case for abuse of discretion, and its determination that a defendant was not a minor participant for clear error. See United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014). Contrary to Sandoval’s argument, the record shows that the district court properly applied the Sentencing Guidelines and our precedent, basing its denial of the adjustment on the totality of the circumstances and a comparison of Sandoval’s culpability to that of other individuals in the smuggling operation. See U.S.S.G. § 3B1.2 cmt. n.3(A), (C); Hurtado, 760 F.3d at 1068-69. Moreover, the district court did not clearly err in denying the mitigating role adjustment when Sandoval smuggled a significant quantity of drugs, registered the vehicle in her name, participated in the operation for two months, and had smuggled drugs into the country on two previous occasions. See Hurtado, 760 F.3d at 1069. AFFIRMED. 2 14-50140	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 96-2096 ___________ Douglas D. Webb, * * Appellant, * * v. * * Appeal from the United States L a w r e n c e County, South Dakota; * Dist rict Cour t f o r the C h a r l e s Crotty, in his individual * Dist rict o f Sout h Dako ta capacity and official capacity as * Lawrence County Sheriff, * * Appellees. * ___________ Submitted: December 10, 1996 Filed: May 14, 1998 ___________ Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges. ___________ McMILLIAN, Circuit Judge. Douglas D. Webb appeals from a final order entered in the District Court1 for the 1 The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota. -2- District of South Dakota granting summary judgment in favor of defendants Lawrence County, Charles Crotty, the sheriff of Lawrence County, and John Doe and Jim Doe, employees of the sheriff’s department (collectively defendants), on his 42 U.S.C. § 1983 prisoner civil rights claim alleging an Eighth Amendment violation and dismissing his pendent state negligence claim. Webb v. Lawrence County, 950 F. Supp. 960 (D.S.D. 1996) (memorandum opinion and order). For reversal, Webb argues the district court erred in (1) holding defendants were not deliberately indifferent to his safety as a matter of law (count I) and (2) dismissing his state negligence claim on the ground of sovereign immunity (count II). For the reasons discussed below, we affirm the judgment of the district court. The district court had subject matter jurisdiction of this 42 U.S.C. § 1983 civil rights action under 28 U.S.C. § 1343. The district court also had supplemental jurisdiction over the pendent state negligence claim under 28 U.S.C. § 1367. (In addition, there was an independent jurisdictional basis-- diversity of citizenship under 28 U.S.C. § 1332-- for the state negligence claim.) The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a)(1), and this court has appellate jurisdiction under 28 U.S.C. § 1291. The following statement of facts is taken in large part from the memorandum opinion and order of the district court. Webb and an accomplice committed various crimes in South Dakota and Wyoming. After Webb was apprehended, he spent several months in jail in Wyoming, and in October 1993 he was transferred to the Lawrence County jail to face the pending South Dakota charges. He was placed in maximum security. At the time Webb was 19 years old, about 5’4” tall and weighed about 120 pounds. Defendants did not place him in one of two minimum security sections in the jail because they wanted to separate him from his accomplice (the accomplice had been placed in one of two minimum security sections) and because the other minimum security section was full. Initially, Webb shared a cell with another inmate. Then Webb moved into a cell with Greg Wyman, another maximum security inmate. -3- Apparently Webb’s first cellmate was leaving the jail and Webb did not want to share a cell with incoming federal prisoners. Defendants knew that Wyman had been convicted of sex offenses, specifically, rape and sexual contact with a minor. At night the maximum security cells are locked down. During the day the inmates can move around in the commons area. There is an emergency alarm button located in the commons area, but the alarm is not accessible when the cells are locked down at night. There is also a security surveillance camera in the maximum security section, but the camera does not provide a view inside the individual cells. Defendants stated that jailers checked the cells every 30 minutes; however, Webb stated that jailers only came into the cell block once a day. Webb alleged that Wyman sexually assaulted him repeatedly. Webb did not tell anyone about the assaults because he believed Wyman had a knife and he was afraid Wyman would retaliate against him. After four days, Webb managed to leave a note in the cell bars just before lockdown informing the jailers that he had been sexually assaulted. Webb did not notify the jailers sooner because he could not think of a way to give them the note without alerting Wyman. Thirty minutes after discovering the note, the jailers moved Webb out of the cell. In December 1994 Webb filed this civil rights action in federal district court against defendants alleging violations of his constitutional rights and state tort law. He alleged defendants demonstrated a reckless disregard for his constitutional rights by failing to protect him from inmate violence in violation of the Eighth Amendment (count I). He alleged defendants transferred him to Wyman’s cell even though they knew Wyman was a sexual predator, failed to properly supervise the cell block, failed to develop adequate protection or policies to minimize or eliminate inmate sexual assaults, failed to stop double-celling inmates, and failed to adequately classify and segregate -4- inmates. In his pendent state tort claim,2 Webb alleged essentially the same acts and omissions as those alleged in his constitutional claim. He specifically alleged that defendants failed to adequately protect him from inmate sexual assault, despite his obvious vulnerability to such assault because of his youth, physical size, and status as a new admittee to the jail. Defendants filed a motion for summary judgment on count I and a motion to dismiss count II for failure to state a claim. The district court granted summary judgment in favor of defendants on the constitutional claim (count I) because Webb failed to present any evidence that defendants had reason to suspect that inmates in the jail faced a substantial risk of sexual assault from other inmates. 950 F. Supp. at 965 (noting that although inmate rape and assault is pervasive in nation’s prison system, pervasiveness is not sufficient to put defendants on notice of excessive risk of serious harm in absence of evidence or allegations that inmate rape was common occurrence in this jail). The district court also dismissed the state negligence claim (count II) because defendants were protected by sovereign immunity. Id. at 967. The district court held that the county had not waived sovereign immunity by purchasing liability insurance. Id. The district court also held that federal law did not preempt the sovereign immunity defense and that sovereign immunity did not deny a judicial remedy in violation of the state constitution’s open courts provision, S.D. Const. art. VI, § 20, because Webb could file a 42 U.S.C. § 1983 civil rights action. 950 F. Supp. at 967. This appeal followed. 2 The district court noted that there was also an independent jurisdictional basis for count II-- diversity of citizenship-- and applied South Dakota law to the negligence claim. 950 F. Supp. at 966. -5- EIGHTH AMENDMENT CLAIM Webb first argues the district court erred in granting summary judgment in favor of defendants on his constitutional claim (count I) because there was no evidence that defendants were deliberately indifferent to his safety as a matter of law. He argues that there was circumstantial evidence of a substantial risk of serious harm because defendants knew that Wyman was a sexual predator who obviously posed a substantial risk of serious harm especially to young and physically slight inmates. Webb argues defendants disregarded that obvious risk and thus failed to protect him from inmate assault. We disagree. We review the grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of identifying “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or allegations in the pleadings; rather, the non-movant “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. at 324. Although we view the facts in a light most favorable to the non-moving party, in order to defeat a motion for summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit. Webb’s constitutional claim is based on an alleged violation of his Eighth Amendment rights. -6- The Eighth Amendment to the United States Constitution proscribes the infliction of “cruel and unusual punishments.” The Supreme Court counsels that this amendment imposes upon prison officials the duty to “provide humane conditions of confinement.” That duty, among other things, requires those officials to take reasonable measures to “protect prisoners from violence at the hands of other prisoners.” The Eighth Amendment imposes this duty because being subjected to violent assaults is not “part of the penalty that criminal offenders pay for their offenses.” In order to prevail on an Eighth Amendment failure-to-protect claim, [an inmate] must make two showings. First, [the inmate] must demonstrate that [he or she is] “incarcerated under conditions posing a substantial risk of serious harm.” The second requirement concerns the state of mind of the prison official who is being sued. It mandates that the [inmate] show that the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.” This subjective requirement is necessary because “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825 (1994); other citations omitted); see also Erickson v. Holloway, 77 F.3d 1078, 1080 (8th Cir. 1996). We agree with the district court that Webb failed to create a genuine issue of material fact under Farmer v. Brennan’s subjective knowledge standard. There was no evidence that defendants actually knew that Wyman posed a substantial risk of harm to Webb. Although defendants knew that, in general, inmate rape and assault is pervasive in this nation’s prison system, there was no evidence or allegations that inmate rape is a common occurrence in this particular jail. Although defendants knew that Wyman was a sexual offender, there was no evidence that Wyman had assaulted -7- any other inmates or caused any problems while incarcerated. Defendants also knew that Webb had requested Wyman as a cellmate. Defendants were not aware of Wyman’s threats or assaults because Webb did not report them; however, once they learned of the assaults, they immediately moved Webb out of the cell. We also agree with the district court that defendants’ knowledge was insufficient to satisfy the lesser objective knowledge standard this circuit applied in prisoner assault cases before Farmer v. Brennan. Cf. Falls v. Nesbitt, 966 F.2d 375, 379 & n.5 (8th Cir. 1992) (noting in pre-Farmer v. Brennan case that a single episode of violence, without warning or suspicion, is insufficient to establish a pervasive risk of harm, particularly when plaintiff views attack as an isolated incident). Even assuming for purposes of analysis that the risk of sexual assault faced by young, physically slight inmates like Webb was obvious, and thus sufficient to put defendants on notice of its existence, “Farmer [v. Brennan] specifically rejects the idea that liability may be found when a risk is so ‘obvious that is should [have been] known.’” Jensen v. Clarke, 73 F.3d at 811, citing Farmer v. Brennan, 511 U.S. at 836. STATE NEGLIGENCE CLAIM Webb next argues the district court erred in dismissing his state negligence claim (count II) for failure to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) motions must be read in light of Fed. R. Civ. P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” The issue is whether, taking all well-pleaded factual allegations in the complaint to be true, the complaint states a claim that would entitle the plaintiff to relief against the defendants under some set of facts. As a preliminary matter, defendants argue the waiver of sovereign immunity issue has not been preserved for appellate review. However, Webb raised the issue in -8- the district court in his brief in response to defendants’ motion for judgment on the pleadings on count II. Appellant’s Appendix at 41-42. Defendants argued in the district court that sovereign immunity barred Webb’s state negligence claim, citing S.D. Codified Laws §§ 3-21-8, 3-21-9 and 3-21-10 (Michie 1994).3 Webb argued that defendants waived sovereign immunity by purchasing liability insurance, citing S.D. Codified Laws §§ 21–32–15, 21-32-16 (Michie 1987).4 The district court held the fact that the county had purchased liability 3 S.D. Codified Laws § 3-21-8 (Michie 1994) provides: “No person, political subdivision or the state is liable for failure to provide a prison, jail or penal or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, programs, facilities or services in a prison or other correctional facility.” S.D. Codified Laws § 3-21-9 (Michie 1994) provides in part that “[n]o person, political subdivision or the state is liable . . . for any injury caused by or resulting from . . . (4) a prisoner to any other prisoner; or (5) services or programs administered by or on behalf of the prison, jail or correctional facility.” S.D. Codified Laws § 3-21-10 (Michie 1994) provides: “No waiver of state immunity by statute or, where permitted, by any officer or agent of the state may constitute or be interpreted as a waiver of the state’s immunity from lawsuits in federal court.” 4 S.D. Codified Laws § 21-32-15 (Michie 1987) provides: “The state of South Dakota, through the commissioner of administration, may obtain and pay for public liability insurance to the extent and for the purposes considered expedient by the commissioner for the purpose of insuring the liability of the state, its officers, agents or employees.” S.D. Codified Laws § 21-32-16 (Michie 1987) provides: To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state -9- insurance did not operate as a waiver of sovereign immunity because S.D. Codified Laws §§ 21-32-15 and 21–32-16 applied only to the state and not to state agencies or counties. 950 F. Supp. at 967, citing Siefkes v. Watertown Title Co., 437 N.W.2d 190, 193 (S.D. 1989) (Siefkes) (holding county’s purchase of liability insurance did not operate as waiver of sovereign immunity). For the reasons discussed below, we hold Siefkes does not apply and that the county waived sovereign immunity by participating in a risk sharing pool or purchasing liability insurance. We agree with the district court that Webb failed to state a claim as a matter of law because S.D. Codified Laws § 3-21-9 provided defendants with a complete defense to his state negligence claim. In Siefkes the principal controversy involved the record title to an alfalfa field, specifically the existence of a right of way easement over either or both the east and west parts of the field. In the first action the owner of the east part (Siefkes) sued the title company and its surety for damages, alleging that his property was encumbered by the easement which was not shown by any entry in the abstract of title prepared and certified by the title company. The title company then brought a third party action against the county register of deeds seeking indemnity for negligent indexing. The state trial court directed the owner of the west part (Herzog) be joined as a real party in interest. The title company filed a third party action against Herzog. Siefkes then amended his complaint to seek a declaratory judgment that the west easement existed and the east easement did not. Herzog then filed a third party action against the title company for failure to include the west easement in the abstract of title prepared and certified by the title company and against the former owners of the west part. The title company also filed a third party action against the county register of deeds alleging that the west easement was also not indexed. shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued. -10- After reviewing in detail the various property transfers, the court identified two distinct actions for negligence against the title company-- Siefkes’s claim involving the failure to properly abstract the reciprocal easement from Roger to Gary Stenzel showing the existence of the east easement and Herzog’s claim involving the failure to properly abstract the Stenzels-Siefkes deed so as to show the existence of the west easement. The state trial court found that the doctrine of merger had eliminated the east easement but that the west easement was valid. On appeal, the state supreme court affirmed the state trial court’s decision on the existence or non-existence of the easements. The court then examined the question which is at issue in the present case, that is, whether the county had waived sovereign immunity by purchasing liability insurance. Sovereign immunity applies to political subdivisions of the state, such as counties, townships and school districts. The title company argued that the county, acting as an agent of the state, waived sovereign immunity by purchasing liability insurance pursuant to S.D. Codified Laws §§ 21-32-15, -16. As noted in the margin, § 21-32-15 provides that the state may obtain liability insurance for the state, its officers, agents, and employees; § 21-32-16 provides that to the extent that such liability insurance is purchased, the state shall be deemed to have waived sovereign immunity. The court noted that it had narrowly construed provisions waiving sovereign immunity and held that the fact that the county had purchased liability insurance did not operate to waive sovereign immunity under provisions deeming the state to have waived sovereign immunity by purchasing liability insurance. 437 N.W.2d at 193, citing Holland v. Yankton School District No. 63-3, 375 N.W.2d 199, 199-200 (S.D. 1985) (holding that although school districts are state agencies, the state by purchasing liability coverage for its officers, agents and employees did not waive sovereign immunity on behalf of school districts), and Zens v. Chicago, Milwaukee, St. Paul & Pacific R.R., 386 N.W.2d 475 (S.D. 1986) (holding township did not waive sovereign immunity by purchasing liability insurance). -11- The court acknowledged in a footnote that the legislature had enacted S.D. Codified Laws § 21-32A,5 covering the purchase of liability insurance by any public 5 5S.D. Codified Laws ch. 21-32A (Michie 1987) provides: 21-32A-1. Waiver of sovereign immunity to extent of risk sharing pool or insurance coverage. To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued. The waiver contained in this section and §§ 21-32A-2 and 21-32A-3 is subject to the provisions of § 3–22–17. 21-32A-2. Immunity of employees, officers or agents-- Affirmative defense. Except insofar as a public entity participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any employee, officer or agent of the public entity, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity. The immunity recognized herein may be raised by way of affirmative defense. 21-32A-3. Immunity of public entities-- Affirmative defense. Except insofar as a public entity participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any public entity is immune from liability for damages whether the function in which it is involved is governmental or proprietary. The immunity recognized herein may be raised by way of affirmative defense. Section 3-22-17 (Michie 1994) provides in part: Nothing in this chapter may be construed to be in conflict with or to expand the scope of governmental or sovereign immunity or any waiver of governmental or sovereign immunity contained in the state -12- entity, other than the state, but did not apply it because the provision went into effect on July 1, 1986, well after all the property transfers occurred, and had no retroactive effect. 437 N.W.2d at 103 n.3; see Ritter v. Johnson, 465 N.W.2d 196, 198 n.3 (S.D. 1991) (refusing to reach constitutionality of waiver provision because it did not go into effect until after accident at issue and has no retroactive effect). Counties are included in the statutory definition of the term “public entities.” S.D. Codified Laws § 3-22-2(12) (Michie Supp. 1997). Unlike Siefkes, this provision was in effect at the time when Webb was assaulted by Wyman in jail and therefore does apply in the present case. Brown v. Egan Consolidated School District No. 50-2, 449 N.W.2d 259, 262 (S.D. 1989) (Brown), shows how § 21-32A-1 operates. That case involved an accident that occurred in January 1988 between the plaintiff (Brown) and a school bus owned by the school district and operated by another school district employee. (As noted above, § 21-32A-1 became effective July 1, 1986.) The school district had purchased liability insurance. Brown suffered serious injuries and sued the school district to the extent of its insurance coverage. The school district court filed a motion for summary Constitution, statute, judicial opinion, ordinance, resolution or tort claims act except as provided in § 3-22-10 [which refers to payment of claims from the fund] which may be construed only to extend sovereign immunity to the maximum extent allowed under the state or federal constitutions. S.D. Codified Laws ch. 3-22, enacted in 1986, established the public entity pool for liability. The state supreme court has presumed that the legislature established the fund as a substitute for traditional liability insurance. See Kyllo v. Panzer, 535 N.W.2d 896, 900 (S.D. 1995) (reviewing history of sovereign immunity legislation following 1985 decision which upheld as constitutional legislation imposing limitations and conditions on the operation of sovereign immunity, but held that the state’s participation in a risk sharing pool did not waive sovereign immunity because plain language of statute required purchase of traditional liability insurance, not self-insurance through risk sharing pool). -13- judgment, claiming that another statute, § 13-29-1, created an independent statutory basis for sovereign immunity that had not been waived by § 21-32A-1. The state trial court reconciled the two provisions by holding that sovereign immunity still existed under § 13-29-1 but had been waived under § 21-32A-1 to the limit of the liability insurance. On appeal, the school district argued there were three independent bases for sovereign immunity-- common law, the state constitution, and particular statutes. The school district court conceded that § 21-32A-1 waived common law and constitutional immunity but argued that it did not waive what it called the “independent statutory immunity” for operation of school buses contained in § 13-29-1, which provided in part: The school board of any school district may acquire, own, operate, or hire buses for the transportation of students to and from its schools either from within or without the district or for transportation to and from athletic, musical, speech, and other interscholastic contests in which participation is authorized by the school board. If the use of a school bus is granted by the school board pursuant to subdivision (1) or (8) of § 49-28-2 [excluding certain motor vehicles from the definition of motor carriers for the purpose of regulation under the Public Utilities Commission (PUC)], the school district is not liable for suit or damages which may arise as the result of the use. Section 49-28-2(1) excludes from PUC regulation motor vehicles used for transportation to and from schools or interscholastic activities or when use is rented or granted to nonprofit organizations for transport of persons under 21 for community service. Section 49-28-2(8) exempts motor vehicles used by nonprofit organizations for transportation of senior citizens or handicapped persons. The school district argued the exemption from liability applied to its use of buses for student transportation. The state supreme court disagreed, holding that the exemption of liability language did not apply to the school district’s use of buses to -14- transport its own students to and from school or interscholastic contests, but instead only to renting or granting use of the buses to nonprofit organizations for their purposes. 449 N.W.2d at 261. The court noted that § 49-28-2(1) limited the area in which a bus can be used under the grant and further required that the organization to which use is granted furnish a fully qualified driver and insurance coverage to and no less than the limits the school district carried for the usual transportation in connection with school activities. Id. The court thus concluded that the effect of § 13-29-1 was “simply to prevent stacking liability coverages where the use of the bus is granted to the nonprofit organizations” and that the “liability aspect” of that section was simply inapplicable to the facts of the case. Id. The court rejected, without further explanation, the school district’s statutory sovereign immunity argument that there are three independent bases for sovereign immunity, with individual statutes such as § 13-29-1 composing the third leg of the triad, that must be specially waived by statute, because it ignored the history of sovereign immunity. Id. at 262 (the other two legs being common law and the state constitution). The court explained that “[t]he immunity language of SDCL 13–29–1 did nothing more than reiterate the common law concept of sovereign immunity embodied in the South Dakota Constitution, art. III, § 27 [,which provides that the legislature shall direct by law in what manner and in what courts suits may be brought against the state]. . . . It does not create the special variety of sovereign immunity urged by [the school district].” Id., citing Celia Miner, Comment, An Analysis of South Dakota’s Sovereign Immunity Law: Governmental v. Official Immunity, 28 S.D. L. Rev. 317, 321 (1983) (Comment) (noting case law recognizes “dual common and constitutional law basis” for sovereign immunity); see Kyllo v. Panzer, 535 N.W.2d 896, 898-900 (S.D. 1995) (reviewing history of personal liability of public employees under sovereign immunity scheme). The court then reviewed the history of sovereign immunity as applied to school districts: -15- For many years, this court held unequivocally that school districts were immune from tort actions because they are state agencies wielding a distributive portion of the sovereign power of the state. . . . After the passage of SDCL 21-32-15 in 1981, it appeared that school districts had waived sovereign immunity if the commissioner of administration purchased liability insurance. But in Holland v. Yankton School Dist. 63-3, 375 N.W.2d 199 (S.D. 1985), a case where school district employees spilled hot soup on a student, we held that school districts were not one of the state agencies that was included in the liability coverage purchased by the commissioner of administration and upheld summary judgment in the case because sovereign immunity had not been waived. We surmise that the legislature sought to overcome this problem in 1986 by authorizing school districts to waive sovereign immunity under the rubric of “public entities.” SDCL ch. 3-21, enacted as Chapter 4 of the Session Laws of 1986, is entitled “Liability for Public Entities and Public Officials.” SDCL 3-21-1(1) defines public entities. . . . [as] the state of South Dakota, all its branches and agencies, boards and commissions. . . . [and] also includes all public entities established by law exercising any part of the sovereign power of the state, including, but not limited to municipalities, counties, school districts . . . . Id. (the public entity definition is now in S.D. Codified Laws § 3-22-2(12) (Michie Supp. 1997)). The court held the school district, a public entity, had purchased liability insurance and so had waived its sovereign immunity to the limit of its insurance coverage. Id. The present case is similar to Brown except that the public entity is a county instead of a school district. The distinction noted in Siefkes between the purchase of insurance by the state or by the county is not relevant in the present case because § 21-32A applies. Here, the county has either participated in a risk sharing pool or -16- purchased liability insurance coverage. Appellant’s Appendix at 20 (Order for Form 35) (identifying insurance carrier as South Dakota Public Assistance Alliance). Thus, pursuant to S.D. Codified Laws §§ 21-32A-1, -2, the county waived sovereign immunity, to the extent that coverage is afforded thereunder, and consented to suit in the same manner that any other party may be sued. See Bland v. Davison County, 566 N.W.2d 452, 461 n.9 (S.D. 1997) (noting county waived sovereign immunity defense by purchasing liability insurance pursuant to § 21-32A-1); id., 507 N.W.2d 80, 82 (S.D. 1993) (Wuest, J., concurring specially) (holding county waived sovereign immunity to extent liability insurance coverage exists). However, because we agree with the district court that S.D.Codified Laws § 3-21-9 provided defendants with a complete defense to Webb’s state negligence claim, we affirm the district court’s decision that Webb failed to state a claim for that reason. Section 3-21-9 provides in part that “[n]o person [or] political subdivision . . . is liable . . . for any injury caused by or resulting from . . . a prisoner to any other prisoner . . . or . . . services or programs administered by or on behalf of the . . . jail.” Although we have found no definitive construction of this particular statute by the South Dakota courts, case law sometimes refers to this defense as “statutory immunity.” See B.W. v. Meade County, 534 N.W.2d 595, 596-97 (S.D. 1995) (holding “statutory immunity” per state statute protected public officials or employees involved in investigation of child abuse from negligence liability); see also Martinez v. California, 444 U.S. 277, 281-82 (1980) (holding state statute which granted “absolute immunity” from liability for any injury resulting from parole release decisions and thus provided public employees with complete defense to state tort claim was not unconstitutional unless wholly arbitrary or irrational); Davis v. Fulton County, 90 F.3d 1346, 1354 (8th Cir. 1996) (holding “statutory immunity” per state statute protected sheriff’s department employees from tort liability for claims of negligence brought against them in their official or individual capacity). -17- “Statutory immunity” is related to sovereign immunity or at least to the concept of “official” immunity. See Comment, 28 S.D. L. Rev. at 318, 324-33 (distinguishing sovereign immunity meaning “governmental” immunity of state and political subdivisions from “official” immunity afforded public employees sued in representative capacity or for discretionary acts). The terms are confusing. Nonetheless, we do not think the South Dakota Supreme Court would hold that the application of “statutory immunity” in the present case is necessarily inconsistent with Brown’s rejection of “the special variety of [statutory] sovereign immunity urged by [the school district]” in that case. First, unlike Brown, the present case does not involve potentially overlapping insurance coverage. Next, because the court in Brown construed the statute to preclude any possible stacking of liability coverage and concluded that the “liability aspect” of the statute was inapplicable, it did not have to construe the “liability aspect” of the statute. 449 N.W.2d at 261 (§ 13-29-1 provided that “[i]f the use of a school bus is granted by the school board pursuant to subdivision (1) or (8) of § 49-28-2 [excluding certain motor vehicles from the definition of motor carriers for the purpose of regulation under the Public Utilities Commission (PUC)], the school district is not liable for suit or damages which may arise as the result of the use”). It is precisely the “liability aspect” of the statute that is at issue in the present case, that is, whether the statute grants immunity from civil liability or provides a complete defense. Even though § 3-21-9 refers to liability (no person is liable for any injury) and § 26-8A-14 expressly refers to immunity (any person is immune from any liability), we think the result is the same-- § 3-21-9 provides defendants with a complete defense as a matter of law. See Martinez v. California, 444 U.S. at 280-82 (similar liability language was held to provide a complete defense to state tort claims). Finally, construing § 3-21-9 to provide a complete defense to liability for negligence in making jail cell assignments does not conflict with recent South Dakota “official” immunity cases. See, e.g., Kyllo v. Panzer, 535 N.W.2d at 901-03 (holding -18- §§ 21-32-17, 21-32A-2 unconstitutional in violation of open courts provision so far as they extend sovereign immunity to state employees performing ministerial as opposed to discretionary functions; two cases involved ministerial act of operation of motor vehicles by state employees); Ritter v. Johnson, 465 N.W.2d at 198-99 (case involved ministerial act of state employee’s ordering truck driver to weigh station); cf. Dykstra v. United States Bureau of Prisons, No. 97-3410, 1998 WL 154458, at *2 (8th Cir. Apr. 6, 1998) (noting discretionary function exception to waiver of sovereign immunity under the Federal Tort Claims Act). “State employees are cloaked in sovereign immunity when performing discretionary acts because ‘such discretionary acts participate in the state’s sovereign policy-making power.’” Kyllo v. Panzer, 535 N.W.2d at 902, citing Ritter v. Johnson, 465 N.W.2d at 198. Immunity is critical to the state’s evident public policy of allowing those in charge of jails to make discretionary decisions about prison administration without fear of tort liability. See Martinez v. California, 444 U.S. at 283 n.6 (noting stated purpose of immunity statute is to allow parole officials to make determinations of release or parole unfettered by any fear of tort liability); B.W. v. Meade County, 534 N.W.2d at 597 (noting immunity is critical to state’s public policy of protecting reporting and investigation of child abuse without fear of reprisal). Webb does not claim that defendants acted intentionally, were not acting within the scope of their authority or performing county functions, or were performing merely ministerial acts. We agree with the district court that the statutory immunity defense applies only to defeat a tort claim arising under state law. Accordingly, we affirm the judgment of the district court. -19- A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -20-	{ "pile_set_name": "FreeLaw" }
582 F.Supp. 1377 (1984) L. FATATO, INC., N.Y.S.-T.S. Beverage Corp., and Vasiliow Co., Inc., Plaintiffs, v. MILLER BREWING COMPANY, Defendant. No. 82 CV 3999. United States District Court, E.D. New York. March 22, 1984. Composto & Longo, Brooklyn, N.Y. (Mark A. Longo, Brooklyn, N.Y., of counsel), for plaintiffs. Arnold & Porter, Washington, D.C., Conboy, Hewitt, O'Brien & Boardman, New York City (Bruce L. Montgomery, Thomas H. Milch, Douglas L. Wald, Washington, D.C., of counsel), for defendant. MEMORANDUM AND ORDER McLAUGHLIN, District Judge. Plaintiffs in this diversity-based action seek damages for breach of contract and unjust enrichment based on an alleged oral beer distribution agreement with defendant Miller Brewing Company ("Miller"). Miller 1378 has moved for summary judgment pursuant to Fed.R.Civ.P. 56, arguing that the contract claims are barred by New York's statute of frauds and that the unjust enrichment claim fails to state a claim upon which relief can be granted. For the reasons stated below, defendant's motion is denied. Facts Plaintiff corporations ("Fatato", "NYSTS", and "Vasiliow") are wholesale beer distributors in New York State. Miller, a Wisconsin corporation doing business in New York State, is a brewer of beer. DeCrescente Distributing Co. ("DeCrescente") and the now-defunct Better Brands of New York, Inc. ("Better Brands") were New York distributors of Miller products. Plaintiffs allege that Better Brands, a wholly-owned subsidiary of Miller, was experiencing labor difficulties during the early part of 1979, causing an interruption in the flow of Miller beer into the New York City area. Plaintiffs allege that Miller, acting through DeCrescente as its agent, offered plaintiff Fatato an exclusive distributorship of its products in Kings, New York, Bronx, and Westchester Counties if Fatato could, despite the "strike activities" of Local 812 of the Soft Drink Workers Union, "maintain an uninterrupted flow of beer to all the major supermarkets, local home distributors, taverns, restaurants and pubs previously serviced by" Better Brands. In exchange for such distribution during the strike, Miller allegedly offered to continue the exclusive distributorship with Fatato or its designees after the strike. Plaintiffs apparently agreed and began to distribute Miller beer. They allegedly spent large sums to improve their equipment and warehousing capabilities and also sustained property damage as a result of the labor unrest. They attribute these damages to their compliance with defendant's demand that the flow of Miller products be uninterrupted during the strike, and allege that Miller was thereby unjustly enriched "in the maintenance of its reputation and public image regarding the quality and availability of its products and in its profits." Plaintiffs next allege that in July 1980, after the strike had ended and Better Brands had ceased doing business, DeCrescente informed them that their orders for Miller products would no longer be honored. Defendant then granted distributorships in the counties in question to other concerns. As a result of defendant's alleged discharge of plaintiffs in breach of the agreement, plaintiffs claim to have suffered what they term "damage ... and unjust enrichment to defendant" in the amount of one million dollars each. Defendants have moved for summary judgment dismissing the complaint, on the grounds that the claim for breach of contract is barred by New York's statute of frauds and the claim for unjust enrichment is insufficient as a matter of law. Discussion I. The Contract Claims Defendant asserts that plaintiffs' contract claims are barred by New York's statute of frauds' which provides: a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime. New York General Obligations Law § 5-701. Miller contends that the alleged distribution agreement runs afoul of this "one-year provision" because it is not evidenced by a writing. Plaintiffs admit that no memorandum exists. They contend, however, that the agreement does not fall within the statute because it was performable within one year. Plaintiffs allege that the oral agreement called for them to distribute Miller 1379 beer for the duration of the strike, whereupon Miller was to give plaintiffs a written distribution contract. The "agreement was to be performed while Miller negotiated a settlement with the striking employees of ... Better Brands, Inc. which in fact took place within one year." Plaintiffs Memorandum in Opposition to Motion of Defendant for Summary Judgment at 8. Defendant correctly points out, however, that such an agreement may still be within the statute. "The law is well settled that an oral agreement to execute an agreement that is within the statute of frauds is itself within the statute, and unenforceable." Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339, 343 (2d Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 146, 11 L.Ed.2d 110 (1963). On this motion for summary judgment, however, there is no need to decide whether the agreement falls within or without the statute of frauds because the plaintiffs have asserted that, even if the case is within the statute, equitable considerations protect them. They allege that they incurred expenses for improvements and repairs in reliance on Miller's alleged promise. Section 217A of The Restatement (Second) of Contracts states that a promise that has induced detrimental reliance may be enforceable notwithstanding the statute of frauds if injustice can be avoided only by enforcement, and the Restatement enumerates the factors to be taken into account in making that determination. See Calamari & Perillo Law of Contracts § 19-48 (1977). The existence of those factors in a particular case is a factual controversy that does not lend itself to resolution on a motion for summary judgment. Although the Restatement doctrine has not been given a warm reception in New York, see Philo Smith & Co., Inc. v. USLIFE Corp., 554 F.2d 34, 36 (2d Cir.1977); Marcraft Recreation Corp. v. Francis Devlin Co., 506 F.Supp. 1081, 1085 (S.D.N.Y.1981), plaintiffs should have the opportunity to establish the facts which might support an estoppel. I therefore deny defendant's motion for summary judgment dismissing the contract claims. II. The Unjust Enrichment Claims Plaintiffs also assert claims for "unjust enrichment," a quasi-contractual claim for restitution. A contract that is unenforceable under the statute of frauds may give rise to such a recovery on the basis of an implied contract. See Calamari & Perillo Law of Contracts § 19-40 (1977). The existence of such an implied contract is a question of fact. 22 NY Jur 2d Contracts § 543 at 548. Defendant points out that a claim for unjust enrichment requires proof (1) that "defendant was enriched; (2) that such enrichment was at the expense of the plaintiff; [and] (3) that the circumstances were such that in equity and good conscience the defendant should make restitution." In re D.H. Overmyer Co., 19 B.R. 750, 755 (Bkrtcy.S.D.N.Y.1982); accord, Schuler-Haas Electric Corp. v. Wager Construction Corp., 57 A.D.2d 707, 395 N.Y.S.2d 272, 274 (1977); Lengel v. Lengel, 86 Misc.2d 460, 382 N.Y.S.2d 678, 681 (Sup. Ct.1976). The expenses of or damages to the plaintiffs do not necessarily constitute gain to the defendant. Alko Manufacturing Co. v. Neptune Meter Co., 20 A.D.2d 635, 635, 246 N.Y.S.2d 265 (1964), aff'd 16 N.Y.2d 777, 209 N.E.2d 819, 262 N.Y.S.2d 500 (1965). Here, however, plaintiffs have also alleged that their performance of distribution services enabled Miller to keep its products available during the strike, with consequent maintenance of Miller's public reputation. Whether defendants were so "enriched", and whether this enrichment, if proved, would "in equity and good conscience" require defendant to make restitution are genuine issues for trial. Fed.R. Civ.P. 56(e). Accordingly, defendant's motion for summary judgment dismissing plaintiffs' unjust enrichment claim is also denied. SO ORDERED.	{ "pile_set_name": "FreeLaw" }
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384 U.S. 435 (1966) DAUGHERTY v. TENNESSEE. No. 1435, Misc. Supreme Court of United States. Decided June 6, 1966. APPEAL FROM THE SUPREME COURT OF TENNESSEE. Appellant pro se. George F. McCanless, Attorney General of Tennessee, and Thomas E. Fox, Assistant Attorney General, for appellee. PER CURIAM. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.	{ "pile_set_name": "FreeLaw" }
ACCEPTED 04s12s00442sCV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/26/2015 2:12:45 PM KEITH HOTTLE CLERK	{ "pile_set_name": "FreeLaw" }
433 A.2d 757 (1981) Thomas S. ROCHE and Marylou Roche v. Robert W. EGAN, Geraldine A. Egan, Frederick L. Brown, Sandra J. Brown, Frank J. Fulhan, Jr., and Josephine A. Fulhan. Supreme Judicial Court of Maine. Argued January 6, 1981. Decided August 12, 1981. 758 Michael J. LaTorre, orally, Portland, Alton L. Yorke, South Portland, for plaintiffs. Drummond & Drummond, Horace W. Horton, orally, Portland, for defendants. Before WERNICK, GODFREY, NICHOLS, GLASSMAN,[] ROBERTS and CARTER, JJ. WERNICK, Justice. A jury in the Superior Court (Cumberland County) found that defendants Robert and Geraldine Egan, Frederick and Sandra Brown, and Frank and Josephine Fulhan committed a libel against plaintiff Thomas S. Roche, which caused damages to both him and his wife, plaintiff Marylou Roche. Awarding each of them compensatory damages, the jury also awarded punitive damages to plaintiff Thomas Roche. A judgment was entered against each defendant from which that defendant has appealed. We conclude that there was a critical ambiguity in the rationale underlying the verdict form regarding damages, in consequence of which judgments were entered that do not clearly show the total amount of damages plaintiffs are entitled to recover. We also conclude that as to the liability of defendants to plaintiffs, the presiding justice gave instructions to the jury that were not in accord with constitutional requirements. We therefore sustain each appeal, set aside the judgment against each defendant, and remand the case to the Superior Court for further proceedings. Plaintiff Thomas Roche is a detective of the South Portland Police Department. At trial, the uncontradicted testimony of his colleagues praised Roche as a dedicated, capable and level-headed officer who had received at least a dozen citations for outstanding police work. In the discharge of 759 his primary duties to investigate crimes and to arrest criminal offenders, Roche, who was on call twenty-four hours a day, carried a revolver to and from work. Other than the letter at issue in this case, the South Portland Police Department had never received any complaint about Detective Roche or about his carrying a revolver to and from work. In early August, 1977 Ralph Segal, Chief of the Department, received a letter, reading: "Dear Chief Segal: "We concerned parents are requesting that patrolman Thomas Roche be restricted from carrying a weapon to his residence on 14 Fenway Road, Cape Elizabeth, Maine. "He has harrassed [sic] neighbors with foul language, has displayed a VIOLENT temper, threatened little children, kicked pets and called the Cape Elizabeth Police Department needlessly. His conduct is most disgraceful, first as a human being and second as a public servant. "We want it known that we are afraid for the lives of our children and our own around this most disruptive person. "Very truly yours. . . ." The letter was signed by the six defendants, neighbors of the plaintiffs on Fenway Road, Cape Elizabeth. It was also signed by Rita and John Slebodnik, former neighbors who had moved out of state before this action was instituted. Upon receipt of the letter, the Department undertook a formal investigation of Roche's conduct. During the first two weeks of the investigation, complying with a request of the Department, Detective Roche left his revolver at the station instead of carrying it home. Sergeant Robert Schwartz conducted the Department investigation. He testified at trial that the responses he received during interviews with the defendants seemed rehearsed, that he could find no substance to any of the charges made in the letter, and that there apparently was a "problem" in the neighborhood but it was unrelated to the wrongdoing alleged against Detective Roche.[1] Plaintiffs emphatically denied the truth of every allegation in defendants' letter. Perhaps what was the gravest of the allegations 760 conveyed was one not expressly stated but obviously implied: Thomas Roche is too hot-tempered, violent, and unstable a person to be safely entrusted with a police weapon in his neighborhood; he might shoot somebody, possibly a child.[2] 1. We consider, first, the difficulty that requires us to set aside the award of damages. In a special verdict form the jury was asked to specify an amount of damages it assessed against each defendant. The jury completed the verdict form in a manner showing that it found each defendant liable (a) to plaintiff Thomas Roche for $2,000 compensatory damages and also for $4,000 punitive damages, and (b) for $1,500 compensatory damages "for the benefit of plaintiff Marylou Roche" (for her loss of consortium). In purported correspondence with these jury findings, twelve separate judgments were entered on the Superior Court docket. In favor of plaintiff Thomas Roche a separate judgment for $6,000 damages was entered against each of the six defendants; in favor of plaintiff Marylou Roche a separate judgment for $1,500 compensatory damages was entered against each of the six defendants. The problem we confront is that had the jury's intention been to award to plaintiff Thomas Roche an aggregate total amount of $12,000 compensatory damages and of $24,000 punitive damages, and to plaintiff Marylou Roche an aggregate total amount of $9,000 compensatory damages, the evidence in this case would support that amount of damages. The problem is compounded because the verdict form nowhere called for the jury to state a total amount of damages each plaintiff was entitled to recover. In short, the way the verdict form was set up may well have misled the jury into apportioning intended total recoveries of $36,000 and $9,000 in equal shares among the six defendants. On the other hand, and again the record affords us no basis for knowing one way or the other, the jury may not at all have apportioned a total award. Rather, the jury may have decided, and the determination would not have been irrational on the evidence, that plaintiff Thomas' total recovery should be only $6,000 ($2,000 compensatory and $4,000 punitive damages) and plaintiff Marylou's total recovery should be only $1,500 compensatory damages. On this alternative, the judgments entered on the docket would reflect the situation as being that a satisfaction of the amount specified in any one particular judgment in favor of Thomas would constitute a satisfaction of each other judgment in favor of Thomas, and a satisfaction of one particular judgment in favor of Marylou would constitute a satisfaction of each other judgment entered in her favor. See, e. g., Hutchins v. Emery, 134 Me. 205, 207, 183 A. 754 (1936). Defendants brought this problem to the attention of the presiding justice in a motion they filed asking for judgment notwithstanding the verdict of the jury or, alternatively, for a new trial. The justice denied the motion, and defendants raise the issue again in this appeal. The source of the difficulty confronting us is that the plaintiffs and the presiding justice, but not the defendants, proceeded on the rationale that the defendants in this case were not joint or concurrent tortfeasors who had caused a single injury but, rather, were independently acting tortfeasors each causing a separate injury. This was error of law; in this case defendants acted jointly, or concurrently, to cause a single injury. Maine adheres to the widely recognized common law rule that a jury may not apportion damages for a single injury caused by joint, or concurrent, tortfeasors. See, e. g., Currier v. Swan, 63 Me. 323 761 (1873). That rule was designed not to protect such tortfeasors but, rather, to assure that a plaintiff who is unable to collect the amount of the judgment from one joint, or concurrent, tortfeasor can collect it from another. Where, within the framework of the verdict, there is a clear basis for discerning an aggregate, or gross, amount of damages as the intended total recovery of damages for a single injury, we have not hesitated to strike an attempted apportionment, treating it as a mere recommendation or surplusage. Currier v. Swan, supra; see also Atherton v. Crandlemire, 140 Me. 28, 33 A.2d 303 (1943). In the present situation, however, we cannot tell the total amount of damages intended to be awarded. As we have already mentioned, the verdict form nowhere called for the jury to specify a total amount of damages each plaintiff was entitled to recover. In addition, nothing was said to the jury in the presiding justice's instructions about the rationale underlying the verdict form: i. e., whether it called upon the jury (a) to award against each defendant the total amount for which said defendant was liable for having caused a single indivisible and non-apportionable injury, or (b) to award against each defendant the total amount of damages for that separate one of six injuries caused by the separate and independent tortious conduct of that particular defendant (which would have been improper). Hence, we cannot tell what the jury was intending by its completion of the verdict form: whether it contemplated that the total damages awarded against each defendant be $36,000 to Thomas Roche and $9,000 to Marylou Roche or, rather, that the total damages awarded against each defendant be $6,000 to Thomas and $1,500 to Marylou. We must not substitute our judgment for that of the jury, or even risk doing that by purporting to infer what the jury may have intended. We must, therefore, set aside the damages part of the judgments entered and order a new trial at least on the issue of damages. See Mixon v. Riverview Hospital, 254 Cal.App.2d 364, 62 Cal.Rptr. 379 (1967); Stoewsand v. Checker Taxi Co., 331 Ill.App. 192, 73 N.E.2d 4 (1947); Saucier v. Walker, 203 So.2d 299 (Miss.1967); but see Spears v. McKinnon, 168 Ark. 357, 270 S.W. 524 (1925). 2. The remaining question is whether a new trial may be confined to the issue of damages or whether there must be an entire new trial because of errors in the adjudication of liability. Before the jury retired to consider its verdict, the defendants requested the presiding justice to instruct that Detective Roche was a "public official", within the meaning of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and that, therefore, the jury could find that defendants had committed a libel of Detective Roche only if the evidence established with "convincing clarity" that defendants had published their letter in "reckless disregard of the truth." See Michaud v. Inhabitants of Town of Livermore Falls, Me., 381 A.2d 1110 (1978). The holding of New York Times v. Sullivan, supra, was that the constitutional guaranties underlying the First and Fourteenth Amendments require "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-80, 84 S.Ct. at 726 (emphasis added). In the case at bar, then, two questions were precipitated for the presiding justice by the potential applicability of the New York Times v. Sullivan holding:[3] (1) the applicability 762 of the public official concept to a city police detective; (2) the relationship of the alleged libel to a public official's "official conduct", or, as that phrase has since been reformulated by the Supreme Court, to "anything which might touch on . . . [the] official's fitness for office", see Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964); Monitor Patriot Co. v. Roy, 401 U.S. 265, 274, 91 S.Ct. 621, 626, 28 L.Ed.2d 35 (1971). The presiding justice characterized Thomas Roche as a "public employee", intending thereby to decide that he was not a "public official" for the purposes of the requirements of New York Times v. Sullivan. Accordingly, the justice instructed the jury that it could return a verdict against the defendants if it found by a fair preponderance of the evidence that the defendants had acted "negligently." We decide that this instruction was error and that the error requires the setting aside of the judgment for plaintiffs. The Supreme Court of the United States has never defined the exact contours of the "public official" concept. Although that Court has stopped short of the conclusion that all "public employees" are "public officials", see Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8, 99 S.Ct. 2675, 2680 n.8, 61 L.Ed.2d 411 (1979), it has nevertheless emphasized that "the `public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966). Law enforcement is a uniquely governmental affair. The police detective, as one charged with investigating crimes and arresting the criminal, is in fact, and also is generally known to be, vested with substantial responsibility for the safety and welfare of the citizenry in areas impinging most directly and intimately on daily living: the home, the place of work and of recreation, the sidewalks and streets. The nature and extent of the responsibility of a police detective is punctuated by the fact that a firearm, no less than a badge, comes with his office. Our research has disclosed that every court that has faced the issue has decided that an officer of law enforcement, from ordinary patrolman to Chief of Police, is a "public official" within the meaning of federal constitutional law. See, e. g., Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977); Thuma v. Hearst Corp., 340 F.Supp. 867 (D.Md. 1972); Jackson v. Filliben, 281 A.2d 604 (Del.1971); Coursey v. Greater Niles Township Publishing Corp., 40 Ill.2d 257, 239 N.E.2d 837 (1968); Kidder v. Anderson, 354 So.2d 1306 (La.1978), cert.denied 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123 (1978); Gilligan v. King, 48 Misc.2d 212, 264 N.Y.S.2d 309 (1965); Colombo v. Times-Argus Ass'n. Inc., 135 Vt. 454, 380 A.2d 80 (1977); Starr v. Beckley Newspapers Corp., 157 W.Va. 447, 201 S.E.2d 911 (1974). See generally Annot. 19 A.L.R.3d 1361 § 5(d) (1968 and Supp. 1980). The Supreme Court, in the course of deciding other issues emerging from New York Times v. Sullivan, supra, has not hesitated to accept such decisions by federal and state courts. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). In Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965), the Supreme Court itself applied the requirements of New York Times v. Sullivan to a law enforcement officer. Plaintiffs maintain, alternatively, that despite Thomas Roche's status as a "public official", defendants' conduct should not be judged by the New York Times v. Sullivan criteria because, here, the libelous letter was directed not at his official responsibilities but rather at his purely private, offduty 763 conduct. Plaintiffs point out that the language in Garrison v. Louisiana, supra, embracing within the "public official" standard "anything that might touch on an official's fitness for office" is too broad to be mechanically applied. To preserve for Officer Roche some right to an action for purely private defamation, the plaintiffs advocate the approach of the Restatement of Torts: "The extent to which a statement as to his private conduct should be treated as affecting him in his capacity as a public official cannot be reduced to a specific rule of law. The determination depends upon both the nature of the office involved, with its responsibilities and necessary qualifications, and the nature of the private conduct and the implications that it has as to his fitness for the office. Thus a statement that the governor drinks himself into a drunken stupor at home every night much more clearly affects his qualifications than a statement that a tax assessor keeps a secret collection of pornographic pictures." Restatement (Second) of Torts § 580-A, comment b (1977) (emphasis added). It may well be that the "fitness for office" language used in Garrison should not be mechanically applied.[4] Yet, even were we to assume that the letter's explicit charges harassing neighbors with foul language, displaying a violent temper, threatening little children, kicking pets, and needlessly calling the Cape Elizabeth Police Department remain in the realm of purely private defamation,[5] the most serious complaint, that Detective Roche was too unstable to be safely entrusted in the neighborhood with an official weapon, unquestionably impugns his "fitness for office."[6] Moreover, the letter on its face unequivocally states that Detective Roche's "conduct is most disgraceful . . . as a human being and . . . as a public servant." In these circumstances we need not decide whether it is always, and exclusively, the judge who makes the determination that the published matter does, or does not, relate to "anything which might touch on. . . [the public official's] fitness for office", or whether aspects of that determination are properly to be left to the fact-finder under appropriate instructions from the judge. We decide that, here, the content of 764 the letter itself is sufficiently plain to foreclose as rational any conclusion other than that the defamatory matter, as published, touched upon Thomas Roche's fitness for office. As a matter of law, in short, the plain meaning of the statements objectively expressed overrides any purely subjective intent to the contrary that one or more of the defendants who signed the letter may have mentioned. Hence, nothing was legitimately open for determination by the jury as fact-finder. Plaintiffs' last argument to sustain the adjudication of liability focuses on the jury's having awarded punitive damages. Plaintiffs contend that any error arising because the presiding justice refused to give the instruction as to liability required by New York Times v. Sullivan, supra, must be deemed cured by the jury's having awarded punitive damages. The argument is that the criterion under Maine law to justify an award of punitive damages, as to which plaintiffs say the justice correctly instructed the jury, encompasses the factual findings required by New York Times v. Sullivan regarding liability. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 156-57, 87 S.Ct. 1975, 1992, 18 L.Ed.2d 1094 (1967). Here, the justice charged as to punitive damages in pertinent part as follows: "[I]n order to recover punitive damages, it must be clear and convincing evidence that the defendants acted with actual malice in publishing the ... letter. * * * * * * "A publication is made with actual malice as that term is used if it is made with knowledge that it is false or with reckless disregard of whether it is false or not, a wrongful act known to be such and intentionally done without cause or excuse constitutes malice." (emphasis added) The justice continued: "Absence of probable cause [to believe the letter's statement] may serve as evidence of malice, but it is not identical with malice and you, as factfinders, are not obligated to infer malice from the absence of probable cause. Such an inference is proper only when the absence of probable cause establishes in your minds by a fair preponderance of the evidence that there is malice." (emphasis added) Arguably, the justice's instructions on punitive damages cannot be relied on to supply what New York Times v. Sullivan requires as to liability, if only because the instructions intermixed "clear and convincing evidence" with the standard of "fair preponderance of the evidence." The former, not the latter, is the constitutionally required standard of proof, e. g., Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 30, 91 S.Ct. 1811, 1813, 29 L.Ed.2d 296 (1971). In any event, even if we assume that the jury found the evidence "clear and convincing" that defendants acted in "reckless disregard of the truth" and therefore should pay punitive damages, we cannot on that basis deem it harmless error that the justice failed to instruct on liability in accordance with the New York Times criterion. As we have already decided, the damages part of the judgments cannot stand. A retrial on the issue of damages, at which substantially all of the evidence admitted in this trial is likely to be admitted again, is therefore unavoidable. A second jury, on retrial, might well assess damages differently and find that no punitive damages should be awarded. It would thus be logically inconsistent, and practically incongruous, for us to make the findings of the first jury in assessing damages controlling, and in effect the "law of the case" with respect to liability, while we simultaneously create the opportunity for those very findings to be repudiated, by requiring a second jury to determine what damages shall be awarded. In sum, the only sound solution of the problems presented is a new trial of the entire case. 3. Even though, ordinarily, this disposition of the case would make unnecessary consideration of any of the other errors assigned, we discuss two other issues that could assume importance in another trial. 765 Defendants have claimed that plaintiffs must show physical injury to Thomas Roche before Marylou Roche can recover for loss of consortium. No direct authority is cited for this singular proposition, and we reject it out of hand. "[D]efamation has long been regarded as a form of `psychic mayhem', not very different in kind, and in some ways more wounding, than physical mutilation." L. Tribe, American Constitutional Law 649 (1978). We therefore perceive no reasoned basis for a holding that would make physical injury, as such, a touchstone of recovery for loss of consortium. Cf. Vicnire v. Ford Motor Credit Co., Me., 401 A.2d 148, 154 (1979). Defendants have also contended that the presiding justice committed error in refusing to instruct, as requested, on the privileges of a person living in a community (1) to make statements to a police officer (Chief Segal) for the purpose of protecting one's property, see, e. g., Parker v. Kirkpatrick, 124 Me. 181, 126 A. 825 (1924), and (2) to communicate to a police officer for the purpose of aiding in the detection of crime, see, e. g., Elms v. Crane, 118 Me. 261, 107 A. 852 (1919). These common law privileges are conditional privileges; they are lost if the defamatory statements claimed to be thus privileged are not published with an honest belief in their truth, a belief that must be based upon reasonable grounds. See, Boulet v. Beals, 158 Me. 53, 177 A.2d 665 (1962) and cases cited therein. Because under New York Times v. Sullivan, supra, the defendants can be held liable only if it is shown that they acted with "reckless disregard of the truth", the giving of the New York Times instruction we have held necessary will obviate any need for further instructions on the common law conditional privileges. If there has been a reckless disregard of the truth, those privileges do not afford protection and therefore cannot affect defendants' liability; if there has not been a reckless disregard of the truth, defendants cannot be liable and, therefore, whether or not the conditional privileges would protect them is of no consequence as to their liability. The entry shall be: Appeal of each defendant sustained; the judgment against each defendant is set aside; case remanded to the Superior Court for further proceedings consistent with the opinion herein. All concurring. NOTES [] GLASSMAN, J., sat at argument and participated in conference but died before the opinion was adopted. [1] The testimony of witnesses for plaintiffs, which the verdict of the jury shows was believed, gave the following account of the neighborhood and its "problem." During the time the Roche family lived in this particular neighborhood in Cape Elizabeth, it suffered unexplained, unprovoked "[h]arassment day after day after day." On four different evenings in a row one of the defendants was heard to call out: "[W]e can come out on the porch tonight and sit down kids because the pig is out back. The air is not polluted. The dirty rotten pig is out in his back yard." The same defendant was observed repeatedly taunting nine-year old Susan Roche with a threat of "getting" Susan's cat and having it "gassed", telling another child to "beat" Susan Roche until blood was drawn, and urging the child of two other defendants, who appear to have been rarely at home, to "go do stuff" to the Roche family. "Stuff" was done on what gradually became a daily basis. When Mrs. Roche would appear outside, children of the defendants would taunt her with obscene gestures and vindictive names; when she would remain inside, snowballs, rocks, and rotten eggs were hurled against her home. The Roches' children suffered repeated teasing and abuse at the neighborhood bus stop. By the summer of 1977, Mrs. Roche appeared to be near a nervous breakdown. On one evening Thomas Roche requested a neighbor to sit with his wife, asking in a cracking voice why they were objects of such hostility and what he had done to deserve it. To Roche's question, the record yields little answer. One of the witnesses whose testimony related to this question was David Cavalero, former occupant and seller of the Roche home. Cavalero, on hearing of what he described as the "investigation in[to] Tom Roche's conduct as a police officer", wrote an unsolicited letter of sympathy with Roche and sent it to the South Portland Police Department. Cavalero's letter stated that while he was living in the neighborhood, he and his family had suffered "incredible and unprovoked harassment", including "abusive language, snide remarks, lies" and disregard of property; that the children of the offenders had been taught to act and speak as their parents did; and that, for their peace of mind and the well-being of their own children, Cavalero and his family had been "literally forced to move." By the time this action was under way, the Roches, too, were living in another part of Cape Elizabeth. [2] This obvious implication of the letter, the avowed purpose of which was to restrict Detective Roche from carrying a gun to his home, flows from the letter's having been written by persons who referred to themselves as "parents" being "concerned" about a man who "threatened little children" for whose lives the parents "are afraid." [3] In Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966), the Supreme Court observed: "[A]s is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a `public official.'" And see Logan v. District of Columbia, 447 F.Supp. 1328, 1331, (D.D.C. 1978); Clawson v. Longview Publishing Co., 91 Wash.2d 408, 423, 589 P.2d 1223, 1226 (1979). [4] The plaintiffs cite Aku v. Lewis, 52 Haw. 366, 477 P.2d 162 (1970) in support of their position that New York Times was not meant to constrict defamation actions based on statements concerning the "unofficial" conduct of a "public official." In Aku a defendant news broadcaster charged over the air that the plaintiff, who the defendant did not know was a policeman, was fraudulently using a fellow broadcaster's trade name in order to raise funds for a Pop Warner football team. The court held that, although the plaintiff was a "public official", the defendant's statement related solely to the plaintiff's unofficial, private conduct as youth football coach. New York Times was thus found inapplicable. Had the court relied on Garrison, mechanically applying the "fitness for office" test, the result in Aku might have been different. See also Tucker v. Kilgore, 388 S.W.2d 112 (Ky.1964) (New York Times inapplicable to charges that plaintiff police officer who had removed black defendant from fraternal meeting was a member of a racist organization, was a "moocher", and lacked the nerve to arrest defendant). We distinguish these cases primarily on the ground that in our view any statement to a police officer's superior expressing concern about that officer's official weapon must bear upon his "fitness for office." [5] Not all the testimony unambiguously confirms that the incidents which allegedly gave rise to the letter occurred while Officer Roche was off duty. For example, a child of two of the defendants claimed that once, while he was riding his bicycle, Officer Roche ran him off the road with his car. The same child also asserted that Thomas Roche had unjustifiably queried him about shoplifting while the latter was performing overtime guard duties in uniform at the Maine Mall. The charge of needless calling of the Cape Elizabeth Police Department, regardless of whether such calls occurred on or off duty, can be interpreted as a charge of abusing the leverage conferred upon the plaintiff solely by virtue of his office. Cf. Cabin v. Community Newspapers, Inc., 27 A.D.2d 543, 275 N.Y.S.2d 396 (1966) (defamatory charge that school board member prevailed upon teacher to upgrade the marks of member's son). [6] Chief Segal cogently made the point by his testimony that the detective who cannot be trusted in taking home his gun will cease being a detective.	{ "pile_set_name": "FreeLaw" }
278 So.2d 56 (1973) STATE of Louisiana v. John David ROBERTS. No. 52985. Supreme Court of Louisiana. May 7, 1973. Rehearing Denied May 29, 1973. 57 Calvin W. Eason, Jr., Lake Charles, for defendant-appellant. William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, Asst. Atty. Gen., Frank T. Salter, Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee. BARHAM, Justice. John David Roberts was convicted after trial by a five-man jury of unlawful delivery of barbiturates and central nervous system stimulants, a violation of R.S. 40:1033(1), and was sentenced to serve two years in the parish jail. For reversal on this appeal he relies on 18 bills of exceptions taken to rulings by the trial court. Bills of Exceptions Nos. 1, 1A, and 1B. On January 20, 1971, a bill of information was filed charging the defendant with a violation of R.S. 40:971(a)(1) as amended by Acts 1970, No. 457, § 1. A motion to quash, filed on September 16, 1971, was sustained on March 1, 1972, after the Louisiana Supreme Court's decision in State v. Welkner, 259 La. 815, 253 So.2d 192 (1971), which declared Act No. 457 of 1970 unconstitutional insofar as it purported to regulate amphetamines, barbiturates, and hallucinogens. The State, however, was allowed 20 days in which to file a new bill of information under a valid statute. On March 8, 1972, on motion by the State the bill of information was amended so as to charge a violation of R.S. 40:1033(1), as amended by Acts 1970, No. 421, § 1. A motion to quash this amended bill of information filed on April 10, 1972, was denied. Defendant's first complaint is based upon the allegation that it was improper to allow the State to amend the bill of information more than a year after the original bill was filed. Code of Criminal Procedure Article 576 provides that when an " * * indictment is dismissed by a court for any error, defect, irregularity or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer". The new prosecution was timely instituted under that article, and the trial, which was commenced within one year after the institution of the new prosecution, was timely under Article 578(3). It is true that under the latter article the State has only one year from the date of institution of prosecution in which to try an accused charged with a misdemeanor. However, the crime charged in the original bill of information was a felony, and the misdemeanor was not charged 58 until the amended bill of information was filed on March 8, 1972. The trial was had in April, 1972. Both the institution of the prosecution and the prosecution itself were timely. The defendant appears to complain next that the State's amendment to the information was not filed until after an "indefinite and a lengthy period of time". The first motion to quash was filed September 16, 1971 and was heard on February 29, 1972. The State filed the amended bill of information on March 8, 1972, well within the 20 days allowed by the trial judge. This procedure is similar to that outlined and recommended by this court in State v. Welkner, supra, and we find nothing objectionable in it. There is no merit in Bills of Exceptions Nos. 1, 1A, and 1B. Bills of Exceptions Nos. 2, 2A, and 3. These bills were reserved to the overruling of defendant's motion for continuance and motion for reconsideration of the motion for continuance. The basis for these motions was the defendant's alleged physical incapacity to stand trial. The testimony of the two doctors at the hearing on the motion for continuance reflects that both felt the defendant was at that time unable to stand trial. After the court had questioned them, however, and explained what such a trial would entail, both expressed their belief that the defendant could undergo trial if certain precautions were taken. The judge denied the motion for continuance, stating in per curiam that his ruling was based on the doctors' responses to his explanations and his own visual observation of the defendant's conduct and movements. It is well settled that the trial judge's ruling on a motion for continuance will not be disturbed unless there was an arbitrary or unreasonable abuse of the discretion vested in him. C.Cr.P. Art. 712; State v. Polk, 258 La. 738, 247 So.2d 853 (1971), and cases cited. In view of the circumstances existing at the time of the hearing and the evidence there adduced, we find that the trial judge did not abuse his discretion in denying the motion. We also find no abuse of discretion in the judge's overruling of the motion for reconsideration of the motion for continuance, filed a little over a month after the original motion. The testimony attached to these bills reveals that the defendant had no new evidence to offer and proposed to present the same testimony heard on the motion for continuance. Moreover, the doctor whose testimony defendant proposed to present had not seen him in the interim, and could have offered nothing new. Bills of Exceptions Nos. 2, 2A, and 3 are without merit. Bill of Exceptions No. 4. Bill of Exceptions No. 4 was reserved when the trial court overruled defendant's motion to quash and motion for dismissal based on the allegation that the Louisiana laws excluding women from jury service (La.Const. Art. VII, Sec. 41; C.Cr.P. Art. 402) denied him a fair trial. The majority of this court has held that the Louisiana constitutional provision and statute are constitutional under the holding of the United States Supreme Court in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). See State v. Daniels, 262 La. 475, 263 So.2d 859 (1972), and cases cited; see also the recent case of State v. Enloe, La., 276 So.2d 283, decided March 26, 1973. This is the holding of the majority. Under that view, Bill of Exceptions No. 4 is without merit.[] 59 Bills of Exceptions Nos. 6 and 12. During its opening statement the State told the jury that it would "also show you motive and intent on the part of John David Roberts by showing to you that there were other times that he made sales to". At this point objection was entered, and Bill of Exceptions No. 6 was reserved to its overruling. The complete opening statement is not made a part of the bill and is not in the record before us. Bill of Exceptions No. 12 was reserved apparently in an attempt to exclude evidence of other offenses offered for the purpose of showing intent and knowledge. The bill as presented, however, gives us nothing to review. We cannot determine from the testimony attached to the bill the nature of the testimony objected tothat is, whether it concerned a prior offense and whether it was relevant and admissible under the exceptions of R.S. 15:445 and 15:446. On the sparse record presented under Bills of Exceptions Nos. 6 and 12, we are unable to find merit in either. Bill of Exceptions No. 7. Counsel reserved this bill to the trial court's refusal to permit him to complete a remark which he had begun in his opening statement. The testimony attached to the bill does not make clear what counsel was attempting to say, but he states in brief that he was trying to explain "entrapment". The trial judge in per curiam tells us that defense counsel was arguing the law, trying to tell the jury how to weigh the evidence to be adduced, and not making an opening statement. In such circumstances counsel was exceeding the permissible limits of the opening statement, and the judge did not err in his ruling. Bills of Exceptions Nos. 8 and 10. These bills were reserved when the trial court sustained the State's objection to questions by defense counsel calculated to elicit the identity of certain informers. The general rule in Louisiana jurisprudence is that, in the absence of exceptional circumstances, disclosure of an informer's identity will not be ordered. See State v. Dotson, 260 La. 471, 256 So.2d 594 (1972). See also Roviaro v. United States, 353 U. S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). No exceptional circumstances were presented here which would require disclosure. The judge's rulings were correct. Bill of Exceptions No. 11. During the trial the State was permitted to amend the information by substituting the words "deliver or cause to be delivered" for the word "distribute". Counsel for defendant objected and reserved Bill No. 11. The per curiam to this bill explains that the amendment was allowed because it was "more in the nature a clarification and was not an amendment of substance". Under Code of Criminal Procedure Article 487, the court may at any time cause the indictment to be amended in respect to a formal defect, imperfection, omission, or uncertainty. Clearly the ruling of the trial judge was correct. We have examined the remaining bills of exceptions and find them to be without merit. The conviction and sentence are affirmed. DIXON, J., concurs in the result, but not in treatment given Bill No. 7. CALOGERO, J., concurs with reasons. CALOGERO, Justice (concurring): Although I am of the opinion that Louisiana Constitution Art. VII, Sec. 41 and La.C.Cr.P. Art. 402, are possibly in violation of the due process and equal protection provisions of the United States Constitution, I concur because a majority of the present Court has concluded otherwise. 60 See State v. Enloe, La., 276 So.2d 283, decided March 26, 1973, rehearing denied March 30, 1973; State v. Hill, La., 276 So.2d 286, decided March 26, 1973, rehearing denied March 30, 1973. NOTES [*] The writer is of the opinion, expressed several times in dissent, that Louisiana Constitution Article VII, Section 41, and Code of Criminal Procedure Article 402 deny due process and can deny equal protection, and are therefore unconstitutional. See dissents in State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Enloe, La., 276 So.2d 283, decided March 26, 1973.	{ "pile_set_name": "FreeLaw" }
678 F.3d 1210 (2012) UNITED STATES of America, Plaintiff-Appellee, v. Jyrone Jeremiah JOHNSON, Defendant-Appellant. No. 11-11369. United States Court of Appeals, Eleventh Circuit. May 1, 2012. Paul Alan Sprowls, Pamela C. Marsh, Tallahassee, FL, Robert G. Davies, Pensacola, FL, for Plaintiff-Appellee. William Rourk Clark, Jr., Chet Kaufman, Randolph Patterson Murrell, Federal Public Defenders, Federal Public Defender's Office, Tallahassee, FL, for Defendant-Appellant. Before EDMONDSON, KRAVITCH and FARRIS,[] Circuit Judges. FARRIS, Circuit Judge: In United States v. Lacey, we said that a defendant "is entitled to `a written statement by the factfinders as to the evidence relied on and reasons for revoking'" probation. 648 F.2d 441, 445 (5th Cir. Unit A June 1981) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). We neither ignore nor retreat from one word of Lacey. We will assume that Lacey's teaching extends to revocation of supervised release. Upon the record, Lacey's requirement was satisfied. Johnson was before the court because of a single incident of extreme domestic violence. The record reflects that a hearing was held to determine the facts of the incident. Testimony revealed that Johnson battered the victim over the course of several hours on a Friday night. Johnson stood on her hair so that she could not lift her head while he punched her, and he kicked her several times. When she coughed up blood, Johnson dragged her to a sink so she could clean herself up. The following Monday, she had a huge bruise on her left arm and bruises on her chest 1211 and neck, her mouth was puffy, and there was a footprint of a tennis shoe on her chest. On Wednesday, probation officers found bruises all over both of her arms, including eight bruises on her right arm and a huge bruise on her left arm, bruising on her collarbone between her breasts, and a bruise on her right thigh. She also told them that her collarbone might be broken. Johnson denied the alleged facts in spite of the evidence that the victim, who had sought permission to leave the halfway house and live with him, was battered so badly that she sought permission and did return to the halfway house. At the hearing, the sole question was whether the single incident of battery justified termination of supervised release. Johnson was present and represented by counsel. He neither objected nor did he or his counsel indicate by words or even body language that any language of the court's crystal clear holding was less than fully understood. The court stated after all evidence was concluded, "The Court has heard testimony yesterday and today and I am satisfied that [the] violation has been established beyond any doubt in this Court's mind." It further explained, "the Court has carefully considered the statements of all the parties and the information contained in the violation report. I've also had the opportunity to hear the evidence in this case and observe the witnesses on the stand, including your own testimony. The court finds that you have violated the terms and conditions of your supervised release." Given the simple issue before the district court, the evidence and the reasons for revoking supervised release were clear. Nothing more was required by the United States Constitution. We will not remand for the trial judge to restate what we (and we suggest all parties concerned) know and understand from the court's holding. Supervised release was revoked because of the single incident of domestic violence. AFFIRMED. NOTES [*] Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation.	{ "pile_set_name": "FreeLaw" }
992 So.2d 255 (2008) KEENE v. STATE. No. 1D08-3117. District Court of Appeal of Florida, First District. October 23, 2008. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 14-1229 _____________ A.S., a Minor, by Sallee Miller, Guardian; SALLEE MILLER, Individually, Appellants v. SMITHKLINE BEECHAM CORP, d/b/a GlaxoSmithKline _____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civ. Action No. 1-13-cv-02382) District Judge: Honorable Christopher C. Conner ________________________ Argued: September 10, 2014 _________________________ Before: SMITH, SHWARTZ, and ROTH, Circuit Judges (Filed: October 9, 2014) Howard J. Bashman, Esq. [ARGUED] Suite G-22 2300 Computer Avenue Willow Grove, PA 19090 Counsel for Appellants Lisa S. Blatt, Esq. [ARGUED] Sarah M. Harris, Esq. R. Stanton Jones, Esq. Arnold & Porter LLP 555 Twelfth Street, N.W. Washington, DC 20004 Andrew T. Bayman, Esq. Robert K. Woo, Jr., Esq. King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Jeffrey S. Bucholtz, Esq. King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, DC 20006 Joseph E. O’Neil, Esq. Lavin, O’Neil, Ricci, Cedrone & DiSipio 190 North Independence Mall West Suite 500 Philadelphia, PA 19106 Counsel for Appellee 2 ________________________ OPINION ________________________ SHWARTZ, Circuit Judge. A.S. and Sallee Miller (“Plaintiffs”) filed suit in Pennsylvania state court against GlaxoSmithKline LLC (“GSK”) claiming that its drug, Paxil, caused birth defects. GSK removed the case to the United States District Court for the Eastern District of Pennsylvania. The District Court1 remanded the case, finding that GSK was a citizen of Pennsylvania and therefore ineligible to remove the case. After remand, our Court decided Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013), in which we held that GSK was a citizen of Delaware. Within thirty days of our decision, GSK re-removed the case. This time, the District Court denied the motion to remand and certified its order for interlocutory review pursuant to 28 U.S.C. § 1292(b) to allow this Court to determine the propriety of re- removal. For the reasons set forth herein, we hold that the second removal was untimely, and we will reverse the order denying remand and direct that the District Court remand this case to state court. I On September 30, 2011, A.S., who suffers from a congenital birth defect, and his mother, Sallee Miller, who 1 Several district court judges entered orders in this case. We will refer to the judges collectively as the “District Court.” 3 ingested Paxil while pregnant, sued GSK in the Philadelphia County Court of Common Pleas. App. 82-84. The complaint alleged that all parties were citizens of Pennsylvania. App. 53, 84-85. GSK removed the case within thirty days of receipt of the complaint based upon diversity. On Plaintiffs’ motion, the case was consolidated with a number of other Paxil cases before a district court judge who had previously held that GSK was a citizen of Pennsylvania. Consistent with that holding, the District Court remanded this case along with the other consolidated cases to state court, holding that GSK was a citizen of Pennsylvania and could not remove a case from Pennsylvania state court to federal court. Patton ex rel. Daniels-Patton v. SmithKline Beecham Corp., CIV.A. 11- 5965, 2011 WL 6210724, at 5 (E.D. Pa. Dec. 14, 2011). The same judge also issued an opinion identical to Patton in Maldonado ex rel. Maldonado v. SmithKline Beecham Corp., 841 F. Supp. 2d 890 (E.D. Pa. 2011), which remanded twenty-one other Paxil cases to state court. This case returned to state court on January 4, 2012. A.S. v. SmithKline Beecham Corp., 2:11-cv-6641 (E.D. Pa. Jan. 4, 2012). On June 7, 2013, this Court issued Johnson, which held that GSK was a citizen of Delaware. Johnson, 724 F.3d at 360. In reaching that holding, this Court explicitly rejected the reasoning in Patton, Maldonado, and the District Court’s similar decision in Brewer v. SmithKline Beacham Corp., 774 F. Supp. 2d 720, 722 (E.D. Pa. 2011). Less than thirty days after the Johnson decision, GSK filed a second notice of removal in this case and in eight other cases with the same procedural posture. App. 29-48. The various plaintiffs filed motions to remand, arguing that the 4 removal was untimely. App. 319. These motions yielded inconsistent opinions. The first case holding that removal was proper was Guddeck v. SmithKline Beecham Corp., 957 F. Supp. 2d 622 (E.D. Pa. 2013). In Guddeck, the District Court noted that there was “no dispute that the parties are of diverse citizenship” after Johnson, that the amount-in- controversy requirement was satisfied, and that GSK was not an in-state defendant. Id. at 623. Guddeck also held that Johnson established that the case was “erroneously remanded” after the first removal, Johnson “provided a new and different ground for a second notice of removal,” and GSK’s second “removal notice [was] simply effectuating what was a timely and proper first removal.” Id. at 625-26. The District Court in this case adopted Guddeck’s reasoning and denied Plaintiffs’ motion to remand. App. 2-3. After the rulings in Guddeck and this case, more judges in the Eastern District weighed in. One denied remand in two of the nine cases presenting the same issue, relying on the reasoning in Guddeck. See M.N. v. SmithKline Beecham Corp., No. 2:13-cv-3695-RB, Dkt. 17 (E.D. Pa. Aug. 7, 2013); I.C. v. SmithKline Beecham Corp., No. 2:13-cv-3681- RB, Dkt. 22 (E.D. Pa. Aug. 9, 2013). Two judges disagreed and granted the motions to remand. See Cammarota ex rel. Hallock v. SmithKline Beecham Corp., CIV.A. 13-3677, 2013 WL 4787305 (E.D. Pa. Sept. 9, 2013), reconsideration denied, CIV.A. 13-3677, 2013 WL 6632523 (E.D. Pa. Dec. 16, 2013); Powell ex rel. Powell v. SmithKline Beecham Corp., CIV.A. 13-3693, 2013 WL 5377852 (E.D. Pa. Sept. 26, 2013). After the District Court denied remand, this case was transferred to the Middle District of Pennsylvania, where 5 Plaintiffs filed a motion to certify for interlocutory appeal the following question: whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case? App. 4. The District Court certified the question for appeal, which this Court accepted pursuant to 28 U.S.C. § 1292(b). II This Court has jurisdiction to address not only the certified question but “any issue fairly included within the certified order,” Johnson, 724 F.3d at 345 (internal citations and quotation marks omitted), and “may consider all grounds that might require reversal of the order from which the parties appeal.” Doe v. Am. Red Cross, 14 F.3d 196, 199 (3d Cir. 1993). Thus, this interlocutory appeal requires this Court to determine whether removal was proper and whether the order denying remand was correct. As this appeal raises only legal issues, our review is de novo. Ario v. Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of Account, 618 F.3d 277, 287 (3d Cir. 2010). III We will first review the removal provisions at issue. Under 28 U.S.C. § 1441(a), defendants may generally remove civil actions from state court to federal district court so long as the district court would have had subject-matter jurisdiction had the case been originally filed before it.2 2 Section 1441(a) provides: 6 When a case is removable under § 1441(a), and a plaintiff seeks remand, the plaintiff must identify a provision that prohibits removal. Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 695-96 (2003). “[R]emoval statutes ‘are to be strictly construed against removal and all doubts should be resolved in favor of remand.’” Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)). Plaintiffs contend that GSK’s most recent removal did not comply with the time limits for removal set forth in 28 U.S.C. § 1446(b).3 Section 1446(b) contains two paragraphs, the first of which provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a). 3 Because this case was commenced in 2011, all citations to § 1446 are to the version in effect during 2011. Section 1446(b) was amended by the Federal Courts Jurisdiction and Venue Clarification Act of 2011. The amended version applies to cases commenced after January 6, 2012. 7 otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b). The second paragraph is an exception to the first paragraph. Id. It provides: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of [diversity jurisdiction] more than 1 year after commencement of the action. Id. Plaintiffs also claim that the order denying remand violated 28 U.S.C. § 1447(d). That section provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). Though the statutory text is ostensibly broad in scope, the Supreme Court has not read it literally. It has held that § 1447(d) only bars review of orders that remand cases pursuant to § 1447(c), which addresses remand 8 based upon a lack of subject matter jurisdiction or a defect in the removal process. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (“[O]nly remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).” (quotation marks omitted)); see also Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 126 (3d Cir. 1998) (“Section 1447(c) provides for remand on the basis of either a procedural defect or lack of jurisdiction . . . .”). If remand was based on either of those grounds, then review of the order is barred under § 1447(d). Agostini v. Piper Aircraft Corp., 729 F.3d 350, 356 (3d Cir. 2013). For the reasons set forth herein, GSK’s re-removal is prohibited by § 1446(b) and remand is required. A GSK argues that § 1446(b)’s first paragraph does not bar its second removal because it does “not impose any time limits on successive removals.” GSK Br. 17. While the first paragraph does not explicitly mention successive removals, as GSK notes, it also does not explicitly mention first removals. Instead, it uses the general term “[t]he notice of removal,” meaning the notice of removal by which the case came before the district court, and it is clear that this notice of removal must be filed within thirty days of receipt of the initial pleading. 28 U.S.C. § 1446(b). Thus, although paragraph one does not expressly forbid successive removals,4 it does 4 See Brown v. Jevic, 575 F.3d 322, 328 (3d Cir. 2009) (“The removal statute does not categorically prohibit the filing of a second removal petition following remand.” (quotation marks and citations omitted)). 9 expressly forbid untimely removals. Here, the relevant notice of removal was untimely: it was filed over a year and a half after GSK was served with the initial pleading, namely the state court complaint. App. 31, 46-47. Because GSK’s second removal occurred more than thirty days after its receipt of the initial pleading, it did not comply with the first paragraph and GSK cannot remove on that basis. B The second paragraph does not relieve GSK of the first paragraph’s bar. It is an exception to the thirty-day time limit in the first paragraph. This paragraph sets a separate thirty- day time limit that applies when: (1) “the case stated by the initial pleading is not removable” and (2) the defendant receives “an amended pleading, motion, order or other paper” (3) from which “it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b). In diversity cases, the second paragraph has a fourth requirement: removal may not occur “more than 1 year after the commencement of the action.” Id. We will address the relevant requirements in turn. 1 Even assuming the case stated by the initial pleading was not removable, GSK also cannot rely on the second paragraph because there was no “amended pleading, motion, order or other paper” to trigger its thirty-day time limit. In general, the terms “amended pleading, motion, order or other paper” only “address[] developments within a case” and, therefore, court decisions in different cases do not count as an “order.” Dahl v. R. J. Reynolds Tobacco Co., 478 F.3d 965, 10 969 (8th Cir. 2007); see also Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263, 266-67 (5th Cir. 2001) (collecting cases). This is because: (1) “[i]f Congress had intended new developments in the law to trigger the recommencement of the thirty day time limit, it could have easily added language making it clear that § 1446(b) was not only addressing developments within a case” and (2) the fact that the documents are “listed in a logical sequence in the development of an individual case” makes it “an unsupported stretch to interpret ‘order’ to include a decision in a separate case with different parties.” Dahl, 478 F.3d at 969. Our Court has recognized a narrow exception to the general rule that orders issued in other cases do not qualify as a § 1446(b) “order.” In Doe v. American Red Cross, the Red Cross removed a case on the ground that its Congressional charter conferred federal question jurisdiction. 14 F.3d at 197-99. The district court disagreed and remanded the case. Id. at 199. Next, the Supreme Court decided S.G. v. American National Red Cross, 505 U.S. 247 (1992), which held that the Red Cross’s charter conferred federal question jurisdiction and gave the “specific and unequivocal direction that the Red Cross [was] ‘thereby authorized to removal from state to federal court of any state-law action it is defending.’” Doe, 14 F.3d at 201 (quoting S.G., 505 U.S. at 248)). The Red Cross re-removed the case within thirty days of S.G. and plaintiffs moved to remand, arguing, among other things, that S.G. was not an “order” under § 1446(b)’s second paragraph. The Doe Court disagreed, holding that S.G. was an “order,” but it included an important qualification. To qualify as an “order” under § 1446(b), a court decision in another case “must be sufficiently related to a pending case,” 11 meaning that: (1) “the order in the case came from a court superior in the same judicial hierarchy”; (2) “was directed at a particular defendant”; and (3) “expressly authorized that same defendant to remove an action against it in another case involving similar facts and legal issues.” Id. at 202-03. It was this last requirement that made S.G. “unique.” Id. According to Doe, S.G. was not “simply . . . an order emanating from an unrelated action.” Id. at 202. Rather, it was “an unequivocal order directed to a party to the pending litigation, explicitly authorizing it to remove any cases it is defending.” Id. Johnson is no S.G. Johnson rejected the reasoning that led to the remand of this case, as it held that GSK is a Delaware citizen, but it did not include the explicit authorization to remove other pending cases. Put simply, “Johnson . . . merely affirmed” an “[order denying] remand in the case before it.” Powell, 2013 WL 5377852, at 4. Accordingly, Johnson does not qualify as an “order” under Doe. In an attempt to extend Doe, GSK cites to a pair of non-binding cases for the proposition that this Court can ignore Doe’s third requirement. See Green, 274 F.3d 263; Young v. Chubb Grp. of Ins. Comp., 295 F. Supp. 2d 806 (N.D. Ohio 2003). These courts held that a decision in another case qualified as an “order” under § 1446(b) even though the decision did “not explicitly discuss removal,” much less specifically authorize removal in pending cases. Green, 274 F.3d at 268; see Young, 295 F. Supp. 2d at 808. In effect, GSK wants this Court to rely on these cases and hold that any subsequent decision involving the same 12 defendant impacting removability is an “order” under § 1446(b). Our binding precedent in Doe made clear, however, that its ruling was narrow and meant to apply in “unique circumstances,” namely compliance with a higher court’s holding that explicitly authorized a particular party to remove all of its pending cases to federal court. Doe, 14 F.3d at 202- 03. To treat all subsequent decisions involving the same defendant as part of a specific pending case would move the Doe rule from the “unique” to the typical. Moreover, if a party in a pending case could re-remove each time it received a favorable ruling in another case, re- removal could be a means to disrupt the proceedings in the pending case. Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass’n, 668 F.2d 962, 965 (7th Cir. 1982) (noting that one of the purposes of removal time limits is “prevent[ing] the delay and waste of resources involved in starting a case over in a second court after significant proceedings . . . may have taken place in the first court”). For these reasons, Doe is appropriately limited to the “unique circumstances” that arose in that case and we decline to expand the definition of “order” to include orders entered in any case involving the same defendant.5 Because Johnson did not explicitly direct removal of all cases involving GSK, but only affirmed the order denying 5 This conclusion is consistent with our precedent that removal statutes are to be strictly construed against removal. See, e.g., Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). 13 remand of the case, it is not an “order” that triggers a new thirty-day time period to remove Plaintiffs’ case. For this additional reason, the second paragraph of § 1446(b) does not provide a basis for removal. 2 GSK is also barred from removal based upon the second paragraph’s one-year limitation, which prohibits removal of diversity cases more than one year after the case commences. Here, the case commenced on September 30, 2011, and the notice of removal at issue was filed on June 26, 2013, more than a year and a half later. App. 18-19. This one-year time limit is procedural, not jurisdictional. Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 616 (3d Cir. 2003). For that reason, the time limit may be equitably tolled in certain circumstances. See Tedford v. Warner–Lambert Co., 327 F.3d 423, 428-29 (5th Cir. 2003) (recognizing equitable tolling exception to the one-year removal limitation); Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591 (3d Cir. 2005) (holding that a non-jurisdictional time limitation “may be modified by equitable concerns, such as tolling”). Equitable tolling is not warranted in this case. Cases involving equitable tolling of the one-year time limit often focus on intentional misconduct by the plaintiff. See e.g., Tedford, 327 F.3d at 428-29 (“Where a plaintiff has attempted to manipulate the statutory rules for determining federal removal jurisdiction, thereby preventing the defendant from exercising its rights, equity may require that the one- year limit in § 1446(b) be extended.”); Namey v. Malcolm, 14 534 F. Supp. 2d 494, 499 (M.D. Pa. 2008) (holding that equitable exception to one-year limitation did not apply because “Defendants have not met their burden of demonstrating sufficient culpability on the part of Plaintiffs”). At the time this case was commenced, equitable tolling also may have been proper for reasons other than party misconduct.6 See Vogel v. U.S. Office Prods. Co., 56 F. Supp. 2d 859, 865 (W.D. Mich. 1999) (equitably tolling first paragraph’s thirty-day time limit to allow re-removal where initial removal notice “simply disappeared,” even though plaintiffs had not “engaged in behavior which might estop them from pursuit of remand”), rev’d on other grounds, 258 F.3d 509 (6th Cir. 2001). While the contours of equitable tolling vary from context to context, this Court and the Supreme Court have held that equitable tolling may be appropriate if a litigant can demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (habeas case); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387, 1390 (3d Cir. 1994) (holding time limit to file an EEOC charge may be tolled “where the plaintiff in some extraordinary way has been prevented from asserting his or her rights” but noting that a “plaintiff who fails to exercise this reasonable diligence may lose the benefit of [equitable tolling]”). 6 The current version of § 1446 specifically states that a diversity case cannot be removed “more than 1 year after the commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C.§ 1446 (c)(1). 15 GSK argues that “extraordinary circumstances thwarted [its] initial removal.” GSK Br. 36. According to GSK, the “extraordinary circumstances” were: (1) that the remand proceedings were consolidated before a judge who had previously held that GSK was a citizen of Pennsylvania and therefore was likely to find that remand was proper; and (2) that the District Court erroneously remanded the case. Neither is an “extraordinary circumstance.” Section 137 of Title 28 provides that “[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.” This statute “vests the district court with broad discretion in assigning court business to individual judges.” United States v. Diaz, 189 F.3d 1239, 1243 (10th Cir. 1999). Simply put, under that statute, litigants “do[ ] not have a right to have [their] case heard by a particular judge,” have “no right to any particular procedure for the selection of the judge,” and “do[ ] not enjoy the right to have the judge selected by a random draw.” United States v. Pearson, 203 F.3d 1243, 1256 (10th Cir. 2000) (citations and alteration omitted) (collecting cases). Moreover, under Federal Rule of Civil Procedure 42(a), district courts have “broad power” to consolidate cases that share “common question[s] of law or fact.” Ellerman Lines, Ltd. v. Atl. & Gulf Stevedores, Inc., 339 F.2d 673, 675 (3d Cir. 1964); see also United States v. Schiff, 602 F.3d 152, 176 (3d Cir. 2010) (holding that a district court has “broad discretion in its rulings concerning case management”). Applying these principles here, it is clear that GSK had no right to have its motion decided by a particular judge nor was it prejudiced by the assignment of this case to a judge 16 who ruled against it. The decision to consolidate the nearly- identical cases before a judge familiar with the relevant issues was a proper exercise of the District Court’s broad discretion. There was nothing “extraordinary” about the decision to consolidate the cases. Furthermore, although the original remand decision was wrong, an erroneous remand is not an “extraordinary circumstance.” In fact, § 1447(d)’s prohibition on review of remand orders “contemplates that district courts may err in remanding cases.” Feidt, 153 F.3d at 128. A circumstance expressly “contemplate[d]” by the statutory scheme is not extraordinary, but is expected. Id. Moreover, as one district court has persuasively observed, subsequent legal developments “are precisely the sort of events that § 1446(b)’s one-year limitations period is designed to preclude” from disrupting a pending case. Williams v. Nat’l Heritage Realty Inc., 489 F. Supp. 2d 595, 597 (N.D. Miss. 2007). Otherwise, “removal issues would be subject to constant re-litigation” as the law develops. Id. For these reasons, GSK is not entitled to equitable tolling. C GSK’s final argument is that its second notice of removal should “relate back” to the first notice of removal. To assess this argument, we must first identify the source of a court’s authority to relate back in this context. GSK relies on Federal Rule of Civil Procedure 15(c). Rule 15, however, only applies to an “amendment to a pleading.” Fed. R. Civ. P. 15(c). Rule 7(a) lists the types of “pleadings” and a notice of 17 removal is not among them. See Fed. R. Civ. P. 7(a). Therefore, any relation back in this case must be justified—if at all—under a court’s equitable powers. See Scarborough v. Principi, 541 U.S. 401, 417-18 (2004) (noting that “relation back” is an equitable doctrine that can apply outside of Rule 15 context). GSK argues that this case “warrants the exercise of those equitable powers.” GSK Br. 30. The reasons GSK gives in favor of equitable relation back simply rehash its arguments for equitable tolling and for the same reasons, they fail. Neither the fact that a particular judge was assigned to the case nor the error in remanding the case provide a basis for equitable relief. An additional reason dictates that the second notice of removal does not relate back to the first notice of removal. By the time GSK filed its second notice of removal, a final order remanding the action had been filed and the case was sent to the state court. As a result, there was nothing pending in the federal court to which the second notice could relate. This distinguishes the present case with those that GSK cites as supporting relation back, such as USX Corp. v. Adriatic Insurance Co., 345 F.3d 190 (3d Cir. 2003). In USX, the defendant timely removed to federal court and the plaintiff filed a motion to remand, which the district court denied. Id. at 197. While the case was pending in federal court, the Supreme Court issued a decision that undercut the rationale for jurisdiction in the defendant’s notice of removal and the plaintiff filed another motion to remand. Id. at 199-200. The defendant offered a new explanation for jurisdiction, and the district court denied remand based on the new explanation. Id. On appeal, the plaintiff argued that the defendant’s new 18 argument was waived because it was not included in the notice of removal. Id. at 200. This Court held that the argument was not waived because the district court did not abuse its discretion by deeming that the new argument “amended” the notice of removal. Id. at 204-05. This was proper, the USX Court reasoned, because the new argument “did not add new jurisdictional facts and did not rely on a basis of jurisdiction different from that originally alleged.” Id. at 205. Instead, it only “amend[ed] the allegation [in the notice of removal] in light of an intervening clarification in the law.” Id. For support, this Court cited cases holding that amendments to removal notices may be permitted so long as the amendments “merely clarify (or correct technical deficiencies in) the allegations already contained in the original notice.” Id. at 205 n.12. The Court distinguished USX’s situation from cases where an amendment “creat[es] an entirely new basis for jurisdiction.” Id. at 205 n.11. There is a critical difference between this case and USX. In this case, GSK’s first notice of removal was not pending but was disposed of by a final order remanding the case to state court. See In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 449 (3d Cir. 2000) (noting that remand orders are final orders). That order divested the district court of jurisdiction over the case. Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir. 1992). There was therefore nothing for the second notice of removal to “relate back” to. In USX, by contrast, the notice of removal was still pending and therefore there was a notice of removal to which to relate back. Recognizing this obvious distinction, GSK argues that the initial notice does not need to be pending, but rather that only the underlying case must be pending. For this 19 proposition, GSK cites to cases where courts allowed an amended complaint to relate back to a timely, yet dismissed complaint. These cases allowed relation back only when the complaint was dismissed without prejudice—i.e., by a non- final order.7 See Brennan v. Kulick, 407 F.3d 603, 607 (3d Cir. 2005) (permitting amendment to dismissed complaint when dismissal was without prejudice); see also Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1025 (7th Cir. 2013) (permitting amended complaint to relate back to dismissed complaint when dismissal was without prejudice). As a result, each dismissal was “conditional” and the district court “retained jurisdiction over the case” even after dismissal. Brennan, 407 F.3d at 607. Here, the District Court’s first remand order was final, not “conditional,” and ended the federal case. Moreover, once an order remanding a case is mailed to the state court, the district court loses jurisdiction and thus lacks the authority to allow the amendment of the notice of removal. In Hunt, a district court remanded a case to state court, thereby losing jurisdiction over the case. 961 F.2d at 7 The one case GSK cites that involved a dismissal with prejudice does not warrant a different view. In Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402 (7th Cir. 1989), aff’d on other grounds, 494 U.S. 820 (1990), the appellate court allowed relation back to a complaint that was dismissed in state court with prejudice. Id. at 410 n.11. The appellate court treated the order as being without prejudice and allowed relation back, concluding that the state order “utterly makes no sense” because (1) it should have been a dismissal without prejudice and (2) another state court order implied that the plaintiff could amend her complaint. Id. at 410 & n.11. 20 1081. After remand, the defendant filed a motion to amend its notice of removal, but this Court held that the motion to amend was “too late” since the district court no longer had jurisdiction over the case. Id. at 1082. The Hunt Court noted that this result furthered “the policy underlying [§ 1447(d)],” which is “to prevent delay in the trial of remanded cases by avoiding protracted litigation of jurisdictional issues of exactly the type involved here.” Id. The result should be no different here, where GSK essentially seeks to amend its first notice of removal with its second notice of removal. Allowing a second notice of removal to do what a motion could not would be an end run around both the holding in Hunt and the policy underlying § 1447(d). For all of these reasons, GSK’s second notice of removal cannot relate back to the first notice of removal.8 8 Plaintiffs also contend that § 1447(d) is an alternative ground for reversing the District Court’s denial of remand. Specifically, Plaintiffs argue that a denial of the motion to remand after the District Court had remanded the case was effectively a “review” of a remand order not permitted under § 1447(d). Doe, however, provides that re-removals on “different” grounds are not barred by § 1447(d). Doe, 14 F.3d at 200. Under Doe, “different” grounds include a citation to “a new and definitive source” of authority. Id. Johnson was such “a new and definitive source” of authority. While there are distinctions between Doe’s S.G. and this case’s Johnson, those distinctions are only relevant to §1446(b)’s “order” inquiry, which is distinct from § 1447(d). Put differently, Johnson’s status as a non-“order” does not make it any less of “a new and definitive source” of authority. Accordingly, the second notice of removal, with its citation to 21 IV Because GSK’s second removal was untimely under § 1446(b), we will reverse and remand with instructions that the District Court remand this case to the Philadelphia County Court of Common Pleas. Johnson, set forth a “different” ground as defined in Doe. Therefore, the District Court’s order denying remand after it had entered an order granting remand did not run afoul of §1447(d). 22	{ "pile_set_name": "FreeLaw" }
Opinion filed January 6, 2011 In The Eleventh Court of Appeals __________ No. 11-09-00036-CV __________ ROBERT A. LANSINK, Appellant V. LISA K. LANSINK, Appellee On Appeal from the 324th District Court Tarrant County, Texas Trial Court Cause No. 324-356592-03 M E M O R A N D U M O P I N I O N Robert A. Lansink appeals the trial court’s amended final order of November 12, 2008, in which Robert was declared a vexatious litigant toward Lisa K. Lansink, their children, and Lisa’s attorney. In the order, the trial court ordered Robert to pay $11,700 to Lisa’s attorney, struck part of Robert’s earlier affidavit of relinquishment, enjoined the parties from communicating with the court ex parte, and ordered Robert to deposit into the registry of the trial court attorney’s fees of $25,000 if he filed an appeal or a postjudgment motion. We affirm. Robert presents five issues on appeal. In the first issue, Robert argues that the trial court erred in finding that his suit had been dismissed by the 48th District Court. In the second and third issues, Robert challenges the trial court’s authority to strike portions of an affidavit that had been filed in a prior suit. In his fourth issue, Robert complains of the trial court’s effective denial of his motion for new trial. Finally, Robert urges that the trial court erred in declaring him to be a vexatious litigant. With respect to his first issue, the record does not support Robert’s assertion that the trial court in this case, the 324th court, found that the 48th court had “dismissed” Robert’s claims. To the contrary, the record shows that Robert’s claims were disposed of by the 324th court. Robert filed the petition at issue in this appeal in the 48th court. The 48th court transferred the case upon finding that Robert’s claims stemmed from an action for divorce that had already been disposed of by the 324th court. Lisa filed an answer in which she requested attorney’s fees and also asserted a plea in bar, a motion to consider the petition as a bill of review and to require a security deposit, and a motion to declare Robert a vexatious litigant. The 324th court disposed of Robert’s claims in an order signed April 9, 2008, which provided that the petition originally filed by Robert in the 48th court “is barred,” that the petition “should have been filed as a Bill of Review under the original cause number,” and that Robert failed to deposit $25,000 into the court’s registry within three days of the filing of his petition. Robert’s first issue is overruled. In the next two issues, Robert complains of the trial court’s striking portions of an affidavit that Robert had filed in support of his voluntary relinquishment of parental rights. The judgment reflects that the trial court “on its own motion” struck portions of an affidavit of relinquishment that Robert had filed in the clerk’s office on December 17, 2007. The trial court noted in open court that the affidavit of relinquishment filed by Robert in the clerk’s office was “not the one that was presented to the Court” and that the affidavit he filed contained “allegations of evidentiary fact that should not have been included.” [1] A trial court has exclusive jurisdiction of proceedings to determine the correctness of or to change the face of its own records. Boggess v. Harris, 39 S.W. 565 (Tex. 1897). A trial court is authorized to change the contents of its record. Gerneth v. Galbraith-Foxworth Lumber Co., 300 S.W. 17, 20 (Tex. 1927); Goode v. Shoukfeh, 915 S.W.2d 666, 671 n.6 (Tex. App.—Amarillo 1996), aff’d, 943 S.W.2d 441 (Tex. 1997). Robert does not take issue with the trial court’s finding that the affidavit Robert filed in the clerk’s office was not the one that he had presented to the trial court at the hearing regarding termination of parental rights. Nor does the record in this appeal controvert that finding. A final order terminating Robert’s parental rights had been entered on December 17, 2007. The propriety of that order was not at issue in the underlying proceeding and is not at issue in this appeal. Consequently, any error in striking portions of the affidavit from the clerk’s record would not be reversible error because it did not cause the rendition of an improper judgment. See Tex. R. App. P. 44.1. The second and third issues are overruled. In his fourth issue, Robert contends that the trial court erred in effectively denying his motion for new trial with respect to the trial court’s order of April 9, 2008. Prior to entering that order, the trial court held a hearing in March. Robert was not present at the hearing and had not been given timely notice of a trial setting. See Tex. R. Civ. P. 245. A trial court may, however, hold a pretrial hearing upon shorter notice than the notice required by Rule 245 for a trial setting. See Tex. R. Civ. P. 21, 166. The record reflects that Lisa’s counsel certified that he complied with the rules in serving notice of the hearing. The trial court ruled that the petition filed by Robert was actually a bill of review; that Robert was required, pursuant to the final order of December 17, 2007, to deposit $25,000 into the court’s registry within three days of filing a bill of review; and that Robert violated the December 17 order by failing to deposit $25,000 into the court’s registry or post a $25,000 bond. The trial court also declared Robert to be a vexatious litigant and ordered him to pay $4,800 in attorney’s fees to Lisa’s attorney. The trial court subsequently granted in part a motion for new trial filed by Robert. The court explicitly granted the new trial only on the issues relating to attorney’s fees and to Robert being declared a vexatious litigant. Robert asserts that a new trial should have been granted as to the entire April order. We disagree. A trial court is authorized to grant a motion for new trial in part when the matter upon which the new trial is granted may be separated without unfairness to the parties. Tex. R. Civ. P. 320. The claims asserted by Robert were separable from those upon which the trial court granted a new trial. Furthermore, a judgment may be rendered by way of a pretrial hearing in limited circumstances where the only issues to decide are legal issues. Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 323 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354-55 (Tex. App.—San Antonio 1999, pet. denied). The trial court did not err in using the pretrial hearing to decide legal issues involving no fact disputes. After Robert failed to deposit funds into the registry of the court, the trial court held a hearing and determined that Robert had failed to comply with the previous order of the trial court. Based upon Robert’s noncompliance, the trial court was authorized to dismiss Robert’s petition. See Sweed v. Nye, 319 S.W.3d 791 (Tex. App.—El Paso 2010, pet. denied). Robert has not shown that the trial court abused its discretion in refusing to grant a new trial as to the claims asserted in his petition. The fourth issue is overruled. In his final issue, Robert argues that the trial court erred in declaring him to be a vexatious litigant. We disagree. A plaintiff may be declared a vexatious litigant pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 11.054(2) (Vernon 2002) if the defendant shows that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that: [A]fter a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona, either: (A) the validity of the determination against the same defendant as to whom the litigation was finally determined; or (B) the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined. Section 11.054(2). On appeal, we review a determination that a person is a vexatious litigant under an abuse of discretion standard. Pandozy v. Beaty, 254 S.W.3d 613, 619 (Tex. App.—Texarkana 2008, no pet.). The record in this case shows that the trial court had entered a final decree of divorce in March 2005 disposing of the parties’ marital property and that among the numerous filings by Robert against Lisa are two pro se petitions that support the trial court’s vexatious finding. These petitions were effectively bills of review attacking the earlier disposition of the marital property due to Lisa’s alleged fraud and negligence. The more recent of these two petitions was filed in the 48th court on December 20, 2007, and was subsequently transferred to the 324th court. In February 2007, Robert had filed a similar petition alleging the same causes of action against Lisa in the 141st court. That pro se petition was consolidated into the case in the 324th court, where it was subsequently struck in a December 3, 2007 order of the trial court upon the granting of a motion for sanctions against Robert. The order striking Robert’s February petition constituted a final determination of the causes of action pleaded therein against Lisa. See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991) (sanctions such as striking pleadings may have the effect of adjudicating a dispute). Robert’s subsequent refiling of these claims in the December 20 petition was an attempt to thwart the order striking his February petition and constituted an attempt to relitigate the same claims against Lisa that had already been adjudicated. Because the February petition had been struck, there was no reasonable probability that Robert would prevail in a subsequent petition alleging the same claims against the same defendant. We hold that the trial court did not abuse its discretion in determining that Robert is a vexatious litigant. The fifth issue is overruled. The judgment of the trial court is affirmed. JIM R. WRIGHT CHIEF JUSTICE January 6, 2011 Panel consists of: Wright, C.J., McCall, J., and Strange, J. [1]We note that the trial court purported to act pursuant to Tex. Fam. Code Ann. § 6.402(c) (Vernon 2006), which requires a trial court to “strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court’s own motion” in a suit for dissolution of marriage. Robert correctly asserts that Section 6.402(c) applies only to suits for dissolution of marriage and that the Lansinks had been divorced for well over two years when he filed the affidavit of relinquishment. The trial court’s misguided reliance upon Section 6.402(c), however, does not affect the propriety of its ruling.	{ "pile_set_name": "FreeLaw" }
917 So.2d 1010 (2006) Reginald BUCHANAN, Appellant, v. STATE of Florida, Appellee. No. 4D04-4404. District Court of Appeal of Florida, Fourth District. January 4, 2006. Helene Hvizd Morris, Special Assistant Public Defender, West Palm Beach, for appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Affirmed. The issue was not preserved. See Joiner v. State, 618 So.2d 174 (Fla. 1993). STEVENSON, C.J., WARNER and HAZOURI, JJ., concur.	{ "pile_set_name": "FreeLaw" }
NO. 07-10-00438-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B NOVEMBER 3, 2010 LUIS ANGEL OLVERA, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY; NO. CR-10D-041; HONORABLE ROLAND D. SAUL, JUDGE Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ABATE AND REMAND Appearing pro se, appellant Luis Olvera appeals his conviction and sentence for felony driving while intoxicated. In his notice of appeal, appellant states he received appointed counsel in the trial court because of indigence. The limited materials before us supply no indication why appellant appears pro se on appeal. We, therefore, abate the appeal and remand the case to the trial court for further proceedings. On remand, the trial court is directed to immediately notice and conduct a hearing to determine: 1. whether appellant still wishes to pursue his appeal; 2. whether appellant is indigent; and 3. if appellant is indigent, whether he is entitled to appointment of counsel and a free appellate record. We further direct the trial court to issue findings of fact and conclusions of law addressing the subjects numerically itemized above. If the trial court finds appellant is indigent and wishes to pursue his appeal, it shall appoint counsel to assist appellant in the prosecution of the appeal. The name, address, telephone number, telefax number, and state bar number of the counsel appointed to represent appellant on appeal must also be included in the trial court’s findings of fact and conclusions of law. If the trial court finds appellant is indigent and wishes to pursue his appeal, it shall order the clerk and court reporter to prepare and provide appellant a record of the trial court proceedings without charge to appellant. Furthermore, the trial court shall cause to be developed 1) a supplemental clerk’s record containing the findings of fact and conclusions of law and all orders of the trial court issued as a result of its hearing on this matter and 2) a reporter’s record transcribing the evidence and argument presented at the hearing on this matter. Additionally, the trial court shall cause the supplemental record to be filed with the clerk of this court on or before December 3, 2010. If additional time is required to perform these tasks, the trial court may so request by December 3, 2010. If the trial court finds appellant wishes to pursue his appeal and is entitled to a free record on appeal, the reporter’s record and clerk’s record shall be filed with the clerk of this court within thirty days of the date the supplemental record directed by this order is filed. Should the trial court find appellant wishes to pursue his appeal but is not entitled to a free record, the reporter’s record and clerk’s record shall be filed with the clerk of this court within thirty days of the date the supplemental record directed by this order is filed, subject, however, to appellant’s compliance with the requirements of Rule of Appellate Procedure 35.3. Tex. R. App. P. 35.3. Additional deadlines shall fall in accordance with the appellate rules. See Tex. R. App. P. 38.6. It is so ordered. Per Curiam Do not publish. change made in 2005 was the substitution of "original petition" for "claim." Because Cartrite's cause of action accrued in September 2006, we will apply chapter 74 of the Texas Civil Practice and Remedies Code as it currently exists, including the 2005 amendment.[10] Standard of Review A trial court's decision on a motion to dismiss under section 74.351 is reviewed for abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Questions of law are subject to a de novo review. See generally Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989) (holding that "matters of statutory construction are questions of law for the court to decide rather than issues of fact"). However, once we determine the proper construction of section 74.351(a), we must then review whether the trial court abused its discretion in the manner in which it applied the statute to the facts of the case. Palladian Bldg. Co. v. Nortex Foundation Designs, Inc., 165 S.W.3d 430, 436 (Tex.App.--Fort Worth 2005, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). Statutory Construction of Chapter 74 Any legal term or word of art used in chapter 74, not otherwise defined in the chapter, shall have such meaning as is consistent with the common law. § 74.001(b). This provision essentially restates the rule of statutory construction that terms in a statute are to be given their ordinary meaning. See Tex. Gov't Code Ann. § 312.002(a) (Vernon 2005). See also Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex.App.--Eastland 2005, pet. denied). The primary goal of statutory construction is to determine and give effect to the Legislature's intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). We look first to the statute's language to determine that intent, as we consider it "a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent." Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Furthermore, we presume the Legislature intended a just and reasonable result by enacting the statute. Tex. Gov't Code Ann. § 311.021(3) (Vernon 2005). The general rule for statutory interpretation applies unless enforcing the plain language of the statute as written would produce absurd results. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). The purpose behind the adoption of section 74.351(a) was, among other things, to "remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard--and--fast deadlines for the serving of expert reports." Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 797 (Tex.App.--Houston [1st Dist.] 2007, no pet.). The 2003 codification created a statute of limitations type deadline before which expert reports must be served. See Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007). If no report was served before the 120 day deadline, the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions. Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009). This seemingly harsh result comports with the Legislature's effort to "reduce excessive frequency . . . of health care liability claims . . . ." Ogletree, 262 S.W.3d at 320 (citing Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)[(1)], 2003 Tex. Gen. Laws 847, 884)). In 2005, section 74.351(a) was amended to require expert reports to be filed not later than 120 days after the original petition is filed. The purpose of the amendment was to "clarify" the timing of when an expert report is due. See Methodist Charlton Medical Center v. Steele, 274 S.W.3d 47, 50 (Tex.App.--Dallas 2008, pet. denied). The Legislature rationalized the change as follows: [s]ince the passage of House Bill 4 in the 78th Session, there has been some confusion regarding the timing of when an expert report is due on a medical malpractice case. Some have argued that the report is due 120 days from the date of the statutory notice letter, instead of 120 days from the date of the filing of the original petition. It was the intent of HB 4 that the report be triggered by the filing of the lawsuit. See Padre Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78, 84-85 (Tex.App.--Corpus Christi 2010, no pet. h.) (citing Osonma v. Smith, No. 04-08-00841-CV, 2009 Tex.App. LEXIS 4959, at 4 (Tex.App.--San Antonio July 1, 2009, pet. denied)). See also Stroud v. Grubb, No. 01-09-00945-CV, 2010 Tex.App. LEXIS 3675, at 7 (Tex.App.--Houston [1st Dist.] May 13, 2010, pet. filed June 28, 2010) (citing House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 2645, 79th Leg. R.S. (2005)). Analysis I. Pre-suit Production of an Expert Report By issue one, Daybreak maintains the trial court erred in denying its motion to dismiss because pre-suit production of an expert report does not comply with the requirements of section 74.351(a). Daybreak relies on Poland v. Ott, 278 S.W.3d 39 (Tex.App.--Houston [1st Dist.] 2008, pet. denied)(subsequent opinion at Poland v. Ott, No. 01-07-00199-CV, 2009 Tex.App. LEXIS 3766 (Tex.App.--Houston [1st Dist.] Jan. 22, 2009, pet. denied),[11] St. Lukes Episcopal Hosp. v. Poland, 288 S.W.3d 38 (Tex.App.--Houston [1st Dist.] 2009, pet. denied), and Offenbach v. Stockton, 285 S.W.3d 517 (Tex.App.--Dallas 2009, pet. granted Feb. 12, 2010), in support of its position that providing a pre-suit expert report does not satisfy the requirements of chapter 74 of the Code. See generally St. Lukes Episcopal Hosp, 288 S.W.3d at 44 (applying the pre-2005 version of section 74.351(a) and holding that the 120 day period in which to file an expert report was triggered by the filing of a health care liability claim); Offenbach, 285 S.W.3d at 521-22 (applying the pre-2005 version of section 74.351(a) and holding that pre-suit service of an expert report on a potential defendant's insurance carrier did not satisfy the statute). Cartrite submits that section 74.351 is unambiguous, setting a deadline and not a window, by allowing service any time not later than the 120th day after the date the claim was filed. Cartrite relies heavily on Justice Jennings's dissents in Ott, 278 S.W.3d at 43, and St. Lukes Episcopal Hosp., 288 S.W.3d at 54, in support of her arguments. These cases, all involving pre-suit service of expert reports, are, however, distinguishable from the case at bar. Each of these cases involve application of section 74.351(a) as it existed after the 2003 codification of statutes involving health care liability claims, but before the 2005 amendment. The 2005 amendment, which provides that an expert report be served not later than 120 days after the original petition is filed, was intended to clarify that the deadline for filing expert reports is now triggered by the filing of an original petition. Steele, 274 S.W.3d at 50. Therefore, these cases are legally and factually distinguishable from the case at hand because Cartrite's claims fall under the current version of section 74.351(a). Considering that section 74.351(a) was amended in 2005, Cartrite's cause of action accrued after that amendment, and our ultimate disposition of Daybreak's second issue, we deem it unnecessary to address the parties' arguments relating to pre-suit service. See Tex. R. App. P. 47.1. Accordingly, we express no opinion as to whether or not section 74.351(a) creates a window within which an expert report must be served, or whether it establishes a deadline before which that report must be served. Issue one is pretermitted. II. The 120 Day Deadline By issue two, Daybreak contends that Cartrite is incorrect in arguing that the amended petition naming Daybreak Community Services, Inc. as a defendant provided Cartrite with a new 120 day deadline. We disagree with Daybreak's contention. When considering the provisions of section 74.351(a) requiring that an expert report be served not later than 120 days after the filing date of the original petition, an interpretation of that provision as applying exclusively to the first pleading filed by a claimant, regardless of whom that pleading alleges a health care liability claim against, "runs into a number of interpretational and logical problems." See Hayes v. Carroll, No. 03-08-00217-CV, 2010 Tex.App. LEXIS 3637, at 8-9 (Tex.App.--Austin May 14, 2010, no pet. h.). Referencing the House and Senate Bill analyses,[12] the Austin Court of Appeals first noted that the primary purpose of the amendment was to clarify that the 120 day deadline did not run from the date of the statutory notice letter. Id. at 10. The court then noted that the intent of the statute creating the 120 day deadline was to have that deadline triggered by the filing of the lawsuit." (Emphasis added). The filing of the lawsuit was the demarcation event triggering the 120 day deadline. Id. "If a defendant has not been added to a case, there has yet to be a lawsuit filed against that defendant." Id. at 10-11. Regardless of how an amended pleading is styled, it is the original or first petition bringing a lawsuit as to that defendant that triggers the 120 day deadline for filing an expert report for purposes of a health care liability claim. Id. at 11. A construction of section 74.351(a) that interprets the term "original petition" as being the first document filed in a case that brings a claim against a particular defendant is consistent with the available legislative history on the issue. Id. Interpreting the term "original petition" as referring only to the first petition filed in a cause number regardless of who is named as a defendant presents a quandary. If the 120 day deadline begins from the first petition filed, a plaintiff could never add another physician or health care provider as a defendant beyond 120 days because the plaintiff would never be able to timely serve an expert report as to that defendant. Id. at 11-12. Such an interpretation would produce an absurd result which runs afoul of statutory interpretation. See Entergy Gulf States, Inc., 282 S.W.3d at 437. It would also create the potential for unreasonable or unjust results. Hayes, 2010 Tex.App. LEXIS 3637, at 12. The court in Hayes added that it is not the title of the pleading that is dispositive; rather, it is the substance of the petition with respect to the health care providers who are named as defendants that is dispositive. Id. at 13-14. The Corpus Christi Court of Appeals, Houston First Court of Appeals, and San Antonio Court of Appeals have all addressed this issue and have also concluded that the first-filed petition naming a particular defendant physician or health care provider as a party to the lawsuit triggers the 120 day deadline for filing an expert report as to that party. See Padre Behavioral Health Sys., LLC, 310 S.W.3d at 85; Stroud, 2010 Tex.App. LEXIS 3675, at 12; Osonma, 2009 Tex.App. LEXIS 4959, at 4. The Corpus Christi Court of Appeals in Padre Behavioral Health Sys., LLC, drew from the reasoning in Osonma. 310 S.W.3d at 84-85. In Osonma, certain defendants in a health care liability case were not joined as parties until plaintiff filed her third amended petition, well after 120 days from the filing of the original petition. Defendants filed motions to dismiss based in part on untimely service of expert reports. The trial court denied the motions to dismiss. In affirming the trial court's decision, the San Antonio Court of Appeals examined the legislative history and concluded that the Legislature intended the substitution of "original petition" for "claim" in 2005 to mean that the deadline for serving an expert report be triggered by the filing of the lawsuit against the defendant entitled to the statutory notice. The court also recognized that limiting "original petition" to the first-filed petition in the cause would lead to an absurd result. Osonma, 2009 Tex.App. LEXIS 4959, at 4-5. In Stroud, the Houston First Court of Appeals held that the 120 day deadline was triggered when the claimant first asserts a health care liability claim against a particular defendant in a petition. 2010 Tex.App. LEXIS 3675, at *13. The Dallas Court of Appeals, in Steele, 274 S.W.3d at 50, and the Houston Fourteenth Court of Appeals in Maxwell v. Seifert, 237 S.W.3d 423, 426 (Tex.App.--Houston [14th Dist.] 2008, pet. denied), have strictly interpreted the phrase "not later than the 120th day after the date the 'original petition' was filed" as relating to the first petition filed. However, Steele and Maxwell are distinguishable because they both involve the addition of new claims and service of expert reports regarding those claims in amended petitions against pre-existing defendants rather than the service of an expert report on a newly added party. In the case before us, the original petition was filed against Daybreak Group, Ltd. Co. on April 15, 2008. Daybreak argues that service of Cartrite's expert report was therefore due no later than August 13, 2008, 120 days after filing the original petition. However, as Daybreak and Daybreak Group have both argued, they are separate and distinguishable entities, with Daybreak Group merely providing Daybreak with "financial, accounting, payroll and administrative support services." As such, Daybreak Group is not a health care provider. When Cartrite filed her first amended petition on July 6, 2009, alleging health care liability claims for the first time against Daybreak Community Services, Inc., a health care provider, she was entitled to have 120 days from the filing of that petition in which to serve Nurse Foster's expert report and curriculum vitae. Three days later, on July 9, 2009, Cartrite properly served Daybreak Community Services, Inc. with a copy of Nurse Foster's expert report and curriculum vitae.[13] Because Daybreak Community Services, Inc. was served within 120 days of the first-filed petition naming it as a defendant, we conclude the trial court did not abuse its discretion in denying Daybreak's motion to dismiss based on an untimely expert report. In reaching our conclusion, we follow the rationale and logic of the decisions from our sister courts in Austin, Corpus Christi, the First District of Houston, and San Antonio. Issue two is overruled. We note that Daybreak further contends that Cartrite's position that Daybreak Community Services, Inc. was not sued until her first amended petition was filed on July 6, 2009, time bars her claim. See § 74.251(a). At this juncture, that argument is premature and not before this Court. Daybreak has never sought summary judgment based upon a statute of limitations defense and the merits of that claim are still subject to full adjudication before the trial court. Conclusion Accordingly, the trial court's order denying the Motion to Dismiss filed by Daybreak Community Services, Inc. is affirmed. Patrick A. Pirtle Justice [1]The facility operated by Daybreak Community Services, Inc. is a certified home and community-based services waiver program for persons with mental retardation and, as such, Daybreak Community Services, Inc. is a "health care provider" for purposes of chapter 74 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. and Rem. Code Ann. §§ 74.001(a)(11)(I) and (a)(12)(A)(vii) (Vernon 2005). [2]Unless otherwise designated, all references herein to "§" or "section" are to the Texas Civil Practice and Remedies Code Annotated (Vernon 2005 and Supp. 2009). [3]The motion for summary judgment was withdrawn a week later. [4]The registered agent and address for both Daybreak Group, Ltd. Co. and Daybreak Community Services, Inc. are the same. [5]See Act of June 2, 2004, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. [6]See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986. [7]See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01-.09, 2003 Tex. Gen. Laws 847, 864-84. [8]See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875. [9]See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590. [10]Id. at § 2 (providing "[t]his Act applies only to a cause of action that accrues on or after the effective date of this Act.") [11]The 1st Court of Appeals originally issued an opinion in Cause No. 01-07-00199-CV on January 31, 2008. That opinion was withdrawn and a second opinion was issued in its stead on December 19, 2008. That second opinion appears at 278 S.W.3d 39. A third opinion was issued on January 22, 2009, again purporting to withdraw the opinion of January 31, 2008 and issuing a new opinion in its stead. The January 22, 2009 opinion appears at Poland v. Ott, No. 01-07-00199-CV, 2009 Tex. App. LEXIS 3766 (Tex.App.--Houston [1st Dist.] Jan. 22, 2009, pet. denied). [12]House Comm. on Civil Practices, Tex. H.B. 2645, 78th Leg., R.S. (2005) and Sen. Comm. on State Affairs, Tex. H.B. 2645, 78th Leg., R.S. (2005). [13]We express no opinion as to the sufficiency of the expert report.	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 03 2008 No. 06-14609 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 06-80050-CR-DTKH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CELSO MAYA-LINARES, a.k.a. Celso Martinez, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (January 3, 2008) Before ANDERSON, BIRCH and PRYOR, Circuit Judges. PER CURIAM: Celso Maya-Linares appeals his 36-month sentence for illegal reentry into the United States after deportation, 8 U.S.C. § 1326(a) and (b)(2). On appeal, Maya-Linares argues that, in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny, his sentence, enhanced from a maximum of 2 years in § 1326(a) to 20 years in § 1326(b)(2), is unconstitutional because the government failed to allege in the indictment or prove to a jury beyond a reasonable doubt the prior conviction upon which the district court based the enhancement. Maya-Linares further argues that the district court erred when it made findings of fact with regard to his prior conviction. First, Maya-Linares argues that any sentence enhancement that extends beyond the two-year statutory maximum in § 1326(a) based upon prior convictions not alleged in the indictment nor proven to a jury beyond a reasonable doubt, violates his rights under the Fifth and Sixth Amendments to the Constitution. Because Maya-Linares raised his objection to the enhancement of his sentence before the district court, we review the sentence de novo, but will only reverse for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). In Almendarez-Torres, the Supreme Court held that recidivism was not an element of the offense of illegal re-entry into the United States. 523 U.S. at 247, 118 S.Ct. at 1233. Accordingly, under Almendarez-Torres, prior convictions can 2 be considered and used to enhance a defendant’s sentence without being alleged in the indictment or proved beyond a reasonable doubt. 523 U.S. at 244-46, 118 S.Ct. at 1231-32. Subsequent decisions, namely, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), have not disturbed the holding of Almendarez-Torres. See United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). “Although recent decisions, including Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), may arguably cast doubt on the future prospects of Almendarez-Torres’s holding regarding prior convictions, the Supreme Court has not explicitly overruled Almendarez-Torres. As a result, [this Court] must follow Almendarez-Torres.” United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 546 U.S. 951 (2005). Second, Maya-Linares argues, for the first time on appeal, that the district court erred in light of Shepard because it made findings of fact about his prior conviction. We review issues raised for the first time on appeal for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under the plain error standard, we will not correct an error raised for the first time on appeal unless we find (1) error, (2) that is plain, and (3) that affects substantial rights. 3 We conclude that the district court did not err when enhancing Maya Linares’s maximum sentence and sentencing him to 36 months’ incarceration.1 Based upon the reasoning set forth above, the government was not required to allege the prior conviction in the indictment nor prove the same beyond a reasonable doubt. Additionally, Maya-Linares failed to object to the characterization of his prior conviction being an aggravated felony. In fact, at the time of sentencing, defense counsel confirmed to the court that no factual matters in the PSI were in need of discussion. See United States v. Wade, 458 F.3d 1273 (11th Cir. 2006), cert. denied, 127 S.Ct. 2096 (2007) (holding that failing to object to facts contained in the PSI admits them for sentencing purposes). Because the first prong of the plain error test is not satisfied, the inquiry stops there. Upon review of the record, transcripts, and the presentence investigation report, and upon consideration of the parties’ briefs, we discern no reversible error. AFFIRMED. 2 1 To the extent Maya-Linares also seeks to challenge the guideline enhancement based on the use of a prior conviction, that challenge would be foreclosed because the district court understood the Guidelines to be advisory. See United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005) (holding there is no constitutional error in the district court’s use of extra- verdict enhancements where it applied the guidelines as advisory). 2 Maya-Linares’s request for oral argument is denied. 4	{ "pile_set_name": "FreeLaw" }
168 B.R. 93 (1994) In re Fran P. CLARKSON, Debtor. Bankruptcy No. 93-74091. United States Bankruptcy Court, District of South Carolina. February 7, 1994. Order on Motion for Rehearing April 26, 1994. Fran P. Clarkson, pro se. Jon D. Pifer, Trial Atty., Tax Div., Dept. of Justice, Washington, DC, for creditor. ORDER WM. THURMOND BISHOP, Bankruptcy Judge. This matter comes before the Court on Debtor's motion for sanctions and damages against the Internal Revenue Service ("IRS") for violation of the automatic stay pursuant to 11 U.S.C. § 362(h). FACTS 1. The debtor filed for relief under Chapter 7 of the United States Bankruptcy Code on August 20, 1993. 2. The IRS holds a judgment against the debtor which was entered on April 27, 1989, 94 in United States of America v. Clarkson et al., Civil No. 8:XX-XXXX-X. 3. The debtor's property had been ordered to be sold by the United States District Court and was duly scheduled to be auctioned on Wednesday, August 25, 1993. 4. When the Debtor filed her bankruptcy petition, the debtor not only listed her creditors on the petition but also hand-delivered a copy of her petition to the United States Marshall Service in Columbia, South Carolina, the day the petition was filed. 5. The attorney for the IRS acted diligently and confirmed by August 24, 1993, that the United States Marshal's office in Columbia, South Carolina, had been notified that the auction was cancelled. 6. Unknown to anyone representing the United States and due to a miscommunication between the United States Marshal's office in Columbia, South Carolina, and Greenville, South Carolina, the individual Deputy Marshall conducting the auction in Anderson, South Carolina, did not receive the notice to cancel the sale. 7. The Deputy Marshall conducting the sale arrived at the auction site approximately 15 minutes before the sale, at which time the debtor's husband told the Marshall of the filing and tried to give the Marshall a copy of the petition. 8. The Marshall did not accept the documents nor did he attempt to confirm what the debtor's husband told him regarding the filing of the bankruptcy petition. 9. The Marshall conducted the sale but, at the conclusion of the bidding, there was a problem with payment of the bid. At that time the Marshall called his office. At which time he received notice that the sale should not have been held. The Marshall declared the entire proceeding void. 10. At the hearing, the Marshall testified that he would not have cancelled the sale unless he had a court order to do so or the United States Marshall told him to cancel it. ISSUE Whether the acts of the United States Marshall constituted a willful violation of the automatic stay under 11 U.S.C. § 362(h) affording the debtor relief. DISCUSSION The automatic stay goes into effect when the petition for relief is filed, not when the creditor learns that the petition has been filed. Smith v. First America Bank, 876 F.2d 524 (6th Cir.1989) see, In re Boston Business Machines, 87 B.R. 867 (Bankr. E.D.Pa.1988); 2 Collier on Bankruptcy, 362.03 (15th ed. 1989). Actions by creditors to collect a debt from the debtor, which are taken after the filing of a bankruptcy petition, are void ab initio and of no legal effect. See, Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306 (11th Cir.1982); In re Eisenberg, 7 B.R. 683 (Bankr.E.D.N.Y.1980). Such actions are invalid even though the creditor had no notice of the bankruptcy filing. In re Miller, 10 B.R. 778 (Bankr.D.Md.1981); In re Stephen W. Grosse, P.C., 68 B.R. 847 (Bankr.E.D.Pa. 1987). 11 U.S.C. § 362(h) provides [A]n individual injured by any willful violation of a stay provided by this section shall recover actual damages including costs and attorney's fees, and in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h); In re Dungey, 99 B.R. 814 (Bankr.S.D.Ohio 1989); Archer v. Macomb County Bank, 853 F.2d 497 (6th Cir. 1988); In re Holman, 92 B.R. 764 (Bankr. S.D.Ohio 1988). The term "willful" has been defined as follows by several courts A "willful violation" does not require specific intent to violate the automatic stay. Rather the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant's actions which violated the stay were intentional. In re Bloom, 875 F.2d 224 (9th Cir.1989); In re Inslaw, Inc., 83 B.R. 89 (Bankr.D.D.C.1988); In re Mews [Mewes], 58 B.R. 124 (Bankr.D.S.D.1986); In re Tel-A-Communications Consultants, Inc., 50 B.R. 250 (Bankr.D.Conn. 1985). Whether the party believes in good 95 faith that it had a right to the property is not relevant to whether the act was "willful" or whether compensation must be awarded. In re Bloom, supra.; In re Inslaw, Inc., supra.; In re AM International, Inc., 46 B.R. 566 (Bankr.M.D.Tenn. 1985). The moving party bears the burden of proof in order to prevail on an action for violation of the automatic stay and must prove his case by clear and convincing evidence. In re Zunich, Id.; In re Wagner, 74 B.R. 898 (Bankr.E.D.Pa.1987): In re Mack, 46 B.R. 652 (Bankr.E.D.Pa.1985). Each violation of the automatic stay must be considered in its entirety, with due consideration of the underlying facts prior to any levy of sanctions. In re Zunich, 88 B.R. 721 (Bankr.W.D.Pa.1988), In re Ramage, 39 B.R. 37 (Bankr.E.D.Pa.1984). The IRS argues that there was no "willful violation" of the stay under 11 U.S.C. § 362(h). The Deputy Marshall is an agent of the IRS. Although the Deputy Marshall did not receive notice of the sale cancellation, the Deputy Marshall testified that he would not have stopped the sale absent instructions to do so by his superior or a judge. This Court finds that this constitutes a "willful violation" of the stay. While IRS argues that there can be no claim for monetary recovery against the IRS as there is no waiver of immunity by the government, it is not necessary for the court to address this issue as the moving party has not met her burden of proof that she has been damaged in any way by this stay violation. It is therefore ORDERED that the debtor's motion for sanctions and damages against the Internal Revenue Service for violation of the automatic stay is denied. AND IT IS SO ORDERED. ON MOTION FOR REHEARING Before the Court are the Motion for Rehearing and the Motion for Damages of the debtor, Fran P. Clarkson. The debtor requests the Court to reconsider an order dated February 7, 1994 denying the debtor's motion for sanctions and damages against the United States (Internal Revenue Service). In particular, the debtor asserts that the Court erred in determining that she was not injured by a violation of the automatic stay. This Court conducted a hearing in these matters on April 6, 1994 at Spartanburg, South Carolina. The debtor appeared pro se and the United States was represented by attorney Jon D. Pifer, Department of Justice, Tax Division. Based upon full consideration of the arguments of the parties, the Court finds no error in its order of February 7, 1994. The debtor failed to satisfy her burden to prove that she sustained an injury or suffered damages as a result of the stay violation, and the Court therefore properly denied her motion for sanctions and damages. The debtor's Motion for Rehearing is therefore DENIED, and the recent Motion for Damages is also DENIED as moot. SO ORDERED.	{ "pile_set_name": "FreeLaw" }
UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 97-20630 Summary Calendar DONALD L. BLOOM, on behalf of Ruth I. Bloom, Plaintiff-Appellant, VERSUS THE DEPOSITORY TRUST COMPANY, Defendant-Appellee. Appeal from the United States District Court For the Southern District of Texas (H-95-CV-4465) January 26, 1998 Before WISDOM, WIENER, and DENNIS, Circuit Judges. PER CURIAM:* Donald L. Bloom pro se, filed the present suit against the Depository Trust Company (DTC) on behalf of Ruth Bloom, his mother, under a general power of attorney. Bloom alleges that DTC wrongfully disbursed security bonds owned by his mother. He also alleges that DTC is liable for punitive damages because of constructive fraud. Bloom filed this suit in federal court, invoking the court’s diversity jurisdiction under 28 U.S.C. § 1332. The district court dismissed this action for want of subject matter jurisdiction. It found, to a legal certainty, that this case did not meet the * 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. $50,000 amount in controversy requirement.2 Bloom appeals this dismissal. We affirm. We review the dismissal for want of subject matter jurisdiction de novo.3 “The rule governing dismissal for want of jurisdiction in cases brought in the Federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”4 When the defendant has challenged the amount in controversy in the proper manner, the plaintiff must support his allegations of jurisdictional amount with competent proof.5 To meet this burden, Bloom, the plaintiff, must show “that it does not appear to a legal certainty that its claim is for less than the jurisdictional amount.”6 “Good faith” alone is not the test. DTC has placed the amount in controversy in issue. DTC maintains that Bloom’s allegations relate to five Puerto Rico Housing Authority Bonds, Numbers 764, 800, 801, 802, and 803, each with a face value of $ 5,000. The interest on those bonds totals approximately $ 12,000. DTC further maintains that Bloom’s request for $ 3 million in punitive damages is not cognizable under the law. DTC concludes that the amount in controversy is, at most, $ 37,000. Bloom counters by arguing that 2 The current version of 28 U.S.C. §1332 vests the federal courts with diversity jurisdiction only for cases in which the amount in controversy exceeds $75,000. This suit was filed in September of 1995, before the required amount in controversy was raised. 3 Stiles v. GTE Southwest Inc., 128 F.3d 904, 906 (5th Cir. 1997). 4 St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-9 (1938) (internal citations omitted). 5 Lister v. Comm. Court, 566 F.2d 490, 492 (5th Cir. 1978). The party seeking to invoke the federal court’s jurisdiction bears the burden of proof on the issue of jurisdictional amount. See Allen v. R & H Oil & Gas Co, 63 F.3d 1326, 1335 (5th Cir. 1995). 6 Wright, Miller, & Cooper, Federal Practice and Procedure: Jurisdiction § 3702 (1985). 2 there are two, and possibly three sets of Puerto Rico bonds at issue. He also alleges that he has a valid “constructive fraud” claim for punitive damages based upon § 8-320 of the New York Uniform Commercial Code (U.C.C.). After reviewing the record and the law upon which Bloom relies, we find that he has failed to meet his burden. The amount in controversy is at most $ 37,000. Bloom’s arguments that there are multiple sets of Puerto Rico bonds are based primarily upon the haphazard use of identification numbers for the bonds in communications between Bloom and DTC. The five Puerto Rico bonds were initially used as collateral for surety bond # 4590416 with the Fidelity & Deposit Company of Maryland. The identification number “4590416" is unrelated to the Puerto Rico bonds themselves. To suggest that the mistaken use of this number on communications between the parties meant that there were additional Puerto Rico bonds is pure speculation. Speculation is not sufficient to meet Bloom’s burden.7 The parties also referred to the bonds under “cusip # 745281PL3". The parties agree that this is the “correct” identification number for the Puerto Rico bonds. Bloom has not offered evidence to show that there is any more than one set of five bonds with a total face value of $ 25,000. Bloom’s subjective belief that there are additional bonds is insufficient to overcome the lack of factual support.8 Bloom also sought $ 3 million in punitive damages due to DTC’s constructive fraud in concealing the bonds. Although punitive damages are included when determining if the amount in controversy is met,9 the district court did not err in refusing to count the punitive damages in this case 7 See Diefenthal v. Civil Aero. Bd., 681 F.2d 1039, 1052-3 (5th Cir. 1982). 8 Contrary to Bloom’s argument, this is not a case in which subsequent event were s used to attempt to oust the court’s jurisdiction. Instead, the court merely determined the actual value of the object of the suit at the time the case was filed. 9 See Allen v. R & H Oil & Gas Co, 63 F.3d 1326, 1335 (5th Cir. 1995). 3 because Blo om’s claim for constructive fraud fails as a matter of law. To state a claim for constructive fraud, the plaintiff must allege that the defendant has breached a legal or equitable duty owed to the plaintiff.10 This often involves a breach of trust or confidential relationship. DTC did not owe any legal or equitable duty to Bloom, and section 8-320(5) of the U.C.C. did not create one.11 For the foregoing reasons, we find that the district court did not err in dismissing this action for lack of subject matter jurisdiction. The judgment of the district court is AFFIRMED. 10 See Matter of Monnig’s Dept. Stores, Inc., 929 F.2d 197, 201 (5th Cir. 1991). 11 Section 8-320(5) of the New York U.C.C. does not create a legal duty between DTC and Bloom. It merely acknowledges that Bloom is free to pursue whatever remedies it may have (from other sources) against DTC. 4	{ "pile_set_name": "FreeLaw" }
444 P.2d 816 (1968) Lawrence S. MORRISON, Plaintiff, v. ARDMORE INDUSTRIAL DEVELOPMENT CORPORATION, a corporation et al., Defendants. No. 43112. Supreme Court of Oklahoma. August 20, 1968. As Amended September 13, 1968. Joe B. Thompson, Ardmore, for plaintiff. Andrew B. Riddle, Jr., Ardmore, George J. Fagin and Andrew J. Haswell, Jr., Oklahoma City, for defendants. 818 LAVENDER, Justice. In this original proceeding in this court, the plaintiff, as a resident and taxpayer of, and owner of property in the City of Ardmore, Oklahoma, acting upon behalf of himself and all others similarly situated, asks this court to assume original jurisdiction and to enjoin the trustees of the Ardmore Development Authority from executing a proposed bond indenture, a proposed lease agreement between the trustees and Uniroyal, Inc., a corporation, which would produce the revenues for payment of the bonds to be issued under the proposed bond indenture, and the interest thereon, and from issuing any bonds, pursuant to the proposed bond indenture, which would provide the funds for the acquisition of the land, and the construction and equipment of improvements thereon, covered by the proposed lease, or taking any further action or proceedings in connection therewith. The essential facts pleaded by the plaintiff are admitted by the defendants. By a written trust indenture dated April 15, 1964, the Ardmore Industrial Development Corporation, a corporation, as "trustor," and seven individuals, as "trustees," created a public trust, with the City of Ardmore, Oklahoma, as the "beneficiary," for the purpose (among others) of acquiring, owning, constructing, reconstructing, extending, improving, leasing, purchasing, installing, equipping, maintaining, repairing, enlarging, remodeling, and operating buildings and other facilities for (among 819 other purposes) the use of corporations, individuals, partnerships or proprietary companies for industrial development; and, in accordance with the provisions of Oklahoma's "public trust act" (60 O.S. 1961, §§ 176 through 180), the City of Ardmore accepted the beneficial interest in such trust, which was done by city ordinance and such acceptance was endorsed on the trust indenture. That trust indenture provided that the trustees of the trust shall be citizens and residents of the beneficiary city who are the persons then holding the offices of President, Vice President, Second Vice President, and Treasurer of the trustor corporation, and the Mayor of the beneficiary city, as voting trustees, and the City Manager of the Beneficiary and the Executive Manager of the Chamber of Commerce of the beneficiary city, as non-voting, advisory trustees, and their successors in office. The seven individuals who executed the trust indenture as "trustees," and thereby accepted the duties of trustees thereunder, occupied those offices at the time. Under date of November 29, 1967, the corporate trustor, the beneficiary city, and the seven trustees of the Ardmore Development Authority, entered into a written instrument amending some of the provisions of the original trust indenture relating to the trustees of the trust. The amendment provided for twelve trustees, with nine of them, referred to as "regular" trustees, having all of the voting power, and three of them, referred to as "ex-officio" trustees (the City Manager of the beneficiary city, the Executive Manager of the Chamber of Commerce, and the person named by the "trustees" as the General Manager of the Trust and Industrial Director of the beneficiary city), and their successors, being non-voting, advisory trustees. Under the amendment, three of the nine voting trustees are appointed by the governing body of the beneficiary city, and three of them are appointed by the board of directors of the Chamber of Commerce of the beneficiary city, and those six trustees appoint the other three voting trustees. The City of Ardmore officially accepted the beneficial interest under the trust indenture as so amended, and the present trustees were appointed as provided in this amendment. By stipulation filed herein, the parties hereto state that, by written instrument attached to the stipulation, all other parties having vested interests because of prior transactions with the trustees consented to this amendment to the original trust indenture and to a second amendment to the original trust indenture, hereinafter mentioned. The trustees admit that, as alleged by the plaintiff, they intend to execute the proposed bond indenture and the proposed lease agreement, pleaded by the plaintiff, and to issue the $73,000,000. aggregate principal amount of industrial development bonds provided for in that bond indenture, without any approval of any such action by the electors of the beneficiary city. As the basis for the injunction prayed for by the plaintiff, he contends, first, that the above-mentioned amendment of the trust indenture terminated the trust because it is in violation of the following provision of Section 1 of Article VIII of the trust indenture: "* * * Trustor now declares that this Trust Indenture shall be irrevocable from the moment it is signed by him and delivered to the Trustees, and that it shall thereafter stand without any power whatsoever at any time to alter, amend, revise, modify, revoke or terminate any of the provisions of this Trust Indenture;" and second, that, if such amendment be effective, it results in the beneficiary city having such practical control over the trustees and the trust that the legal and equitable interests of the trustees and the beneficiary under the original trust indenture merged and terminated the trust, or that the city is using the trust in such a way as to come within the exception stated in the second paragraph of the court's syllabus to Fort v. Oklahoma Industries, Inc., et al. 820 (1963), Okl., 385 P.2d 470, so that the provisions of the Local Industrial Development Act (62 O.S. 1961, §§ 651 through 664) are applicable and the bonds in question cannot be issued without the approval of a majority of the qualified electors of the city voting at an election called for that purpose and the bonds must comply with the provisions of that act. Considering the questions concerning the application of the Local Industrial Development Act (which can be reached only after determining the questions concerning the effectiveness of the amendment to the original trust indenture involved in this case) to be of as much public importance, and the need for an early determination thereof to be as great, as in Fort v. Oklahoma Industries, Inc., supra, or in Meder v. City of Oklahoma City et al. (1960), Okl., 350 P.2d 916, or Morris v. City of Oklahoma City et al. (1956), Okl., 299 P.2d 131, we have assumed original jurisdiction on the basis of those cases. We construe the provision of Section 1 of Article VIII of the original trust indenture, relied upon by the plaintiff, as being applicable only to unilateral action by the trustor, and as not precluding any action mentioned therein when taken jointly, as here, by the trustor, the trustees of the trust, and the beneficiary of the trust, with the consent of all other interested parties. Under the provisions of 60 O.S. 1961, § 175.41, every trust (other than a spendthrift trust not created by the trustor for his own benefit) is revocable by the trustor unless expressly made irrevocable by the terms of the instrument creating the trust, but any trust (other than a spendthrift trust not created by the trustor for his own benefit) may be revoked by the trustor upon the written consent of all living persons having a vested or contingent interest in the trust. Since an alteration, amendment, revision, or modification of a provision of an instrument creating a trust, in effect, revokes a portion of the trust, we hold that any trust which may be revoked entirely in the manner provided in 60 O.S. 1961, § 175.41 may be altered, amended, revised, modified, revoked, or terminated, in part, in the same manner. Especially in view of our construction of the portion of Section 1 of Article VIII of the original trust indenture involved in this proceeding, relied upon by the plaintiff, as being applicable only to unilateral action of the trustor, the above-mentioned amendment to the original trust indenture was not in violation of that provision of the indenture. Under the declaration of trust involved in Woodward v. City of Anadarko et al. (1960), Okl., 351 P.2d 292, the members of the governing body of the beneficiary city were, ex officio, the trustees of the public trust created thereby, and the city manager of the beneficiary city was, ex officio, the general manager of the trust, under the direction of the trustees. This court held, in the second paragraph of its syllabus to the opinion in that case: "The fact that the trustees of said trust also are members of the governing body of the City of Anadarko in law does not effect a merger of the estates of the trust or create any conflict of interest or duties." Under that view of the law, there certainly would be no merger of the estates of the trust in the present instance, where, under the trust indenture, as amended, the governing body of the beneficiary city only appoints three of the nine trustees who have voting power, the city manager of the beneficiary, although an advisory trustee, has no voting power, and the only other trustee who, under the trust indenture, as amended, is an official of the beneficiary, becomes a trustee and a city official (Industrial Director) by virtue of his appointment, by the other trustees, as General Manager of the trust. Furthermore, under the provisions of this trust indenture, as amended, concerning the appointment of trustees of the trust, the governing body of the beneficiary city has no more control over the trustees and 821 the trust than the board of directors of the Chamber of Commerce of the beneficiary city is given thereunder. We conclude that, as in Fort v. Oklahoma Industries, Inc., supra, the Local Industrial Development Act (62 O.S. 1961, §§ 651 through 664) has no application to the situation presented by the pleadings in this case. This disposes of a related contention by the plaintiff that a second amendment to the original trust indenture, under date of July 8, 1968, (relating to the trustees contracting for construction work and materials), which was entered into, and consented to, by all interested parties in the same manner as was the first amendment mentioned above, was ineffective because in violation of Section 1 of Article VIII of the original trust indenture, or, if effective otherwise, is in conflict with the provisions of the Local Industrial Development Act (62 O.S. 1961, §§ 651 through 664). As separate bases for his prayer for an injunction to prevent the execution of the proposed bond indenture and lease agreement, and the issuance of the bonds provided for in the bond indenture, the plaintiff makes several attacks on the forms of lease agreement and bond indenture as submitted to this court as a part of his petition herein. For instance, he attacks the lease agreement as being invalid because of insufficient consideration for the use of the leased property and as the purchase price of the leased property in event the lessee exercises its option to purchase the property either during the primary (original) term of the lease which expires on September 1, 1993, or during an additional twenty-five year term provided for in the lease agreement at the option of the lessee. He contends that, under the lease agreement, the rental to be paid during the primary term of the lease would equal only the total of the principal of, and interest on, the bonds to be issued to finance the project, and that the lessee is given the option to purchase the leased property for not less than one dollar at any time during the primary term of the lease, or for one dollar at any time during the additional term if the lease be renewed. However, under the provisions of the lease agreement, the lessee is, in any and all events, obligated to pay, prior to each interest payment date during the primary term of the lease, not only rental equal to the principal of, and interest on all of the bonds coming due on that interest payment date (except the interest on the bonds from the date thereof, September 1, 1968, to the date of the original delivery thereof, which is to be paid by the successful bidder for the bonds as a part of the purchase price therefor), but also all costs and expenses in connection with the original issuance of the bonds, the compensation of paying agents for the bonds, and the compensation of, and necessary advances made by, the trustee for the holders of the bonds provided in the bond indenture, as well as all costs and expenses of purchasing, or redeeming, outstanding unmatured bonds in the event the lessee, prior to retirement of all of the bonds, exercises its option to purchase the leased property. The lessee is given the option to purchase the leased property, at any time prior to retirement of all of the bonds (and, apparently, it is contemplated that the last maturity shall be not later than the date of the expiration of the primary term of the lease), if the lessee then not be in default, for an amount necessary to make the total in the bond sinking fund sufficient to purchase, or to redeem at the earliest possible date, all then outstanding bonds. The lessee is also given the option, if not in default, to renew the lease agreement for an additional term of twenty-five years from the end of the primary term, at a rental of $2,000.00 per month but otherwise under the same covenants and provisions which relate to the primary term, with the option, at any time during such additional term, if not then in default, to purchase the leased property for one dollar. In other words, under the basic plan set forth in the proposed lease agreement, the State of Oklahoma and particularly the 822 City of Ardmore gains a new industry, possibly permanently, but in any event for approximately twenty-five years and possibly for approximately fifty years, all in harmony with the state's policy, as expressed in the Constitution and statutes, of industrial development, and at no cost whatsoever to either the people of this State, the city or to the public trust involved. As examples of the plaintiff's attacks on the proposed bond indenture, he argues that it does not specify the name of the trustee for the holders of the bonds, or the exact amount of coupon bonds and of registered bonds (both of which are provided for therein), or the rate or rates of interest to be paid on such bonds. Under the proposed bond indenture, the bonds as originally issued in the aggregate principal amount of $73,000,000.00 may be coupon bonds or fully registered bonds, or any combination thereof, as specified by the successful bidder for the bonds, and, at any time prior to maturity, bonds of either class may be exchanged for bonds of the other class, at no expense to the trust. For this reason, the exact amount of each class of bonds to be issued under the bond indenture cannot be specified therein. We also note that the form of proposed bond indenture, as submitted to this court, bears the legends on the front page thereof, "6710-II Proof of July 22, 1968," and "Contained herein is a preliminary draft of a proposed Bond Indenture which is subject to correction and change. This draft is for information purposes only," and that the form of proposed lease agreement bears similar legends on the front page thereof. Obviously, it is contemplated that, prior to the execution of the proposed instruments, all of the blank spaces in these forms will be filled in with the proper information, with the schedule of bond maturities missing from the bond indenture to be determined in the meantime, and the interest rate or rates, missing from the same instrument, to be in accordance with the bid of the successful bidder for the bonds, and the name of the trustee for the holders of the bonds to be filled in after arriving at an agreement with an entity possessing the qualifications specified in the bond indenture form for such a trustee, and with the blanks in the lease agreement form to be filled in in harmony with the bond indenture. We perceive no legal objection to any part of the basic plan for the acquisition, construction, equipping, and financing of the proposed project, as disclosed by the preliminary drafts of proposed bond indenture and proposed lease agreement submitted to the court. As in the case of Meder v. City of Oklahoma City et al., supra, and for the same reasons, we have concluded that our holding in this case should be advisory as well as directory. Based upon our examination of the instruments involved, we hold that the original trust indenture creating the Ardmore Development Authority, dated April 15, 1964, and the first and second amendments thereto, dated November 29, 1967, and July 8, 1968, respectively, are valid, legal and binding instruments; and that the basic plan for the acquisition, construction, equipping, and financing of the project described in the proposed lease agreement, as set forth in the above mentioned preliminary drafts of proposed bond indenture and proposed lease agreement, to be entered into as of September 1, 1968, can, validly, be carried out under the principles of the common law relating to trusts, as modified by the Oklahoma public trust act (60 O.S. 1961, §§ 176 through 180) and the general statutes relating to trusts, without compliance with the provisions of the Oklahoma "Local Industrial Development Act" (62 O.S. 1961, §§ 651 through 664); that the duly appointed, qualified and acting trustees of the Ardmore Development Authority could, validly, execute the proposed forms of bond indenture and lease agreement submitted to this court, if completed as contemplated by those forms; and that, if the incurring of the indebtedness provided 823 for in such bond indenture, in accordance with the provisions of the bond indenture, and the execution of such completed bond indenture and lease agreement upon behalf of the Authority, be first duly authorized by proper resolution of the trustees of the Authority, such bond indenture and lease agreement would be valid and binding instruments and the obligations arising thereunder and in accordance with the provisions thereof would be enforceable by and against the trustees of the Authority in accordance with the terms and tenor thereof. It is, therefore, the judgment of this court that the injunction prayed for by the plaintiff herein to prevent the trustees of the Ardmore Development Authority from executing the proposed bond indenture and proposed lease agreement, hereinabove mentioned, and from issuing the bonds provided for in the proposed bond indenture or taking any further action or proceedings in connection therewith, should be, and hereby is, denied. All the Justices concur.	{ "pile_set_name": "FreeLaw" }
599 P.2d 147 (1979) Jorge CALANTAS, Appellant, v. STATE of Alaska, Appellee. No. 3663. Supreme Court of Alaska. August 31, 1979. 148 Dana Fabe, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant. William H. Hawley, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ. OPINION BURKE, Justice. After trial by jury Jorge Calantas was adjudged guilty of two counts of assault with intent to kill. AS 11.15.160. The superior court sentenced him to concurrent six year terms of imprisonment. Alleging multiple errors, Calantas filed this appeal. We affirm his conviction and sentence. I On October 21, 1976, Calantas and some friends attended a movie and then went to a bar. A man with another group at a nearby table apparently became angry when Calantas refused to come over and drink with him. When Calantas left the bar, the group from the other table followed. After leaving the bar Calantas turned to look back and saw the group walking behind him. He then armed himself with a pistol. Calantas testified that, 149 when he turned a second time, he thought he saw one of the men reach for a gun and that he (Calantas) fired three or four shots into the ground to frighten the other individuals. The shots wounded two people. Calantas was subsequently indicted on two counts of assault with intent to kill and was convicted following a trial by jury. II Calantas's first claim of error concerns the methods used to assemble the panel of prospective jurors needed for his trial. Specifically he complains of the court clerk's decision to disqualify all jurors living outside of Kodiak proper and her later decision to summon only those Kodiak residents that she could reach by telephone. These methods, he argues, violated the statutory requirement that the names of prospective jurors be randomly selected from those qualified, AS 09.20.060 & 09.20.070, and the requirement of Criminal Rule 24.1 that petit jurors be selected from "the population within a fifty-mile radius of the urban center designated as the site of the criminal trial." Rule 24.1(a), Alaska R.Crim.P. He further argues that the decision to summon only those jurors that could be reached by telephone violated other provisions of the court's rules and destroyed any hope of a random selection of names for the jury panel. See, e.g., Rule 20(d), Alaska Admin.R. Selection of jurors by any method which fails to substantially comply with the statutory requirements is reversible error if the failure "prejudices the rights of a party." AS 09.20.040. Here there is no doubt that there were technical violations of the statutory selection methods; like the Fifth Circuit, however, we believe that such violations "constitute `substantial failure to comply' [only] when they affect the random nature or objectivity of the selection process." United States v. Kennedy, 548 F.2d 608, 612 (5th Cir.1977).[1] Calantas's trial and the events leading to his indictment and conviction took place in Kodiak. In mid-March 1977, approximately three weeks before the trial was scheduled to begin, the deputy clerk of court received a computer list of potential jurors from the office of the area court administrator in Anchorage. Questionaires were mailed to those on the list, but the responses indicated that about two-thirds of the individuals listed had moved or were otherwise unavailable for service. When she became aware of what she characterized as the "terror of the situation," a week before the scheduled trial date, the deputy called Anchorage and asked for a list of additional prospective jurors. Due to an unexplained delay, the new list was not received until Friday, April 1, only three days before Calantas's trial was to begin on Monday, April 4. The deputy clerk and her assistant spent that evening and the next day, Saturday, trying to identify a sufficient number of available individuals from the 300 named on the computer list to allow Calantas's trial to proceed as scheduled. In doing so they first excluded those not living in Kodiak proper, approximately 100 people. Some of those excluded, however, lived within a fifty-mile radius of Kodiak. From the remaining 200 names, they identified those whose names appeared in the Kodiak telephone directory. There were eighty such individuals. The eighty names were then placed in a box from which the deputies drew forty names at random. Because they were unable thereafter to reach a sufficient number of these individuals to provide a panel of suitable size, they ultimately attempted to telephone all eighty people whose names were in the box, eventually reaching fourteen of them. These fourteen, together with twenty-one from the original, mid-March list made up the panel of prospective jurors provided for Calantas's trial. The trial judge, in denying Calantas's motion to strike the array, acknowledged that 150 the mid-March list was inadequate and that the second list was not furnished in a timely fashion; he found that the additional fourteen people were secured from a fair cross-section of the community and that the group included three or four people of the same occupation as the defendant and one who, like Calantas, was a Filipino. He ruled that the situation was the result of extraordinary circumstances calling for him to exercise his discretion and found that the selection procedures had not prejudiced the defendant. Despite Calantas's assertions to the contrary, we think the trial court's assessment of the situation was correct. Therefore, we find nothing in the jury selection process that requires us to reverse his conviction. III Calantas next contends that the trial court erred in failing to grant his motion for judgment of acquittal. See Rule 29, Alaska R.Crim.P. He argues that there was "no evidence" to support the jury's conclusion that he assaulted his victims with the specific intent to kill them. Viewing the evidence and the inferences to be drawn therefrom in the light most favorable to the state, we believe that fairminded people, in the exercise of reasonable judgment, could differ on the question of whether Calantas acted with the specific intent to kill. Thus, his motion for judgment of acquittal was properly denied. Des Jardins v. State, 551 P.2d 181, 185 (Alaska 1976). IV As it was required to do, the superior court instructed the jury that a specific intent to kill was an essential element of the crimes charged and that it was incumbent upon the state to prove beyond a reasonable doubt that Calantas acted with such intent before it was entitled to a conviction for assault with intent to kill. The jury, however, was also instructed: It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably expect to result from any act knowingly done or knowingly omitted by the accused. Calantas made no objection to this instruction in the court below but now claims that it was erroneously given, arguing that it amounted to a general intent instruction that conflicted with the other instructions requiring proof of a specific intent. This error, he further contends, was made worse when the court defined the term "wilfully," as used in his indictment, as follows: The word "wilfully," when applied to the intent with which an act is done or omitted and as used in the instructions, implies simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning any intent to violate law, or to injure another, or to acquire any advantage. These instructions, according to Calantas, could have misled the jury into believing that no specific intent to kill was necessary for a conviction of assault with intent to kill. The first instruction that he complains of, sometimes called the Mann[2] instruction, was condemned by this court in Menard v. State, 578 P.2d 966 (Alaska 1978). In that case, decided after Calantas's trial, we held that it was error to give the instruction and "admonish[ed] Alaska trial courts to [stop] using it." Id. at 970. Following the example set by the Fifth Circuit, however, "we decline[d] to hold that this error will always be deemed reversible." Id. The defect that concerned us in Menard is that the words "so unless the contrary appears from the evidence" may result in an 151 impermissible shifting of the burden of proof by requiring the defendant to prove his lack of intent. Here we believe the other instructions that were given made it absolutely clear to the jury that it was the state's burden to prove beyond a reasonable doubt that Calantas acted with the specific intent to kill and that that burden remained with the state throughout the trial. We are equally convinced that, when the instructions are considered as a whole, the jury could not have been misled into thinking that a general intent was all that was required for conviction of the crime of assault with intent to kill. V Calantas's final contentions are that in sentencing him to concurrent six-year terms[3] the superior court (1) failed to give proper consideration to his potential for rehabilitation and (2) violated the constitutional prohibition against double jeopardy.[4] It is clear that separate sentences may be imposed where there is evidence to support the conclusion that the offender intended to harm more than one person. Cooper v. State, 595 P.2d 648 (Alaska 1979); Thessen v. State, 508 P.2d 1192, 1197 (Alaska 1973). In this case, we believe that there was evidence supporting the jury's conclusion that Calantas intended to kill both of his victims. Thus, it was proper for the court to impose separate sentences; the constitutional prohibition against double jeopardy was not violated. Id. Calantas's claim that the trial judge failed to consider his potential for rehabilitation is not supported by the record. AFFIRMED. NOTES [1] Kennedy was decided under the federal Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1869 (1976). Section 1867(a) of the Act provides that an indictment may be dismissed where there has been a "substantial failure to comply" with statutory jury selection procedures. [2] The instruction derives its name from Mann v. United States, 319 F.2d 404 (5th Cir.1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964). [3] The crime of assault with intent to kill is punishable by imprisonment "for not more than 15 years nor less than one year." AS 11.15.160. [4] See Alaska Const. art. I, § 9.	{ "pile_set_name": "FreeLaw" }
671 F.2d 1377 Carthanv.Middlebrooks 81-3150 UNITED STATES COURT OF APPEALS Fifth Circuit 3/19/82 1 W.D.La. AFFIRMED 2 --------------- Fed.R.App. P. 34(a); 5th Cir. R. 18.	{ "pile_set_name": "FreeLaw" }
8 F.3d 798 144 L.R.R.M. (BNA) 2569, 62 USLW 2324,8 IER Cases 1846 David L. DIXON, Petitioner,v.DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATIONADMINISTRATION, Respondent. No. 92-3478. United States Court of Appeals,Federal Circuit. Oct. 26, 1993. Donald L. Kohl, Shea & Kohl, St. Charles, MO, argued, for petitioner. Robert J. Krask, Dept. of Justice, Washington, DC, argued, for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Thomas W. Petersen, Asst. Director, and Ellen M. McElligott, Commercial Litigation Branch, Dept. of Justice, Washington, DC, were on the brief, for respondent. Before NEWMAN, RADER and SCHALL, Circuit Judges. SCHALL, Circuit Judge. 1 Petitioner David L. Dixon petitions for review of an arbitrator's award denying his grievance that he was improperly removed from his position with the Department of Transportation's ("DOT's") Federal Aviation Administration ("agency") for having altered, adulterated, or substituted a urine sample during a random drug test.1 Because we conclude that the arbitrator's award is not supported by substantial evidence, we reverse and remand.BACKGROUND 2 Following his removal, petitioner filed a timely grievance in accordance with the terms of the labor relations agreement between his union and DOT ("Agreement"). After the grievance was denied, the matter was submitted to an arbitrator. The following statement of facts is based upon the evidence before the arbitrator, including testimony taken at a hearing on February 20, and 21, 1992.2 3 At the time of the events in question, petitioner had been employed by the agency for five years as an electronics technician. Award at 1. In that position, he was responsible for maintaining vital equipment and was classified as a Category I employee by the agency. Id. As such, he was subject to random drug testing as a condition of his federal service. Petitioner had previously passed several random drug tests, the most recent one having been on January 14, 1991. Tab A15, Exhibit A at 8. 4 At about 9:30 a.m. on April 4, 1991, petitioner's supervisor, Leo J. Tabaka, notified him that he had been scheduled for a random drug test later that morning. Award at 2. Petitioner continued in his work routine until about 11:00 a.m., at which time he went to the lunchroom. There, he waited with two other agency employees who also were scheduled for random testing that day. Id. When these employees were unable to give samples at the time they were scheduled to do so, petitioner volunteered to give his sample. Id. There is no evidence in the record that petitioner left the lunchroom or used the drinking fountain or sinks near the lunchroom prior to giving his sample. Id. at 3; Tab A15, Exhibit A at 1-2. 5 In the sample collection area, petitioner met Kenneth Zimmerman, a specimen collector for a private health care company contractor. Award at 3. After filling out the first part of a drug test custody and control form ("custody and control form"), Mr. Zimmerman accompanied petitioner to a restroom. Once in the restroom, Mr. Zimmerman taped the faucets in the sink and poured a blue dye into the toilet water. Id. Then he directed petitioner to fill at least half of a collection cup, at which point he left the restroom. Id. After he had filled the cup, petitioner knocked on the door to summon Mr. Zimmerman. Id. Mr. Zimmerman accompanied petitioner back into the restroom. Id. Inside the restroom, Mr. Zimmerman asked petitioner to read a temperature strip attached to the collection cup. Id. 6 Petitioner testified that the temperature of the sample was 92? F, id., and that the sample was "[t]he color of urine." Tr. at 369. At the hearing, Mr. Zimmerman could not remember the exact temperature of the sample. Award at 3. However, Mr. Zimmerman did mark on the custody and control form that the sample's temperature had been read within four minutes of collection and was in the acceptable range of from 90.5? to 99.8? F. Tr. at 111. When asked at the hearing whether he remembered anything about the color of the sample, Mr. Zimmerman testified as follows: "No. I'll tell you. I--it's really hard to say, you know. It just looked okay to me, you know. I can't--had a good temperature. We looked for that, and I, you know--it looked like it was okay to me." Tr. at 116-17. Mr. Zimmerman did not note on the custody and control form anything unusual about the color of petitioner's specimen. Award at 3; Tab A2 at 5. Patrick Moran, a specialist in DOT's Departmental Drug Office, who managed the contract for the collection of urine samples for DOT's drug testing program, Tr. at 10-11, testified that a clear sample would be unusual. Tr. at 55. He also testified that if a specimen collector observed a clear sample, he or she was expected to make a note of such an observation on the custody and control form. Tr. at 55-56. 7 After observing that the sample's temperature was within the acceptable range, Mr. Zimmerman poured the sample into a specimen bottle and sealed the bottle with an adhesive seal taken from the custody and control form. Award at 3. At the hearing, Mr. Zimmerman demonstrated the sealing of a specimen bottle. Tr. at 112-114. The resulting seal was smooth and unwrinkled. Tr. at 355. At Mr. Zimmerman's request, petitioner initialed and dated the seal. Award at 3-4. Petitioner testified that the seal he initialed on April 4 looked approximately like the demonstration seal and that he did not notice any wrinkles on it. Tr. at 355-56. Mr. Zimmerman then placed the specimen bottle in a small shipping box, and petitioner and Mr. Zimmerman left the restroom. Award at 4. 8 After leaving the restroom, Mr. Zimmerman and petitioner walked down the hall to an office, where the balance of the custody and control form was completed. Id. Mr. Zimmerman testified that it was his general practice next to insert the custody and control form into the shipping box, and to seal the shipping box for delivery to a drug testing company in the presence of the sample donor. Id. Then, Mr. Zimmerman testified, he would place the sealed shipping box in a larger shipping bag for transfer to an airborne shipping company. Tr. at 138. However, petitioner testified that when he left the office, the custody and control form was still on the desk and had not been sealed in the shipping box with the bottle containing his sample. Award at 4; Tr. at 354. 9 Block VI of the custody and control form has a space where the person who receives the package containing the sample on behalf of the airborne shipping company is to sign. Tab A2 at 5. In petitioner's case, Mr. Zimmerman signed the custody and control form on behalf of Airborne Express. Id. 10 On the custody and control form, beneath Mr. Zimmerman's April 4, 1991 signatures releasing custody of the sample and indicating receipt of the sample on behalf of Airborne Express, the next person specifically identified as having custody of the sample is Marilyn Snelling, an employee of CompuChem Laboratories, Inc. ("CompuChem"). Id. Ms. Snelling's signature attesting to receipt of the sample from the airborne shipping company appears next to an April 5, 1991 date stamp. Id. However, Dr. Shirley Brinkley, a CompuChem Senior Technical Analyst, who testified at the hearing concerning CompuChem procedures for handling and testing of the sample, explained that Ms. Snelling was "[n]ot necessarily" the person who took the box containing petitioner's specimen out of the Airborne Express package. Tr. at 229. 11 According to Dr. Brinkley, the shipping box was removed from the larger shipping bag and opened by an unidentified receiving clerk at CompuChem. Tr. at 156, 229-33. Upon removing the specimen bottle from the shipping box, Dr. Brinkley testified, the receiving clerk noticed that the sample was unusually clear in color, and on the basis of that observation sent the sample directly to a "trouble room" rather than through the normal processing routine. Tr. at 161-62. A trouble room clerk attempted to contact Cynthia Schaeffer, CompuChem's customer service representative for DOT, on April 5. Tr. at 162. Ms. Schaeffer was out of town, however, and did not receive the voice mail notification from the trouble room clerk until four days later on April 9. Id. 12 After speaking to the clerk in the trouble room on April 9, Ms. Schaeffer, on April 10, contacted Ken Edgell, a DOT manager. Id. Mr. Edgell directed CompuChem to take photographs of the bottle containing the sample and to then perform adulteration panel tests on the sample. Tr. at 162, 166. Rather than photographing the sealed specimen bottle, CompuChem photocopied portions of the seal which showed petitioner's initials. Tr. at 162-63. One of the photocopies shows what appears to be a wrinkle near petitioner's initials. Tab A14, photocopy immediately following custody and control form; Tr. at 355-56. A series of adulteration panel tests performed on April 11 and April 18 revealed that the sample in the specimen bottle was not urine. Tr. at 173-74, 177. 13 On April 12, petitioner was informed that there was a problem with his drug test. Award at 6. William Horstman, the agency's section manager for the State of Missouri, told petitioner that the agency would give him an opportunity to be retested on April 15. Tr. at 302. Mr. Tabaka testified at the hearing that petitioner told him that he wanted to be retested. Tr. at 90; Tab A15, Exhibit A at 5. On April 15, however, Mr. Tabaka informed petitioner that the agency would not retest him because it was agency policy not to retest when there was a substitution of a sample. Tr. at 359-60. When petitioner learned that he was not going to be retested by the agency, he made his own arrangements to be tested on April 15 by a local independent testing facility, Chem-Tox, Inc. ("Chem-Tox"). Tr. at 361-62. The results of the Chem-Tox test were negative. Id. 14 At the meeting on April 12, in which petitioner was informed that there was a problem with his drug test, he was asked if he would be willing to have his specimen retested. Tr. at 359. At the hearing, petitioner testified: "I didn't think it would help me, because it it wasn't--if the sample wasn't urine, it wasn't the sample that I submitted, and I did not see how it would help, so I didn't--I really didn't agree to have it retested at that time." Tr. at 359-60. Subsequently, on April 19, Robert Lindsey, an agency manager, recommended to petitioner that he have the CompuChem sample retested by another laboratory. Tab A15, Exhibit A at 6. Petitioner testified that he sought to have the CompuChem sample retested at St. Louis University, but that a Dr. Long of that institution was uncooperative with him. Tr. at 363-65. Petitioner testified that in a telephone conversation he had with Dr. Long, Dr. Long stated in response to his question regarding the color of the CompuChem sample that it was "[p]ale yellow, clear what's the difference?" Tab A15, Exhibit A at 8; Tr. at 366. Petitioner did not attempt to have a test done at any other facility. Award at 7. 15 Mr. Moran testified that DOT policy requires that a supervisor initiate a removal action if a Category I employee is shown to have altered, tampered with, or substituted a urine specimen. Tr. at 21. Later in his testimony, Mr. Moran reiterated that, "[b]ecause of the importance of this program within the Department of Transportation, ... it was determined that [for] anyone who would subvert the program would--the appropriate penalty should be removal." Tr. at 23. 16 Acting under that policy, Mr. Horstman issued petitioner a notice of proposed removal on May 6, 1991. Tab A1. The notice charged petitioner with "[a]lteration, adulteration, or substitution of a urine specimen ..." Id. Mr. Horstman testified that petitioner was a good employee. Tr. at 295-96. He felt, however, that the agency's policy created an overriding consideration, overshadowing all other mitigating factors. Tr. at 297. By letter dated September 23, 1991, Mr. Horstman informed petitioner that, having considered the material submitted by petitioner in opposition to the proposed removal, as well as other material, he had made the decision to remove petitioner. Tab A17. After petitioner's grievance of the removal action was denied, the matter was submitted for arbitration. 17 At the hearing, petitioner denied altering, adulterating, or substituting the urine sample that was submitted to Mr. Zimmerman. Tr. at 378-79. In addition, petitioner submitted character affidavits from fellow agency employees William Leingang, Wilbert Brewton, Steven Oates, Farnsworth Dye, and James Turner. Each of these individuals stated in his affidavit that he had never known petitioner to use drugs and that he had always known petitioner to be truthful and honest. Tab A15, Exhibits B-F. Most of these character witnesses were available to testify, but agency witnesses themselves testified that petitioner was a good worker and that they had no reason to doubt his honesty. The arbitrator remarked: 18 Manager Tabaka had a good opinion of the Grievant and had never seen him with any drugs. He was very surprised at the accusation and thought that a mistake had been made. Manager Horstman also stated that the Grievant was a dedicated individual who did a good job. No management official had any reason to doubt the Grievant's honesty and they all felt he was going to be a good Technician. 19 Award at 7. 20 Petitioner also submitted the July 5, 1991 affidavit of Arthur S. Hume, M.D., a forensic toxicologist in the Department of Pharmacology and Toxicology at the University of Mississippi Medical Center. Tab A15, Exhibit G. In his affidavit, Dr. Hume stated that he had received the packet which petitioner's attorneys had told him was prepared by CompuChem in connection with the April 4 drug test. Id. at 2. In his affidavit, Dr. Hume declared: 21 [I]t is virtually impossible for an individual subject to standard drug testing procedures to substitute tap water or any other liquid for his own urine within the precise temperature range (90.5? -99.8? F) attributed to the sample at item V on Copy 1 of the Drug Testing Custody and Control Form. This temperature range reflects the temperature of freshly voided urine. In order to successfully substitute under the standard drug testing procedures another liquid for urine and have its temperature within a 90.5? -99.8? F temperature range, an individual would have to obtain incredibly sophisticated equipment, such as surgical tubing and an enema bag similar to those used to evacuate the lower colon, and then attach the apparatus under his arm. Even then, however, it is extremely difficult to produce a substitute within a 90.5? -99.8? F temperature range. 22 Id. at 3. 23 Finally, Lillian Gasway, an electronics technician for the agency, Tr. at 338-39, testified that during a random drug test she had observed a collector removing and replacing a seal without breaking the seal. According to Ms. Gasway, the collector was able to remove the seal from a sealed shipping box in order to place a custody and control form in the shipping box which had inadvertently been left out when the box was originally sealed. Tr. at 339-40. 24 On May 14, 1992, the arbitrator issued his award denying the grievance and sustaining the agency's decision to remove petitioner. This appeal followed. DISCUSSION 25 * THE STANDARD OF REVIEW 26 On appeal, petitioner contends that the arbitrator's award is not supported by substantial evidence and that the agency abused its discretion in imposing the penalty of removal. 27 Under the provisions of Article 6, section 2, of the Agreement, the agency was required to prove before the arbitrator "by a preponderance of the evidence" that petitioner had committed the offense with which he was charged. Award at 12.3 28 The arbitrator's award sustaining petitioner's removal is reviewed by this court under 5 U.S.C. § 7121(f) (1988). That statute provides that "section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection] Board." That means that the arbitrator's award must be affirmed unless it is found to be: 29 (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; 30 (2) obtained without procedure required by the law, rule, or regulation having been followed; or 31 (3) unsupported by substantial evidence. 32 5 U.S.C. § 7703(c) (1988); Grigsby v. Department of Commerce, 729 F.2d 772, 774 (Fed.Cir.1984). 33 The critical issue in this case is whether the arbitrator's conclusion that the agency proved the charge against petitioner by a preponderance of the evidence is supported by substantial evidence. See Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed.Cir.1990); Jackson v. Veterans Admin., 768 F.2d 1325, 1330-32 (Fed.Cir.1985); see also Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 758, 221 USPQ 473, 477 (Fed.Cir.1984). The Supreme Court has defined the "substantial evidence" standard as follows: 34 "[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229[, 59 S.Ct. 206, 216, 83 L.Ed. 126]. Accordingly, it "must do more than create a suspicion of the existence of the fact to be established.... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300[, 59 S.Ct. 501, 505, 83 L.Ed. 660]. 35 * * * * * * 36 Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitely precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. 37 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 487-88, 71 S.Ct. 456, 459, 463-64, 95 L.Ed. 456 (1951). 38 Because "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight," we must canvass the entire record. Spurlock v. Department of Justice, 894 F.2d 1328, 1330 (Fed.Cir.1990). In so doing, we are to bear in mind that "[e]xaggeration, inherent improbability, self-contradiction, omissions in a purportedly complete account, imprecision, and errors detract from the weight to be accorded the evidence upon which an administrative board bases its decision." Id. 39 It also is important to recognize what our substantial evidence standard of review does not involve. Specifically, we do not make a de novo decision on the weight of the evidence. De Cicco v. United States, 677 F.2d 66, 70 (Ct.Cl.1982). Rather, we look at the evidence which supports the arbitrator's award and then review the entire record to determine whether factors such as "[e]xaggeration, inherent improbability, self-contradiction, omissions in a purportedly complete account, imprecision, and errors" detract from the weight of that particular evidence. Spurlock, 894 F.2d at 1330. Only if such factors so detract from the weight of the evidence which supports the arbitrator's award, or the agency's evidence is so sparse, that a reasonable fact-finder would not find the charge proved by a preponderance of the evidence may we reverse. See Jackson, 768 F.2d at 1330. 40 The arbitrator's award states that "[t]he key to this case is the question of whether the sample that was given by the Grievant was the sample that reached CompuChem and whether, when the adulteration panel was performed, it was [performed] on the same sample that the Grievant gave." Award at 13. We agree with the arbitrator's characterization of the issue as whether petitioner altered his sample or placed a substitute liquid in the specimen bottle. However, having reviewed the record, we hold that the arbitrator's conclusion that the agency proved by a preponderance of the evidence that petitioner "altered or substituted the sample," Award at 17, is not supported by substantial evidence. II ANALYSIS 41 A. Evidence Supporting the Arbitrator's Award 42 The evidence supporting the arbitrator's award consists of the chain of custody presented by respondent to establish as fact that the liquid tested by CompuChem could have come from no source other than petitioner. The chain of custody begins with Mr. Zimmerman's collection of petitioner's sample and ends with the CompuChem report indicating that the sample attributed to petitioner was not urine. 43 Mr. Zimmerman testified that he received a liquid sample from petitioner on April 4, 1991. He also testified as to how he and petitioner completed the custody and control form. In addition, Mr. Zimmerman testified that it was his general practice to insert the custody and control form into a shipping box along with the bottle containing the donor's sample and to then seal the shipping box (those acts taking place in the donor's presence). Mr. Zimmerman added that later he would place the sealed shipping box in a larger shipping bag for transfer to an airborne shipping company. 44 Mr. Zimmerman's testimony is supported in part by the custody and control form which bears his signature and that of petitioner. It also is supported in part by petitioner's testimony that he gave Mr. Zimmerman a liquid specimen in a bottle and that he and Mr. Zimmerman completed the custody and control form. The body of evidence just described supports the proposition that petitioner submitted a liquid specimen which was packaged for shipment to CompuChem. 45 Respondent also relies upon the evidence consisting of the records of CompuChem and the testimony of Dr. Brinkley. Based upon the custody and control form and various CompuChem documents, Dr. Brinkley testified as to CompuChem's chain of custody procedures in general and as to CompuChem's receipt of a bottle with a label on it bearing petitioner's initials and the date April 4, 1991. She also testified that an unidentified receiving clerk at CompuChem removed the specimen bottle from the shipping box, noticed that the liquid in the bottle was unusually clear in color, and, on the basis of that observation, sent the sample directly to a "trouble room" rather than through the normal processing routine. Dr. Brinkley further testified as to discussions between Cynthia Schaeffer, CompuChem's customer service representative for DOT, and Ken Edgell as to what to do with the sample. Finally, Dr. Brinkley testified that adulteration panel tests were run on the specimen and that those tests revealed that the liquid in the bottle was not urine. The body of evidence just described tends to establish that a bottle was received at CompuChem with a label on it bearing petitioner's initials and the date April 4, 1991, that the fluid in the bottle was tested, and that the test revealed that the fluid in the bottle was not urine. 46 Standing alone, the above evidence may fairly be said to support the conclusion that petitioner committed the offense with which he was charged. To be sure, there is no direct evidence that petitioner altered his urine sample or substituted another fluid for that sample; respondent's case is circumstantial. However, an agency may carry its burden by presenting a case based upon circumstantial evidence. Naekel v. Department of Transp., 782 F.2d 975, 978 (Fed.Cir.1986). Were the above evidence the only evidence in the record, we would have no difficulty affirming the arbitrator's award. It is not the only evidence, however, and as explained above, in determining whether the arbitrator's award is supported by substantial evidence, we may not view the evidence supporting the award in isolation, but also must consider whatever in the record detracts from that evidence. It is to the balance of the record that we now turn. B. Other Evidence 47 Testimony of petitioner and Mr. Tabaka establishes that petitioner did not know until 9:30 a.m. on April 4, 1991, that he was to receive a random drug test. The only evidence in the record concerning petitioner's movements and whereabouts during the period between 9:30 and approximately 11:00, when petitioner volunteered to give his sample, is petitioner's unchallenged testimony. Petitioner testified that, after being told about the random drug test, he continued at work until approximately 11:00, at which time he went to the lunchroom, and from there to the testing area. There is, in the record, no counter version concerning petitioner's movements and whereabouts between 9:30 and 11:00 and no evidence that petitioner left the lunchroom or used the drinking fountain or sink near the lunchroom prior to entering the testing area. 48 We turn next to Mr. Zimmerman's collection of petitioner's sample. In view of the testimony of petitioner and Mr. Zimmerman, as well as the custody and control form, it is undisputed that (1) Mr. Zimmerman accompanied petitioner into the restroom, where he taped the water faucets in the sink and poured blue dye into the toilet; (2) the temperature strip attached to the sample collection cup revealed a temperature for petitioner's sample within the acceptable range of 90.5? --99.8? F; and (3) Mr. Zimmerman, who was expected to put a notation on the custody and control form if he observed a colorless sample, made no such notation and testified that the sample "looked okay" to him. 49 As seen in section II A above, the starting point for respondent's case is the evidence of Mr. Zimmerman's collection of petitioner's sample. In that regard, it goes without saying that a necessary premise of any conclusion that the arbitrator's award is supported by substantial evidence is the proposition that what Mr. Zimmerman received from petitioner was an altered or substituted specimen. Put another way, the sine qua non for the government's chain of evidence is the starting point of an altered or substituted specimen. If that starting point is not established, there is no case, let alone a case supported by substantial evidence. The evidence described above in this section is such that, in view of the record in this case, it renders inherently improbable the existence of the essential starting point for any determination that the arbitrator's award is supported by substantial evidence--receipt by Mr. Zimmerman of an altered or substituted specimen. 50 The evidence does so for two reasons. First, at the critical point, when petitioner provided his sample, there is no evidence of tampering, adulteration, or substitution. Indeed, the record establishes that Mr. Zimmerman undertook steps to make that impossible (pouring dye in the toilet, taping the faucets). Second, and most importantly, the fluid which petitioner presented to Mr. Zimmerman not only appeared "okay" to Mr. Zimmerman, but also tested within the proper temperature range. This second point, which the arbitrator did not discuss in his decision, is of particular significance. 51 In his affidavit, Dr. Hume stated that it would be "virtually impossible" for someone substituting water or other fluid to present it within the precise temperature range to enable it to pass for urine, because one would need to come to the test equipped with an "incredibly sophisticated" apparatus attached under his arm. Tab A15, Exhibit G at 3. There is no evidence that petitioner entered the testing area equipped with any kind of apparatus. At the same time, between 9:30 and 11:00, petitioner did not have the opportunity to obtain the kind of apparatus described by Dr. Hume. 52 In sum, the evidence of record concerning the events of April 4, 1991, is to the effect that (1) the sample petitioner gave Mr. Zimmerman was urine (color "okay" and a temperature reading within the range of 90.5? and 99.8? F) and (2) petitioner did not undertake the measures necessary to provide an altered or substituted specimen (no evidence that those measures were undertaken and evidence of lack of opportunity to undertake them, since petitioner had no chance between 9:30 and 11:00 to obtain and set up the kind of apparatus described by Dr. Hume and since Mr. Zimmerman taped the faucets of the sink and poured blue dye into the toilet). 53 The proposition that the arbitrator's award is supported by substantial evidence also depends upon respondent's chain of custody evidence. That evidence, in turn, rests largely on two premises: (1) that the seal on the specimen bottle was tamper proof; and (2) that the handling procedures used by CompuChem in transporting the specimen bottle were sufficient to impute to petitioner sole responsibility for the contents of the bottle. We do not find either of these premises to be supported by substantial evidence. Regarding the first premise, in the arbitrator's view, "the key point is that the collection bottle was sealed with the Grievant's signature thereon. These are tamper-proof seals." Award at 16. 54 Our review of the record has revealed two instances of testimony discussing the quality of the seal in question.Q. Mr. Zimmerman, I'd like to go back just a minute to when the bottle is sealed, and the sealing strip put across it. What happens if someone tries to remove that strip? What does it look like? What does it do? 55 A. Well, I really don't know. I haven't seen any removed, but it--it's supposed to be a tamper-proof seal, and being familiar with the police department, when you remove a tamper-proof seal, it just about destroys the whole seal. We've had them there quite similar, but it is a tamper-proof seal, and, you know, certainly if someone opens it or something, there surely should be some damage there to the seal. 56 Tr. at 123 (emphasis added). 57 Q. [To Dr. Brinkley] Does the seal on that bottle appear other than when it was cut, appear to be tampered with in any way? 58 A. No, the seal does not appear to be tampered with. 59 Q. What would you notice if the seal had been tampered with? 60 A. I believe this particular seal sort of comes apart, and you can't really put it back the way it was before. I'm not as familiar with this particular one from the D.O.T. as I am from the ones that we prepare. 61 Tr. at 173 (emphasis added). Thus, neither Mr. Zimmerman nor Dr. Brinkley could testify from personal knowledge concerning the seal. We find no other testimony or demonstration in the record to substantiate the quality of the seal. We are left with the impression that the arbitrator accepted as "fact" the agency's general assertion that the seal was tamper-proof. 62 The record, however, contains evidence which detracts from the testimony of Mr. Zimmerman and Dr. Brinkley supporting the arbitrator's conclusion regarding the tamper-proof nature of the seal. As already seen, at the hearing, a demonstration by Mr. Zimmerman produced a specimen bottle having a smooth, rather than a wrinkled seal, and petitioner testified that the seal he initialed on April 4 was not wrinkled. Yet, one of the photocopies of the specimen bottle shows a wrinkle on the seal next to petitioner's initials. In addition, Ms. Gasway testified that she had observed similar seals used to secure the shipping box being opened and replaced by a collector without breaking or destroying the seal. 63 As far as the second premise underlying respondent's evidence is concerned, the arbitrator acknowledged in his award that the chain of custody in the case was "not absolutely pristine...." Award at 15. He concluded, however, that the chain of custody had been proven "in all aspects by a preponderance of the evidence." Award at 16. 64 The arbitrator's award notes petitioner's testimony that Mr. Zimmerman failed to seal the shipping box in his presence and evidence that the previously smooth seal subsequently appeared wrinkled in the photocopies. The award also notes the fact that no one from Airborne Express signed for the receipt or transfer of the shipping bag containing petitioner's specimen bottle. 65 In addition, neither the testimony of Dr. Brinkley nor the custody and control form identifies the receiving clerk who made the critical observation regarding the color of the sample which was later tested and who made the decision to send the sample to the trouble room. As noted above, according to Mr. Moran of DOT, a clear sample should have been considered "unusual" and the fact of such a sample noted on the custody and control form. Mr. Zimmerman, a trained collector who observed petitioner's sample on April 4, made no such notation on the form and testified that the sample looked "okay" to him. Yet, the sample attributed to petitioner was immediately recognized as a problem by a receiving clerk at CompuChem the following day. Plainly, there is a discrepancy between Mr. Zimmerman's observation of the sample and that of the receiving clerk, whose skill and training the record does not disclose. 66 As far as the color of the sample is concerned, there are two possible explanations for the discrepancy between Mr. Zimmerman's observation and the apparent observation of the CompuChem receiving clerk. One explanation favors respondent; the other explanation favors petitioner. The explanation that favors respondent is that Mr. Zimmerman's observation of the sample's color in the restroom was not as careful as that of the receiving clerk at CompuChem and was inaccurate. The explanation that favors petitioner is that both Mr. Zimmerman and the receiving clerk made careful and accurate observations but that they were observing different samples. The arbitrator concluded that the discrepancy between the two observations should be resolved in favor of respondent. However, this conclusion is unsupported by substantial evidence, since Mr. Zimmerman testified that he used proper collection procedures which specifically required an observation of the sample's color and the unidentified receiving clerk did not testify at all. CONCLUSION 67 A petitioner who challenges the substantiality of the evidence supporting an arbitrator's award faces a heavy burden. In the unusual circumstances of this case, however, that burden has been carried. We "cannot consciously find that the evidence supporting the [arbitrator's award] is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [arbitrator's] view." Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464. As a result of the contradictory evidence in the record before us, the evidence supporting the arbitrator's award thins to the point that it must be considered insubstantial. Accordingly, the arbitrator's award is reversed and the case is remanded with instructions that petitioner's removal be cancelled; that petitioner be reinstated to his former position retroactive to the date of his removal; and that petitioner be awarded backpay and other relief to which he may be entitled as a result of this decision.4 68 Costs to petitioner. 69 REVERSED AND REMANDED. 1 In re Arbitration Between FAA, Dep't of Transp. and Professional Airways Sys. Specialists, Grievance No. PS-CE-91-054-STL-3 (May 14, 1992) ("Award") 2 The record in this case consists of the hearing transcript ("Tr.") and the eight exhibits listed on page 5 of the transcript as having been admitted in evidence. Joint Exhibit No. 2 is the "hearing submission document." It consists of 23 separately tabbed items, designated A1-A23. Tr. at 6. Citations to items in Joint Exhibit No. 2 are by tab numbers 3 In a proceeding before the Merit Systems Protection Board involving a removal action, the agency also is required to prove its case by a "preponderance of the evidence." 5 U.S.C. § 7701(c) (1988). "Preponderance of the evidence" is defined in 5 C.F.R. § 1201.56(c)(2) (1992) as Preponderance of the evidence. The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 4 In view of our decision, we do not address petitioner's contentions concerning the penalty imposed by the agency	{ "pile_set_name": "FreeLaw" }
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[Cite as In re K.P., 2017-Ohio-4227.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY IN THE MATTER OF: : K.P. : CASE NO. CA2017-02-003 : DECISION 6/12/2017 : : APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No.CA20163009 Richard W. Moyer, Clinton County Prosecuting Attorney, William C. Randolph, 1025 S. South Street, Wilmington, Ohio 45177, for appellee Rose & Dobyns Co., LPA, Blaise Underwood, 97 N. South Street, Wilmington, Ohio 45177, for appellant Marjorie Eads-Walker, c/o Clinton County Juvenile Court, 46 S. South Street, Wilmington, Ohio 45177, guardian ad litem Per Curiam. {¶1} This cause came on to be considered upon a notice of appeal, the transcript of the docket and journal entries, the transcript of proceedings and original papers from the Clinton County Court of Common Pleas, Juvenile Division, and upon the brief filed by appellant's counsel. Clinton CA2017-02-003 {¶2} Counsel for appellant, P.N., has filed a brief with this court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), which (1) indicates that a careful review of the record from the proceedings below fails to disclose any errors by the trial court prejudicial to the rights of appellant upon which an assignment of error may be predicated; (2) lists one potential error "that might arguably support the appeal," Anders, at 744, 87 S.Ct. at 1400; (3) requests that this court review the record independently to determine whether the proceedings are free from prejudicial error and without infringement of appellant's constitutional rights; (4) requests permission to withdraw as counsel for appellant on the basis that the appeal is wholly frivolous; and (5) certifies that a copy of both the brief and motion to withdraw have been served upon appellant. {¶3} Having allowed appellant sufficient time to respond, and no response having been received, we have accordingly examined the record and find no error prejudicial to appellant's rights in the proceedings in the trial court. The motion of counsel for appellant requesting to withdraw as counsel is granted, and this appeal is dismissed for the reason that it is wholly frivolous. S. POWELL, P.J., RINGLAND and M. POWELL, JJ., concur.	{ "pile_set_name": "FreeLaw" }
861 So.2d 1222 (2003) Robert W. RANKIN, Appellant, v. STATE of Florida, Appellee. No. 2D01-3990. District Court of Appeal of Florida, Second District. December 12, 2003. 1223 PER CURIAM. Robert W. Rankin challenges the trial court's order summarily denying his motion and amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to Rankin filing a facially sufficient claim under rule 3.850 regarding two of the four grounds that he asserted in his motions. The attachments to the trial court's order show that in trial court case number 97-9354, Rankin entered guilty pleas to aggravated battery of a law enforcement officer and aggravated assault on a law enforcement officer.[1] At the plea hearing, Rankin's counsel objected to the sentencing guidelines scoresheet, stating, "I do object to the score sheet as to the severity of victim injury of 40 points being assessed. I don't believe that would be able to be verified. I just want to make sure that is not waived at any further [sic] time." The trial court responded that Rankin would be able to litigate and discuss that issue, apparently at the time of sentencing, as long as he understood that it was an open plea. The sentencing hearing was postponed to allow Rankin an opportunity to provide substantial assistance to law enforcement. Rankin was represented by substitute counsel at the sentencing hearing, and according to Rankin's own statements, he was unable to provide substantial assistance to law enforcement. Rankin's counsel stated to the trial court that he had advised Rankin that he wanted to challenge the scoring of victim injury but could not do so because "[t]he scoresheet that was submitted at the time of Mr. Rankin's pleas was agreed to by counsel for Mr. Rankin at that time."[2] Counsel requested a downward departure on the basis that Rankin required specialized treatment for drug addiction and that he was amenable to such treatment. The State requested a guidelines prison sentence. In his rule 3.850 motion, Rankin alleged that substitute counsel was ineffective for failing to object to the incorrect scoring of forty victim injury points on the sentencing scoresheet. The trial court denied the claim, finding that substitute counsel's performance was not defective because "counsel did bring the aforementioned 40 points to the Court's attention, and explained on the record, the presence of Defendant [sic], as to why he could not contest the aforementioned points on the sentencing guidelines scoresheet." The trial court found that because substitute counsel's performance was not deficient, it need not address the prejudice component of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court's reasoning was erroneous because at the plea hearing, Rankin's original counsel specifically objected to the scoring of victim injury points and the trial court agreed that the issue would be litigated and discussed at the sentencing hearing. Additionally, substitute counsel was incorrect in stating that Rankin's prior counsel had agreed to the scoresheet. Although the trial court's analysis was incorrect, we must affirm the denial of relief on this ground because Rankin failed 1224 to state a facially sufficient claim of ineffectiveness of substitute counsel. A claim that a plea was involuntarily entered based on trial counsel's failure to object to an inaccurate scoresheet is a cognizable rule 3.850 claim. See Herman v. State, 795 So.2d 1000 (Fla. 2d DCA 2001). However, a defendant raising such a claim must allege that he would not have entered his plea had he been aware of the correct guidelines sentencing range. See Kleppinger v. State, 760 So.2d 1045, 1046 (Fla. 2d DCA 2000) (citing Skidmore v. State, 688 So.2d 1014 (Fla. 3d DCA 1997)); Smith v. State, 741 So.2d 579, 580 (Fla. 3d DCA 1999). Because Rankin failed to allege that he would not have entered his pleas had he been aware of the correct sentencing range, his claim is facially insufficient. We note that Rankin may have a valid claim that his plea was involuntarily entered because he entered it in the mistaken belief that counsel would challenge the scoring of victim injury at the time of the sentencing hearing. However, where a defendant claims that his plea was involuntarily entered based on a mistake or based on misinformation, he must still allege "that he would not have entered the plea had he been given the correct information." Days v. State, 637 So.2d 66, 66 (Fla. 1st DCA 1994); see also State v. Taylor, 738 So.2d 988, 989 (Fla. 2d DCA 1999). Rankin, if he is able, may present this claim in a subsequent motion. Rankin also alleged that trial counsel was ineffective for failing to object that five convictions for possession of cocaine were scored as "additional and/or prior convictions" on the sentencing guidelines scoresheet when he only had four such convictions. The trial court denied the claim, finding that only two convictions for possession of cocaine were scored in the "prior record" section of the sentencing guidelines scoresheet. The trial court, however, failed to take note that three convictions for possession of cocaine were scored in the "additional offenses" section of the scoresheet. Again, because Rankin did not allege that he would not have entered his pleas had he been aware of the correct sentencing guidelines range, we affirm the order denying relief. See Kleppinger, 760 So.2d at 1046. We also note that this claim was insufficient because Rankin did not allege that counsel knew or should have known of the errors. See Richie v. State, 777 So.2d 977 (Fla. 2d DCA 1999). Accordingly, we affirm the trial court's order without prejudice to any right Rankin might have to file a facially sufficient motion raising the grounds for relief discussed above. Such a motion shall not be considered successive. See Herman, 795 So.2d at 1001. We affirm without discussion the denial of relief as to Rankin's other claims. Affirmed. SALCINES, STRINGER, and SILBERMAN, JJ., Concur. NOTES [1] It appears from the copy of the sentencing guidelines scoresheet attached to the trial court's order that Rankin simultaneously entered pleas in at least four other trial court cases. [2] We note that the prosecutor who attended the sentencing hearing was not the same prosecutor who had attended the plea hearing.	{ "pile_set_name": "FreeLaw" }
989 F.2d 864 Prod.Liab.Rep. (CCH) P 13,526Helen LOCKART, et al., Plaintiffs,Helen Lockart and Howard Glen Sullivan, Plaintiffs-Appellants,andTransportation Insurance Co., Intervenor-Appellant,v.KOBE STEEL LTD. CONSTRUCTION MACHINERY DIV., et al., Defendants,Kobelco America, Inc., Defendant-Appellee.Howard Glen SULLIVAN, et al., Plaintiffs,Howard Glen Sullivan, Plaintiff-Appellant,v.KOBE STEEL LTD. CONSTRUCTION MACHINERY DIVISION, et al., Defendants,Kobelco America, Inc., Defendant-Appellee. No. 92-4437. United States Court of Appeals,Fifth Circuit. May 6, 1993. Travis M. Holley, Bastrop, LA, for Lockart and Sullivan. Thomas M. Hayes, III, Hayes, Harkey, Smith, Monroe, LA, for Transportation Ins. Michael T. Pulaski, Keith W. McDaniel, Pulaski, Gieger & LaBorde, New Orleans, LA, for appellee. Appeal from the United States District Court for the Western District of Louisiana. Before WISDOM, JOLLY, and DEMOSS, Circuit Judges. WISDOM, Circuit Judge: 1 This case involves an interpretation of the revised Louisiana Products Liability Act (LPLA), R.S. 9:2800.51 et seq. and in particular the meaning of "reasonably anticipated use" in 9:2800.54. 2 The district judge granted the defendant's motion for summary judgment. We AFFIRM. I. 3 On March 19, 1990, Howard Sullivan and Jerry Dixon, both employed by Louisiana Industries, Inc. at its Perryville site, attempted to repair the bottom of a steel pontoon. They used a Kobelco hydraulic excavator to suspend the pontoon, while they worked beneath it. They rigged this by looping a chain around the teeth of the excavator's bucket1, and the pontoon was suspended from this chain. Unfortunately, the chain slipped off the bucket, and the pontoon fell on the men, killing Dixon and injuring Sullivan. 4 Sullivan and his wife and Dixon's mother filed separate suits in state court against Kobelco and Louisiana Industries and its insurer under the Louisiana Products Liability Act2. The actions were removed and consolidated, and Louisiana Industries and its insurer were dismissed without opposition. The insurer subsequently intervened to collect workers compensation benefits paid to or on behalf of Dixon and Sullivan. Kobelco sought summary judgment on the product liability claims which was granted on February 20, 1992. This appeal followed. II. 5 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.3 We review a grant of summary judgment de novo and may affirm "regardless of the correctness of the district court's rulings, when we find in the record an adequate, independent basis for that result"4. III. 6 The plaintiffs raise two issues in this appeal. They argue that the district court erred in interpreting the Products Liability Act, in particular the meaning of "reasonably anticipated use". They also contend that the defendant did not meet its burden of proof that the plaintiff's use of the product was not reasonably anticipated. A. Interpreting the Products Liability Act 7 The relevant section of the Products Liability Act is La.R.S. 9:2800.54 which provides:A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity. 8 B. A product is unreasonably dangerous if and only if: 9 (1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55; 10 (2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56; 11 (3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; 12 (4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58. 13 C. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.55 must exist at the time the product left the control of its manufacturer. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or R.S. 9:2800.57 must exist at the time the product left the control of its manufacturer or result from a reasonably anticipated alteration or modification of the product. 14 D. The claimant has the burden of proving the elements of Subsections A, B and C of this Section. 15 The defendants suggest that this section creates a two-step inquiry. One need reach the question of whether the product is unreasonably dangerous only if the use is reasonably anticipated. In this case, however, since we hold that the use was not reasonably anticipated because under the circumstances an adequate warning was provided, our analysis extends to the warning. 16 In the operators manual, as is seen in the diagram below, item number 17 states: "Never lift a load from the bucket teeth". An illustration of a load being lifted by the bucket teeth with an "X" through the diagram is directly underneath this warning. This warning is unequivocal. The plaintiffs assert therefore that it must be a reasonably anticipated use because Kobelco specifically warned against it. In other words, Kobelco is to be hoist by its own petard. 17 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE The plaintiffs, however, have incorrectly interpreted the term "reasonably anticipated use". Reasonably anticipated use is defined in R.S. 9:2800.53(7) as "a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances". The Louisiana Appellate Court has recently held in Daigle v. Audi of America that "this definition is narrower in scope than its pre-LPLA counterpart, 'normal use', which included all reasonably foreseeable uses and misuses of the product"5. This more restrictive scope of liability was to avoid prior confusion and because virtually any conceivable use is foreseeable.6 For example, using a soft drink bottle as a hammer or attempting to drive an automobile across water are foreseeable but not reasonable.7 The standard is objective. Thus "reasonably anticipated use" refers to the uses the manufacturer "should reasonably expect of an ordinary consumer".8 When a manufacturer expressly warns against using the product in a certain way in clear and direct language accompanied by an easy to understand pictogram, it is expected that an ordinary consumer would not use the product in contravention of the express warning. Here, however, the owners manual and thus the warning probably never reached the ultimate users. In a case arising from Mississippi, this Court has held that in addition to a warning in a manual being inadequate because it was not clear, it was also inadequate because placing the warning in the manual as opposed to placing it on the product would not reasonably bring the warning to the attention of the users of the product.9 This result was based on an interpretation of § 388 Restatement (Second) of Torts. As an Erie court, however, we must rely on Louisiana law. In Broussard v. Continental Oil Co.10 , the Louisiana Appellate Court confronted this same problem. Broussard, an employee of Continental Oil, was injured when his power drill sparked a natural gas explosion, and the court inquired whether Black & Decker's warning in the owner's manual was sufficient or should Black & Decker have placed the warning on the drill itself. The court remarked that it must consider not only the warning relating to the injury that occurred here but the other warnings as well. In that case, at least ten warnings were deemed worthy of being placed on the drill itself. The court, assuming arguendo that only ten were necessary, noted several deficiencies in any scheme for putting them all on the drill. "As a practical matter, the effect of putting at least ten warnings on the drill would decrease the effectiveness of all of the warnings. A consumer would have the tendency to read none of the warnings if the surface of the drill became cluttered with the warnings ... we fear that an effort to tell all about each hazard is not practical either from a point of view of availability of space or of effectiveness."11 Although this case appeared before the revisions to the LPLA, "[The definition of adequate warning] was not intended to and does not change prior Louisiana law."12 With regard to the excavator in this case, there are many warnings which are as worthy of display as the admonition not to lift a load from the bucket teeth. The preceding warning for example instructs the operator what to do in the event that the excavator comes into contact with live power lines. This warning to remain in one's seat if at all possible is at least as important as the bucket teeth one. With a piece of machinery as complex as an excavator, there are numerous warnings which might seem to be required to be placed on the equipment, but as the Broussard court stated, it is simply impractical to place all these on the product rather than in a manual. Further even if the warning had been placed on the bucket scoop, it would have made no difference in this case, because the original scoop made by Kobelco was replaced with a scoop made by another manufacturer. This would be a different case if the plaintiffs had presented evidence that despite the warnings, Kobelco should have been aware that operators were using the excavator in contravention of certain warnings. No evidence suggests such a scenario. Even if the warning did not reach the users, the LPLA speaks of "an ordinary person in same or similar circumstances".13 These users had many years experience mining and working with heavy machinery, and both had taken company courses in equipment handling in 1986. The dangers of using the bucket to suspend a heavy pontoon should have been obvious to the ordinary consumer and certainly to experienced workers. The district court, therefore, did not err in granting a summary judgment based on its holding that Dixon and Sullivan's use of the excavator to suspend the pontoon was not a reasonably anticipated use within the meaning of the Louisiana Products Liability Act. B. The Burden of Proof Judge Rubin in one of his last opinions and in a products liability context in which the grant of summary judgment for the defendant was affirmed set forth the rules governing the burden of proof: The moving party bears the burden of establishing that there are no genuine issues of material fact ... if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, [the moving party may] merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Once the moving party makes that showing, however, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. The nonmoving party cannot discharge that burden by referring to the 'mere allegations or denials' of the nonmoving party's pleadings; rather, that party must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing that a genuine issue exists.14 The LPLA is clear: the plaintiffs bear the burden of proving at trial that their use was a reasonably anticipated one. Kobelco argued in its motion for summary judgment that because of the warning and the obvious danger, this was not a reasonably anticipated use under the LPLA. The plaintiffs failed to set out specific facts in their motion in opposition to summary judgment. They provided no hard evidence that another warning would have been feasible or that these experienced workers should not have reasonably appreciated the risks involved in suspending the pontoon from the bucket teeth. Since the plaintiffs did not sustain their burden, summary judgment was appropriate. IV. While we acknowledge that summary judgment is not usually appropriate for a products liability case15, in this instance in which the manufacturer provided a clear warning, the product was handled by experienced users, and no hard evidence was offered to rebut these facts, we must AFFIRM the judgment of the district court. 1 The bucket was not the original bucket manufactured by Kobelco but was a replacement made by an unidentified manufacturer 2 La.R.S. 9:2800.51 3 Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) 4 Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989) 5 598 So.2d 1304, 1307 (La.App. 3d Cir.1992) 6 John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La.L.Rev. 565 (1989). John Kennedy, along with Prof. H. Alston Johnson III, drafted the Act 7 Kennedy at 586 8 Id 9 Gordon v. Niagara Machine & Tool Works, 574 F.2d 1182 (5th Cir.1978) 10 433 So.2d 354 (La.App. 3d Cir.1983) 11 Broussard at 358 12 Kennedy at 615 and n. 202-03. Kennedy cites Broussard in the footnote to the quoted sentence 13 See also R.S. 9:2800.57 B(2) which sets forth the standard for determining the adequacy of a warning: "The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic." 14 Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990) 15 Lavespere at 78. See also Fontenot v. Upjohn, 780 F.2d 1190, 1196 (5th Cir.1986)	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________ No. 01-30689 _________________________________ FRERET MARINE SUPPLY, Etc. Plaintiff v. ENCHANTED CAPRI MV, Etc, Defendants v. KENNEDY FUNDING INC, Co-Agent for Cordell Funding LLLP, Ashton Global Enterprises Inc, Coastal Funding Inc, JCW Funding Inc, KSK Funding Inc, Lexis Funding Inc & Pillar Funding LLC; CORDELL FUNDING LLLP, Co-Agent for Cordell Funding LLLP, Ashton Global Enterprises Inc, Coastal Funding Inc, JCW Funding Inc, Lexis Funding Inc & Pillar Funding LLC Intervenor Plaintiffs–Appellees v. WINCHESTER NAVIGATION LIMITED Movant–Appellant --------------------------------- Appeal from the United States District Court for the Eastern District of Louisiana, New Orleans 01-CV-87 --------------------------------- May 31, 2002 Before SMITH, BENAVIDES, and PARKER, Circuit Judges. PER CURIAM:* Appellant Winchester Navigation, Ltd. (“Winchester”) claims that it is the rightful owner of a cruise ship, the M/V ENCHANTED CAPRI, that was purchased at a judicial sale by Appellee Kennedy Funding, Inc. (“Kennedy”), who leads a group of several lenders that intervened at the district court to protect their mortgage interest. Winchester alleges that the district court violated its procedural and substantive due process rights by not providing it with actual notice of the sale. Furthermore, it contends that the sale price was grossly inadequate and that the sale should be set aside for that reason. Winchester also argues that the district court should return the $46,500 charge it assessed Winchester for costs resulting from its opposition to the sale. Finally, it seeks equitable relief in the form of an order requiring Kennedy to deposit all proceeds from a future private sale into the registry of the district court until all ownership and mortgage issues, which are still being litigated at the district court, are resolved. The district court rejected Winchester’s opposition and confirmed the sale, and Winchester timely appealed. We review the district court’s confirmation of a judicial sale for abuse of discretion. Latvian Shipping Co. v. Baltic Shipping Co., 99 F.3d 690, 692 (5th Cir. 1996). An abuse of discretion will not be found unless the factual findings are clearly erroneous or incorrect legal standards were applied. Id. Having carefully reviewed the record and the applicable law, we find no merit in the arguments advanced by Winchester and conclude that the district court did not abuse its discretion when it confirmed the sale. We therefore AFFIRM the judgment of the district court and DENY all pending motions. * 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--	{ "pile_set_name": "FreeLaw" }
796 F.2d 1477 Griffinv.OWCP 85-7433 United States Court of Appeals,Eleventh Circuit. 7/11/86 1 N.D.Ala. AFFIRMED	{ "pile_set_name": "FreeLaw" }
543 U.S. 939 EBRONv.UNITED STATES. No. 04-6180. Supreme Court of United States. October 12, 2004. 1 Ct. App. D. C. Certiorari denied. Reported below: 838 A. 2d 1140.	{ "pile_set_name": "FreeLaw" }
942 So.2d 944 (2006) William REINER and Laura Reiner, Appellants, v. Curtis Wayne WRIGHT and Deena Lynn Wright, Appellees. No. 5D06-1084. District Court of Appeal of Florida, Fifth District. November 17, 2006. Gary E. Shader, Maitland, for Appellants. Samuel R. Filler, Longwood, for Appellees. 945 PLEUS, C.J. William and Laura Reiner ("Reiners") appeal a final judgment awarding custody of Ke.W., a child, to his natural father, Curtis Wright. The Reiners are the child's maternal aunt and uncle and had custody of the child for nine years pursuant to a final judgment of dissolution between the mother and father. After the father was released from prison, he petitioned for custody. Without conducting an evidentiary hearing, the trial court awarded custody to the father on the ground that the father had an "absolute right to the child." We reverse and remand for an evidentiary hearing to determine (1) whether the father is a fit parent; and (2) whether a transfer of custody to the father would be detrimental to the child. The mother and father were married in 1993 and had two children ("Ke.W." and "Ky.W."). This appeal involves the custody of the younger child, Ke.W., born in April 1996. In October 1996, the child began residing with his maternal aunt and uncle, the Reiners. The Reiners petitioned the court for temporary custody based on the parents' consent. The father's consent, dated in October 1997, stated in relevant part: That I agree that it is in the best interest of the child to remain with the Petitioners for a period of time not to exceed (42) calendar months. With the ability to terminate the Petition upon completion of my obligation to the State of Florida, and at which point I can provide a stable environment for the child. In November 1997, the father was sentenced to three years in prison for robbery. In February 1998, the court granted the Reiners temporary custody of the child pursuant to the parents' consent. In August 1999, the mother filed a petition for dissolution of marriage. In June, 2000, the court entered a final judgment of dissolution of marriage. As to custody of Ke.W., the final judgment stated: Because shared parental responsibility would be detrimental to the children, the Wife shall have sole parental responsibility and custody of [Ky.W.] and William and Laura Reiner, the maternal aunt and uncle, shall have sole parental responsibility of [Ke.W.] pursuant to the Order Granting Temporary Custody of Minor to Extended Family members, dated February 13, 1998, in case number 97-2897-DR-05-E. The court also ordered that "within 30 days of the Husband's release from [prison], a hearing shall be scheduled to determine the access and contact schedule for the minor children and the Husband [sic] is in the minor children's best interest." The husband did not appeal this judgment. After being released from prison, the father filed a motion for visitation. In 2002, the parties stipulated that the father could have supervised, and later, unsupervised visitation. The father then filed a petition for custody. In May 2005, the court entered an Order Determining Legal Standard for Trial on Custody Issue. The court ruled that the legal standard for trial on the custody issue would be (1) whether the father is a fit parent and (2) whether a transfer of custody to the father would be detrimental to the child. On the day of trial, however, the trial court stated that the Reiners had "absolutely no rights at all unless it is granted through the Dependency Court." Regarding the need for an evidentiary hearing, the father's attorney argued, "My client should not be punished to prove that he is fit at this point in time in a lawsuit that hasn't even been filed yet." When the Reiners' attorney asked to respond, the trial court stated, "No. I will find that the father is the parent of the child, at least 946 the one that's not incarcerated and that irrespective of his background, he has absolute right to the child. . . ." The Reiners filed a motion for rehearing in which they objected to not having an evidentiary hearing and to the trial court's applying the wrong legal standard in making its decision. The court denied this motion. On appeal, the Reiners argue that the standard should have been whether there had been a substantial change in circumstances and whether the change was in the child's best interest, not whether the father was a fit parent and whether the change in custody would be detrimental to the child. In Richardson v. Richardson, 766 So.2d 1036 (Fla.2000), the Florida Supreme Court reaffirmed its longstanding adherence to the rule of parental preference. Quoting from an earlier case, the court stated: When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child. When the custody dispute is between a natural parent and a third party, however, the test must include consideration of the right of a natural parent "to enjoy the custody, fellowship and companionship of his offspring. . . . This is a rule older than the common law itself." State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957). In Reeves we held that in such a circumstnace [sic], custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child. We explained what would constitute detriment to the child and approved a temporary grant of custody to the grandparents because of the father's temporary inability to care for the children after the mother's death. We cautioned, however, that the father would be entitled to custody once his ability to care for the children was established. Id. at 20-21. Richardson, 766 So.2d at 1039 (quoting In re Guardianship of D.A. McW., 460 So.2d 368 (Fla.1984)). In Davis v. Weinbaum, 843 So.2d 290 (Fla. 5th DCA 2003), the paternal grandparents appealed a modification order awarding custody to the natural mother. Similar to the Reiners' argument in the instant case, the grandparents in Davis argued that the trial court had erroneously applied the standard set forth in Richardson because their custody did not emanate from section 61.13(7), which Richardson held unconstitutional, but from a prior custody order. The grandparents argued that they were "custodial parents" by virtue of the prior custody order. This Court rejected the grandparents' argument and followed Richardson, holding the trial court had applied the correct legal standard, to wit: whether the mother was a fit parent and whether a transfer of custody would be detrimental to the child. Davis, 843 So.2d at 294. See also Ward v. Ward, 874 So.2d 634 (Fla. 3d DCA 2004) (noting that Richardson standard, not substantial change in circumstance/best interest standard, is to be applied in proceeding to modify custody between natural parent and third party). Accordingly, the Reiners' argument that the lower court should have applied the substantial change in circumstance/best interest standard is not correct. However, the standard applied by the lower court was not correct either. Although the court had previously entered an order stating that it intended to apply the Richardson standard, it did not apply it. Instead, at trial, the court found that the father had an "absolute right to the *947 child" and that the Reiners had "absolutely no rights at all." Pursuant to these findings, the court awarded the father custody. The record demonstrates that the trial court failed to conduct an evidentiary hearing before changing custody. The court should have conducted an evidentiary hearing in which the father had the burden to demonstrate that he was a fit parent and that changing custody from the Reiners to him was not detrimental to the child. Richardson; Ward. Detriment is something more than the normal trauma of uprooting a child from familiar surroundings. It is mental, physical or emotion harm of a lasting nature, transcending the normal adjustment period associated with such custody changes. Ward, 874 So.2d at 638. Further, the Reiners had standing to present evidence on these issues. See Sinclair v. Sinclair, 804 So.2d 589, 592 (Fla. 2d DCA 2002) (holding that grandparents had standing to intervene in custody dispute because they had actual physical custody of child for many years). Accordingly, we reverse and remand for a hearing to allow all parties to present evidence on this issues of whether the father is a fit parent and whether a change (or now, a continuation) in custody with the father would be detrimental to the child. The father should maintain custody of the child pending the outcome of such a hearing. REVERSED and REMANDED. GRIFFIN and ORFINGER, JJ., concur.	{ "pile_set_name": "FreeLaw" }
493 F.Supp.2d 291 (2007) THE FRONTIER GROUP, INC., Plaintiff, v. NORTHWEST DRAFTING & DESIGN, INC. et al., Defendants. No. 3:05CV01741(DJS). United States District Court, D. Connecticut. June 29, 2007. 292 293 294 David Lee Weiss, Cohen & Acampora, East Haven, CT, for Plaintiff. Charles F. Brower, Brower, Organschi & D'Andrea, LLP, Torrington, CT, for Defendants. MEMORANDUM OF DECISION AND ORDER SQUATRITO, District Judge. The Plaintiff, the Frontier Group, Inc. ("the Plaintiff'), commenced this action against Northwest Drafting & Design, Inc., Mark E. Robinson, Sr. ("Robinson"),[1] and Martial Grondin ("the Defendant") in the Connecticut Superior Court for the Judicial District of Litchfield at Litchfield. In the Complaint, the Plaintiff alleges that the Defendant violated the ownership rights the Plaintiff had in certain architectural plans, drawings and specifications ("the Plans") by converting those rights to his own benefit, to the exclusion of the Plaintiff. The Plaintiff also alleges that the Defendant's conversion and use of the Plans to construct a single family residence was a violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. §§ 42-110b et seq. ("CUTPA"). On November 14, 2005, the Defendant filed a Notice of Removal, in which the Defendant claimed that this court had original jurisdiction over this case because the Plaintiffs action is, in fact, a civil action for copyright infringement. (See dkt. # 1.) The Plaintiff subsequently moved to remand this case to the Connecticut Superior Court, maintaining that the Complaint set forth only state law claims, not federal copyright claims. (See dkt. # 10.) The Defendant opposed the motion to remand, maintaining that the Plaintiff's state law claims were preempted by federal copyright law. (See dkt. # 12.) The court, agreeing with the reasons set forth in the Defendant's opposition, denied the motion to remand. (See dkt. # 14.) Now pending is the Defendant's motion for summary judgment (dkt.# 19) pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, the Defendant's motion for summary judgment (dkt.# 19) is GRANTED. I. FACTS The background facts in this case are relatively brief. In March and April 2003, the Plaintiff prepared and created the Plans. Pursuant to a construction contract, dated April 15, 2003, between the Plaintiff and Wayne and Barbara Shields ("the Shields"), the Plans were to be used for the construction of a single family residence owned by the Shields and located at Lot 26, West Hyerdale Drive, Goshen, Connecticut ("the Property"). Under the terms of the construction contract, the Plaintiff retained all rights of ownership over the Plans, and all copies of the Plans were to be returned to the Plaintiff upon termination or completion of the construction of the Property. In June 2004, the Shields transferred ownership of the Property to the Defendant. At the time of this transfer, the Plaintiff had performed construction on the Property pursuant to the construction contract and in accordance with the Plans, including site work, grading, foundation excavation, and the pouring of concrete 295 footings and foundation walls. The Plaintiff claims that, in June or July 2004, the Defendant acquired possession of the Plans from the Shields without the consent or authorization of the Plaintiff; failed or refused to return the Plans to the Plaintiff; and used the Plans to prepare a new set of architectural plans for the purposes of obtaining a building permit and completing construction for a single family residence located in the area of the Property where the Plaintiff had already constructed the foundation and footings. According to the Plaintiff, the Defendant had actual notice of the Plaintiff's ownership interest in the Plans as set forth in the construction contract, yet nevertheless provided the Plans to Northwest Drafting & Design, Inc. for the purposes of preparing the new set of plans. In his affidavit, the Defendant admits that he did purchase the Property from the Shields. (See dkt. # 22 ¶ 2.) The Defendant asserts that, as an inducement for him to buy the lot, the Shields agreed to hire Robinson, a construction draftsman, to draw a set of plans that would comport with the footings already poured by the Plaintiff. (See id. ¶ 3.) The Defendant further states that he worked with Robinson to create a set of construction plans, which were used, with subsequent modifications, to construct a dwelling on the Property. (See id. ¶ 4.) In addition, the Defendant has submitted the affidavit of James Hiltz ("Hiltz"), who states that he acted as the real estate broker for the sale of the Property from the Shields to the Defendant. (See dkt. # 23 ¶ 2.) According to Hiltz, the Shields and the Plaintiff had a dispute over the construction on the Property, which resulted in the Shields' desire to sell the lot. (See id. ¶ 3.) Hiltz asserts that he was aware of the Plans created by the Plaintiff. (See id. ¶ 4.) Hiltz further asserts that after the Shields had agreed to sell the Property to the Defendant, he and Wayne Shields took the Defendant to meet Robinson, who was then shown the Plans. (See id. ¶ 5.) According to Hiltz, Robinson, although having seen the Plans, was asked to draw a new set of plans for the Defendant "so that [the Defendant] could build a house on the existing foundation and there would be no issue about [the Defendant] using [the Plans]." (See id.) II. DISCUSSION The Plaintiff alleges that the Defendant converted the Plaintiff's ownership and possession rights in the Plans, and that the Defendant violated CUTPA. The Defendant maintains that the Plaintiff's action is, in reality, a copyright infringement case, as the Plaintiff's claims are preempted by federal copyright law. The court denied the Plaintiffs motion to remand, which argued that the Plaintiffs claims are not copyright claims, but claims brought pursuant to Connecticut law. Nevertheless, the Plaintiff still argues that its claims are not preempted by federal law and that this is not a copyright case. The court shall first address the issue of preemption, and then whether the Defendant is entitled to judgment as a matter of law. A. SUMMARY JUDGMENT STANDARD A motion for summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate if, after discovery, the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect 296 to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute.'" Am. Int'l Group v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975)). A dispute concerning a material fact is genuine "`if evidence is such that a reasonable jury could return a verdict for the nonmoving party." Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The Court must view all inferences and ambiguities in a light most favorable to the nonmoving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Id. B. ANALYSIS Although the court denied the Plaintiff's motion to remand, which asserted that the Plaintiffs claims were not preempted by copyright law, the Plaintiff still argues that its claims are not preempted, and that Connecticut, not federal, law applies to this case. The court sees how the Plaintiff might have misunderstood the court's intended result in denying the motion to remand, as the court did not provide its own analysis, but rather adopted the reasoning of the Defendant. In order to clarify any ambiguities caused by the court's previous order, and in the interests of fairness and justice, the court shall set forth why the Plaintiffs claims are preempted by the Copyright Act. 1. Applicability of "Complete Preemption" Doctrine to the Copyright Act The Plaintiff, in both the memorandum in support of its motion to remand and the memorandum in opposition to summary judgment, asserts that, as it has alleged violations of Connecticut law only, the "well-pleaded complaint rule" saves its claims from being preempted by federal law. "The presence or absence of federal question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). "The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. "A case aris[es] under federal law . . . if a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law." Empire Healthchoice Assur., Inc. v. McVeigh, ___ U.S. ___, 126 S.Ct. 2121, 2131, 165 L.Ed.2d 131 (2006) (internal quotation marks omitted). "Generally, a complaint that pleads only state law causes of action may not be removed to federal court even where Congress has chosen to regulate the entire field of law in the area in question." Marcus v. AT & T Corp., 138 F.3d 46, 52 (2d Cir.1998). Thus, "[p]reemption does not necessarily confer jurisdiction, since it is generally a defense to plaintiffs suit and, as such, it does not appear on the face of a well-pleaded complaint." Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 304 (2d Cir. 2004) (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct:-1542, 95 L.Ed.2d 297 55 (1987)). "It is only when based on the doctrine of `complete preemption,' that the preemptive force of federal law is so `extraordinary' that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Id. (quoting Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425 (1987)). The Plaintiff first argues that the doctrine of "complete preemption" has not been found to apply to copyright law. The court disagrees. It is true, as the Plaintiff states in its opposition memorandum, that the Supreme Court had previously applied the doctrine of "complete preemption" to a narrow range of cases where Congress had "clearly manifested an intent to make specific action within a particular area removable." Id. (internal quotation marks omitted); see Metro. Life, 481 U.S. at 65-67, 107 S.Ct. 1542. As the Second Circuit points out, however, "[t]his analytical framework has been changed by [the Supreme Court's decision in Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8-11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003)]. . . ." Briarpatch, 373 F.3d at 304. The Second Circuit described Anderson as follows: The complaint in that case alleged state law usury claims against a national bank chartered under the National Bank Act. Section 85 of the National Bank Act, 12 U.S.C. § 85, specifies the substantive limits on the rates of interest that national banks may charge, while § 86 of the Act, 12 U.S.C. §.86, sets forth the elements, statute of limitations, and remedies for usury claims against national banks. In holding that the National Bank Act renders state law usury claims against national banks removable, the Supreme Court used these two sections to distinguish between normal preemption and, complete preemption. The Court noted that § 85, on its own, preempts state law claims against national banks for charging interest that is within the § 85 limits. Anderson, 539 U.S. at 9, 123 S.Ct. 2058. . . . Such preemption, however, is not complete, and thus would not create jurisdiction, because § 85 does not provide an exclusive federal cause of action. Id. Section 86, on the other hand, does provide an exclusive federal cause of action for usury claims against national banks and therefore does fall within the complete preemption doctrine so as to create federal jurisdiction. Id. at 9-10, 123 S.Ct. 2058. . . . In so holding, the Court was willing to overlook the fact that § 86 was promulgated in 1864, before removal to federal courts was even possible. It ruled that "the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable." Id. at 9 n. 5, 123 S.Ct. 2058. . . . Id. at 304-05. Given the language in Anderson, the Second Circuit has concluded that the Supreme Court "means to extend the complete preemption doctrine to any federal statute that both preempts state law and substitutes a federal remedy for that law, thereby creating an exclusive federal cause of action." Id. at 305. "The Copyright Act does just that. Like the National Bank Act in Anderson, the Copyright Act lays out the elements, statute of limitations, and remedies for copyright infringement. See 17 U.S.C. §§ 501-513 (2000). It therefore follows that the district courts have jurisdiction over state law claims preempted by the Copyright Act." Id. 2. Applicability of the Copyright Act to the Plaintiffs Claims "The Copyright Act exclusively governs a claim when: (1) the particular 298 work to which the claim is being applied falls within the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and 103, and (2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106." Id. "The first prong of this test is called the `subject matter requirement,' and the second prong is called the `general scope requirement'" Id. "The subject matter requirement is satisfied if the claim applies to a work of authorship fixed in a tangible medium of expression and falling within the ambit of one of the categories of copyrightable works." Id. Under the Copyright Act, "[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). Included in the works of authorship protected by the Copyright act are "architectural works." Id. § 102(a)(8). "A work need not consist entirely of copyrightable material in order to meet the subject matter requirement, but instead need only fit into one of the copyrightable categories in a broad sense." Briarpatch, 373 F.3d at 305. "The general scope requirement is satisfied only when the state-created right may be abridged by an act that would, by itself, infringe one of the exclusive rights provided by federal copyright law." Id. "In other words, the state law claim must involve acts of reproduction, adaptation, performance, distribution or display." Id. In addition, "the state law claim must not include any extra elements that make it qualitatively different from a copyright infringement claim." Id. To determine whether a state law claim is "qualitatively different" from a copyright claim, the court must "look at what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced." Id. at 306 (internal quotation marks omitted). The Second Circuit takes "a restrictive view of what extra elements transform an otherwise equivalent claim into one that is qualitatively different from a copyright infringement claim." Id. "Awareness or intent, for instance, are not extra elements that make a state law claim qualitatively different. . . . On the other hand, a state law claim is qualitatively different if it requires such elements as breach of fiduciary duty . . . or possession and control of chattels. . . ." Id. a. Conversion First, the court finds that the Plans of the Plaintiff satisfy the first prong of the preemption test, the "subject matter requirement." The Plans, as architectural plans, drawings, and specifications, are works of authorship, fixed in a tangible medium of expression, that fall within the ambit of at least one of the categories of copyrightable works under the Copyright Act. See 17 U.S.C. § 102(a)(8) ("architectural works"). Second, the court finds that the second prong of the test, the "general scope requirement," is satisfied here. The Plaintiffs first claim is that the Defendant committed the tort of conversion. As stated by the Connecticut Supreme Court, "[t]he tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745, 770; 905 A.2d 623 (2006) (internal quotation marks omitted). "Thus, [c]onversion is some unauthorized 299 act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm." Id. (internal quotation marks omitted). "The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." Id. (internal quotation marks omitted). In the court's estimation, the Plaintiff's claim is not a conversion claim. Although the Plaintiff uses the term "conversion" in the Complaint and asserts that this is an action for conversion under Connecticut law, the use of the word "conversion" is not, by itself, enough for the Plaintiffs claim to actually sound in conversion. In addition, although the Plaintiff's opposition memorandum references the "wrongful withholding" of the Plans, the Plaintiff's Complaint does not seek the return of the Plans. Instead, the Complaint reads that the Plaintiff "has been injured and damaged by having expended substantial time and expense in producing the Plans and has not been compensated for same by Defendant[] despite the Defendant[s] utilization of same," (see dkt. # 1, Complaint ¶ 10), and asks that the court award only money damages, (see id. p. 3). It is clear from the Complaint, then, that the Plaintiff alleges acts of reproduction, or otherwise wrongful usage, of the Plans. This conduct constitutes infringement of the exclusive rights provided by federal copyright law, which preempts a conversion claim based on such conduct. The issue, then, is whether the Plaintiffs conversion claim includes "extra elements" that make the claim qualitatively different from a copyright infringement claim. If the Plaintiffs conversion claim is based solely ion, the Defendant's alleged reproduction (or other use) of the Plans, the claim contains no "extra elements" and therefore is preempted by copyright law. See A Slice of Pie. Prods., LLC v. Wayans Bros. Entm't, 392 F.Supp.2d 297, 317 (D.Conn.2005) ("a viable conversion claim would be preempted by the Copyright Act [if] it is based solely on copying, i.e. wrongful use, not wrongful possession."); Moser Pilon Nelson Architects, LLC v. HNTB Corp., No. 05 CV 422(MRK), 2006 WL 2331013, at 12 (D.Conn. Aug.8, 2006). On the other hand, if the Plaintiff's claim is based on the wrongful physical possession of chattels (i.e., the Plans), it alleges "extra elements" and avoids preemption. See A Slice of Pie, 392 F.Supp.2d at 317 n. 8; see also Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 201 (2d Cir. 1983), reed on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). In looking at the plaintiff's submissions, the court finds that the Plaintiff's conversion claim does not contain the "extra elements" necessary to avoid preemption. The Plaintiff has been careful to use the word "possession"; for example, in the Complaint, the Plaintiff maintains that the Defendant committed the tort of conversion "[b]y obtaining possession of, duplicating and utilizing the Plans without the consent or authorization of the Plaintiff . . ." (See dkt. # 1, Complaint ¶ 9.) When looking at the damages alleged and relief sought, however, the Plaintiff does not seek relief for the actual physical deprivation of the Plans, but for the subsequent actions taken with the Plans. That is, the Plaintiff states that it "has been injured and damaged by having expended substantial time and expenses in producing the Plans and has not been compensated for same by the Defendant[] despite the Defendant[']s utilization of same." (Id. ¶ 10.) This language indicates that the Plaintiff is not seeking the recovery of the physical copies of the Plans held by the Defendant, but rather damages for the 300 subsequent actions taken with the Plans by the Defendant. Therefore, the Plaintiff s conversion claim fails to meet the "extra element" test, and is thus preempted by the Copyright Act.[2] b. CUTPA The court must analyze the Plaintiff s CUTPA claim according to the same preemption principles used for the Plaintiffs conversion claim. "CUTPA, by its own terms, applies to a broad spectrum of commercial activity." Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995). CUTPA provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen.Stat. § 42-110b(a). With regard to establishing a CUTPA violation, the Connecticut Supreme Court has stated the following: It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005) (internal quotation marks omitted). Because the Plaintiffs CUTPA claim, like the conversion claim, involves the Plans created by the Plaintiff, the first prong of the preemption test (the "subject matter requirement") is satisfied here for the same reasons that it was satisfied for the conversion claim. See supra Part II. B.2.a. Thus, the court must determine whether the Plaintiffs CUTPA claim actually alleges the "extra elements" needed to avoid preemption. As the Second Circuit has noted, "unfair-competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets have been held to satisfy the extra-element test. . . ." Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir.1993). In addition, Illegally sufficient claims based on a theory of `passing off will also escape preemption." A Slice of Pie, 392 F.Supp.2d at 315 (citing Warner Bros., Inc. v. Am. Broad. Co., 720 F.2d 231, 247 (2d Cir.1983)).[3] On the other hand, the Copyright Act "preempts unfair competition and misappropriation claims grounded 301 solely in the copying of a plaintiff's protected expression." Kregos, 3 F.3d at 666. The Second Count of the Complaint reads as follows: Based upon the foregoing unfair and deceptive actions of the Defendant[] . . . in converting the Plans to [his] own use and benefit without the consent or authorization of the Plaintiff . . . and utilizing the Plans . . . to complete the construction of the single family residence on the Property, the Defendant[ ] ha[s] violated [CUTPA] . . . and the Plaintiff has suffered an ascertainable loss of money and property as a result thereof. (Dkt. # 1, Complaint ¶ 11.) The court notes that the Plaintiff does not allege that it had a confidential or fiduciary relationship with the Defendant, nor does the Plaintiff allege that the Defendant violated a trade secret. The wrongful (or, as the Plaintiff states, "unfair and deceptive") conduct alleged here is the same conduct that served as a basis for the Plaintiff's conversion claim the unauthorized copying and use of the Plans. Allegations of such conduct, without more, are governed by federal copyright law exclusively, regardless of the a plaintiffs attempts to sound a claim in state unfair trade practices law. The Plaintiff's CUTPA claim contains no element to qualitatively differentiate it from those areas protected by copyright. Consequently, the Plaintiff's CUTPA claim fails to meet the "extra element" test, and is thus preempted by the Copyright Act. 3. The Copyright Act's Preemptive Effect. Over the Plaintiffs Claims The court has concluded that both the Plaintiffs conversion claims and the Plaintiff s CUTPA claim are preempted by the Copyright Act because they sound in federal copyright law, and are, in fact, claims for copyright infringement. Now, a determination must be made as to how the Copyright Act's applicability to this case affects the Plaintiff's claims. "Under [the Copyright Act,] 17 U.S.C. § 411(a), `no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.'" Well-Made Toy Mfg. Corp. v. Goffa Intern., Corp., 354 F.3d 112, 115 (2d Cir.2003) (quoting 17 U.S.C. § 411(a)). "This registration requirement is jurisdictional." Id. In the Statement of Undisputed Facts section of the Report of Parties' Planning Meeting filed with the court, the Plaintiff admits that it does not have a copyright on the Plans. (See dkt. # 17.) Because the Plaintiff does not have a copyright on the Plans, it cannot sustain an action for copyright infringement, which is what the court has deemed this case to be. Consequently, the Defendant's motion for summary judgment is GRANTED. III. CONCLUSION For the foregoing reasons, the Defendant's motion for summary judgment (dkt.# 19) is GRANTED. Judgment in favor of Martial Grondin shall enter on all counts of the Plaintiffs Complaint. The Clerk of the Court shall close this file. SO ORDERED. NOTES [1] The Plaintiff's claims against Northwest Drafting & Design, Inc. and Mark E. Robinson, Sr. have been settled, leaving Martial Grondin as the only remaining defendant. [2] In a case with facts that are very similar to this case (where the plaintiff drew up architectural plans that were subsequently used by another person to build a house), the Connecticut Superior Court came to the same conclusion, i.e., that the plaintiff's conversion claim under Connecticut law was preempted by the Copyright Act because the claim did not seek relief for the actual physical deprivation of the architectural plans, but for the subsequent actions taken with those plans. See R.D. Wolf Inc. v. Brancard, No. CV010507650S, 2004 WL 728936, at 3-5 (Conn.Super.Ct. March 8, 2004). [3] As the Supreme Court has stated, "[p]assing off (or palming off, as it is sometimes called) occurs when a producer misrepresents his own goods or services as someone else's." Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 27 n. 1, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003).	{ "pile_set_name": "FreeLaw" }
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 15-1852 ______________ UNITED STATES OF AMERICA v. DEMETRIUS BROWN, Appellant ______________ On Appeal from the United States District Court for the District of Delaware (D.C. Crim. No. 1-06-cr-00013-001) Honorable Leonard P. Stark, District Judge ______________ Submitted under Third Circuit LAR 34.1(a) December 11, 2015 BEFORE: FUENTES, CHAGARES, and GREENBERG, Circuit Judges (Filed: December 14, 2015) ______________ OPINION* ______________ GREENBERG, Circuit Judge. ____________________ *This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. This matter comes on before this Court on Demetrius Brown’s appeal from a 21- month custodial sentence that the District Court imposed in a judgment entered on April 6, 2015, because Brown violated the conditions of a term of supervised release earlier imposed on another conviction. Brown does not contend that he did not violate the conditions of supervised release and limits his appeal to challenging the use of sentencing guidelines calculations that he argues led to the 21-month sentence. Although Brown’s involvement with the criminal justice system has been more extensive, we set out his criminal history relating only to the events directly leading to the issues on this appeal. In 2008 Brown pleaded guilty to a count charging him with possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The District Court sentenced him to a custodial term of 96 months to be followed by a term of supervised release. Brown did not appeal from this sentence but on January 19, 2012, the Court reduced the custodial sentence to a term of 92 months to reflect retroactive changes in the sentencing guidelines. See United States v. Brown, 538 F. App’x 217, 218 (3d Cir. 2013).1 After Brown completed his reduced custodial term, he began serving his term of supervised release. Brown, however, violated the conditions of supervised release leading the District Court on December 6, 2012, on the probation office’s petition, to revoke the previously entered term of supervised release and to resentence Brown to a 1 We note that in the above opinion we indicated that the District Court imposed a six- year term of supervised release as reflected in the Court’s docket sheets, Brown, 538 F. App’x at 218, but the government in its brief indicates that the term was five years. Appellee’s br. at 1-2. The difference is not material to our disposition of this case. 2 custodial term of 12 months to be followed by another term of supervised release. Brown appealed but we affirmed. Brown, 538 F. App’x at 221. On November 27, 2013, Brown was released, but a Delaware state grand jury subsequently returned two indictments against him for charges that we believe are unrelated to those with which we are concerned. Apparently as a result of these indictments, Brown absconded and did not comply with the conditions of his supervised release. Consequently, on January 22, 2015, the probation office filed another petition for revocation of Brown’s supervised release predicated on his failure to report, failure to attend the probation office’s workplace development program, and failure to notify that office of a change of his address. The District Court issued a warrant for his arrest which was executed in South Carolina on February 11, 2015. At a hearing on April 1, 2015, Brown did not contest the charge that he had violated the conditions of supervised release and the District Court sentenced him to a 21-month custodial term but without a term of supervised release to follow. Brown then appealed again. We start our analysis of this appeal by referring to a memorandum dated March 27, 2015, prepared by a probation officer setting forth the sentencing options that the District Court would have at the ensuing revocation hearing. In the memorandum, the probation officer indicated, in a statement that neither party challenges, that if the Court followed the Sentencing Commission’s non-binding policy statements and if the Court found Brown guilty of violating the conditions of supervised release, the U.S.S.G. § 7B1.4 Revocation Table called for a term of at least eight months but no more than 14 months. 3 In his memorandum the probation officer described Brown’s extensive contacts with the police and the criminal justice system and pointed out that there were two active criminal warrants outstanding against him.2 The officer included the following footnote in his memorandum: According to the Designation and Computation Center, Mr. Brown will get credit for the time spent in state custody (8 months, 10 days or 254 days) even though it is unrelated to the violation and the pretrial detention occurred before the conduct which led to the violation. If a former federal inmate returns to federal custody, any time spent in pretrial detention after the discharge from federal prison (in any jurisdiction), which is not applied toward a conviction will be applied to a new term of federal imprisonment. Mr. Brown will also receive credit for the time spent [in] detention since February 11, 2015 to April 1, 2015 (1 month, 22 days or 50 days). In addition, Mr. Brown will earn good time credit for any sentence which exceeds 365 days. Due to the aggregate of the credit time and good time, the recommended term of imprisonment below will effectively become an 11-month sentence from the date of sentencing. Based on the Designation and Computation Center’s preliminary calculations, Mr. Brown’s projected release date would be March 1, 2016, if he earns all of the good time credit. The officer also indicated that he had hoped that following Brown’s release from Delaware state custody in December 2014, Brown would make good on a statement that he had made at an earlier hearing that he had learned his lesson, but that by absconding from supervision Brown had proven that he had not done so. The officer recommended that if the District Court found Brown guilty “that the term of supervision be revoked and that he be sentenced to serve 24 months in prison.” The officer also concluded that inasmuch as Brown consistently had demonstrated that he was not amenable to the 2 Many of these contacts resulted in charges that were dismissed. 4 conditions of supervised release and there were two active criminal cases pending against him, that the Court not impose an additional term of supervised release.3 The parties, through their attorneys, presented their cases to the District Court on April 1, 2015. Notwithstanding the probation officer’s recommendation, the Court, as we have set forth, imposed a 21-month custodial term but, in accordance with the probation officer’s recommendation, it did not impose a term of supervised release. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Brown contends that, based on the probation officer’s calculation of anticipated credits, the District Court made an upward variance which we should review on a plenary basis. See United States v. Thornhill, 759 F.3d 299, 307 n.9 (3d Cir. 2014). In his brief Brown does not challenge what he contends was the District Court’s upward variance effectively enhancing his sentence range to account for the time spent in state custody. He does, however, challenge what he contends was an upward variance of one month and 22 days in federal detention awaiting the supervised release revocation hearing. First, he claims that a variance on that ground did not further the sentencing issues identified at 18 U.S.C. § 3553(a)(2). Second, he argues that a variance to account for credit against the length of the sentence for the time a defendant spends in “official detention resulting from the federal probation or supervised release warrant violation or proceeding” violates a policy statement at U.S.S.G. § 7B1.3(e). He also argues that a 3 According to Brown’s attorney statement at the April 1, 2015 hearing, the charges were for drugs and reckless endangerment. App. at 34. 5 variance to account for potential good time credits does not further the sentencing interests in 18 U.S.C. § 3553(a)(2). Appellant’s br. at 13. The District Court explained the reason for imposing this 21-month sentence as follows: Well, having considered the record here and the arguments today, while I’m not going to upwardly vary to the full extent that the Government requests, I am going to upwardly vary. I do think that that is warranted under the totality of the circumstances. I think were I to fail to upwardly vary my sentence would not accomplish the purposes of sentencing which in this context includes promoting respect for the efforts of the Federal Courts to supervise somebody on supervised release. The supervised release term is not again just a formality, it is part of the sentence. The length of supervised release, the conditions of supervised release, those are all things that the Court and the Probation Office working with it work hard to carefully tailor so that we can have the best chance to help rehabilitate an individual coming out of prison so that they can be reintegrated into society in a productive way. So under the circumstances, I will, and do hereby, impose a sentence of 21 months. If I understand the calculation correctly, that means the defendant will serve approximately eight months solely for purposes of having violated the terms of his supervised release, and I think that that is warranted. It happens to be a sentence that effectively comes out at the bottom of the advisory guideline range. App. at 41-42. It is certainly true that the District Court in imposing the sentence on Brown intended to vary upwards from the range calculated under the sentencing guidelines. But the Court did not do so on the basis of recalculations under the guidelines. Rather, as the Court explained, it varied by reason of “the totality of the circumstances” because if it failed to do so it “would not accomplish the purposes of sentencing which in this context includes promoting respect for the efforts of the Federal Courts to supervise somebody on 6 supervised release.” App. at 41. Thus, the Court imposed a sentence with a custodial term of a length that it thought Brown should serve. Our examination of Brown’s history makes it clear that the District Court did not abuse its discretion in imposing the sentence, a result that we would reach even if, as Brown requests, we exercised plenary review on this appeal. The judgment of April 6, 2015, will be affirmed. 7	{ "pile_set_name": "FreeLaw" }
226 S.W.3d 96 (2007) COMMONWEALTH of Kentucky, Appellant, v. Charles BUSSELL, Appellee. No. 2006-SC-000001-MR. Supreme Court of Kentucky. June 21, 2007. 98 Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Assistant Attorney General, Frankfort, Counsel for Appellant. Susan J. Martin, Assistant Public Advocate, Owensboro, David Hare Harshaw, III, Assistant Public Advocate, LaGrange, Theodore S. Shouse, Assistant Public Advocate, Shepherdsville, Counsel for Appellee. OPINION OF THE COURT The Commonwealth of Kentucky appeals from an order of the Christian Circuit 99 Court vacating Appellee's, Charles Bussell's, death sentence and granting him a new trial. This case has been before this Court on several previous occasions, and thus a detailed discussion of the facts is unnecessary, except as is necessary to articulate the issues on this appeal. In 1991, Bussell was convicted of the December 1, 1990, robbery and murder of Sue Lail. He was sentenced to death and his conviction and sentence were affirmed upon direct appeal to this Court.[1] Thereafter, we rejected Bussell's attempts[2] to delay the filing of an RCr 11.42 motion in the face of the governor's death warrant.[3] And, in 2004, this Court denied the Commonwealth's petition for a writ of prohibition in Commonwealth v. Boteler.[4] The matter before us began on March 26, 1996, when Bussell moved the Christian Circuit Court for relief pursuant to RCr 11.42, alleging numerous Brady[5] violations and alleging ineffective assistance of counsel. Judge Charles Boteler was assigned as Special Judge. After various legal maneuvers, Judge Boteler granted an evidentiary hearing, which lasted nine days over the course of more than a year and which involved the testimony of sixty-four witnesses. On December 28, 2005, Judge Boteler granted Bussell a new trial. It is from this order that the Commonwealth appeals, arguing that the trial court committed several errors, viz., (1) that it erred in granting a new trial based on alleged Brady violations, and (2) that it erred in finding that Bussell was deprived of effective assistance of counsel during the penalty phase of his trial. I. Alleged Brady violations. As a reviewing court, on this RCr 11.42 appeal, we must defer to the findings of fact and determinations of witness credibility made by the trial judge.[6] Thus, unless the trial court's findings of fact are clearly erroneous, those findings must stand.[7] In Brady v. Maryland,[8] the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."[9] Under the Brady doctrine, evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have 100 been different."[10] This Court reviews de novo whether the particular material at issue falls under Brady.[11] A "reasonable probability" may be defined as "a probability sufficient to undermine confidence in the outcome."[12] The duty to disclose exculpatory evidence is applicable regardless of whether or not there has been a request by the accused,[13] and the duty to disclose encompasses impeachment as well as other exculpatory evidence.[14]Brady only applies to information "which had been known to the prosecution but unknown to the defense."[15] With these guidelines in mind, we will examine each argument propounded by Appellant, the Commonwealth, disputing the existence of Brady violations. In his RCr 11.42 motion, Bussell alleged that the Commonwealth failed to turn over to his trial counsel exculpatory evidence in violation of Brady. Specifically, Bussell claimed the Commonwealth failed to disclose numerous police reports in violation of Brady and the trial court's discovery order entered September 6, 1991. This order required the Commonwealth to disclose all police reports and statements of witnesses expected to testify. In its order granting Bussell a new trial, the circuit court found that the undisclosed police reports would have suggested the possibility of an alternate suspect in Mrs. Lail's death. Six of the nine police reports found to have been undisclosed to the defense were compiled by Detective Mary Martins of the Hopkinsville Police Department. The reports disclosed the following information: (1) report on December 4, 1990, that there were new pry marks on the outside and inner portions of the door leading to screen portion of Lail's home as well as a broken lock on the door, signs suggesting forced entry; (2) report on December 5, 1990, indicating a plaster cast of a tire print found in Lail's yard; (3) report on December 11, 1990, memorializing Martins' conversation with an employee of a gas company who saw Lail the day before she disappeared and indicating that Lail's gas bill was paid December 3, 1990, two days after she disappeared; (4) report on January 19, 1991, based on statements from a confidential informant, and suggesting two other possible suspects in Lail's death; (5) report on January 22, 1991, reflecting a conversation Martins had with Don Bilyeau, a store owner in the area, in which Bilyeau reported that the black male he had seen in the area of Lail's house on the day of her disappearance had just been in his store; and (6) report on February 24, 1991, reflecting a conversation Martins had with Brian Cunningham, an employee of a local radio station who advised Martins that he checked a transmitter daily near the place where Lail's body was found. The three remaining police reports discussed by the circuit court contained the following: (1) December 5, 1990, report that Lail had just had new carpet installed and, as a result, her front door would not 101 close, suggesting easy entry with minimal force; (2) December 8, 1990, report where Don Bilyeau stated that he saw a black male or someone other than Bussell walking up Lail's driveway or her neighbor's driveway at about 4:00 p.m. on or about the day Lail disappeared; and (3) January 3, 1991, report in which Christian County Sheriff's deputy Bobby Dale Williams stated that a confidential informant had reported seeing a red GMC pickup backed up to Lail's home between 11:00 p.m. and 11:30 p.m. near the night of December 1, 1990. At the RCr 11.42 hearing, the court heard testimony from circuit judge John Atkins, who at the time of Bussell's trial was the prosecutor who tried the case. The court also heard the testimony of Rob Embry, first-chair defense trial counsel, and Delissa Milburn, second-chair defense trial counsel. Judge Atkins testified that, after the passage of thirteen years, he had no specific recollection of whether the police failed to provide him with any particular items of discovery or exculpatory evidence during his prosecution of Bussell or whether he had failed to turn over any items of discovery or exculpatory evidence. Embry, a convicted felon by the time of Bussell's evidentiary hearing on his RCr 11.42 motion, testified that he did not remember seeing or receiving several of the police reports during his defense of Bussell. However, Milburn, who assisted Embry in Bussell's defense, testified that at least after the September 6, 1991, discovery order was entered, there was no violation of the discovery rules or the discovery order and that to her knowledge the defense had received "everything [they] had asked for" by the day the trial began on November 18, 1991. The Commonwealth contends that the trial court erred in accepting the testimony of a convicted felon, Embry, over that of Judge Atkins, and that the trial court completely disregarded Milburn's testimony on the matter. While the Commonwealth is correct that the burden is on the defendant to prove that evidence favorable to him was withheld and to show that there is a reasonable probability the result of the trial would have been different had the exculpatory evidence been disclosed to the defense,[16] we cannot agree that Judge Boteler erred in this case. We are ever mindful that the trial court is in the best position to determine the credibility of witnesses and this Court should not second-guess credibility determinations.[17] The circuit court found that the evidence presented at the RCr 11.42 hearing "clearly establishes that more likely than not these nine reports were never disclosed to [Bussell's] defense team." This finding is conclusive. Whether the evidence withheld was material and met the standard of reasonable probability of a different result at trial, we rely on Kyles v. Whitley[18] as follows: While the definition of Bagley[19] materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. . . . [T]he prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge 102 the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.[20] Under the totality of the circumstances as found by the trial court, we agree that those reports known to the prosecution and withheld for whatever reason were material to Bussell's guilt. Moreover, while not every police report discussed during the evidentiary hearing was exculpatory or was otherwise required to be disclosed, the cumulative effect of the information contained in those reports certainly suggests a reasonable probability that had the information been disclosed, the outcome of Bussell's trial would have been different. And, under the rationale set forth in Kyles, supra, the prosecutor in this case was under a concomitant "duty to learn of any favorable evidence known to . . . the police." Id. Furthermore, we disagree with the Commonwealth's assertion that "`alternative suspect' information is not exculpatory unless it eliminates the defendant as the culprit." In Beaty v. Commonwealth,[21] this Court held that "a defendant `has the right to introduce evidence that another person committed the offense with which he is charged,'" and that this right may be infringed only where the defense theory is unsupported or far-fetched, as this may confuse or mislead the jury.[22] Additionally, the test set forth in Brady requires only that the court find the undisclosed evidence to be material to the defendant's guilt or punishment.[23] Thus, exculpatory evidence must only meet the requirement established for "materiality"that is, there must be a "reasonable probability" that had the evidence been disclosed to the defendant, the outcome of the trial would have been different.[24] The court held that the undisclosed reports were material and that "the information contained in these reports are favorable to [Bussell] pursuant to Brady." Thus it concluded that the undisclosed reports undermined confidence in the outcome of the trial, denying Bussell's right to a fair trial. The court considered the reports as a collective pursuant to Kyles, supra, and found that the reports "could have been used to develop a rational defense, which [Bussell] failed to present in November of 1991." We perceive no error in the trial court's ruling with regard to its finding that a Brady violation occurred in Bussell's case, and we note that this ruling does not imply bad faith on the part of the Commonwealth in failing to disclose the reports.[25] Moreover, the Brady violation 103 in this case was compounded by the ineffective assistance of Bussell's trial counsel. II. Allegations of Ineffective assistance of counsel. The standard by which we measure ineffective assistance of counsel is found in Strickland v. Washington.[26] A claim of ineffective assistance of counsel requires a showing that counsel's performance "fell below an objective standard of reasonableness,"[27] and was so prejudicial that the defendant has been deprived "of a fair trial and reasonable result."[28] "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won."[29] Thus, Bussell must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[30] The "reasonable probability" standard of Strickland is the same "reasonable probability" standard used to prove a Brady violation, viz., a "probability sufficient to undermine confidence in the outcome."[31] However, the purpose of RCr 11.42 is not to provide an opportunity to conduct a fishing expedition for grievances, but rather to "provide a forum for known grievances."[32] There is "a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance."[33] As a reviewing court, we "must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance."[34] As a reviewing court, we must defer to the findings of fact and determinations of witness credibility made by the trial judge.[35] Moreover, in an RCr 11.42 proceeding, the movant has the burden of establishing that he was "deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding."[36] In Bussell's RCr 11.42 motion, he alleged that, during the guilt phase of his trial, Embry failed to investigate and interview prospective witnesses and that he failed to retain experts to refute scientific evidence proffered by the Commonwealth. Additionally, Bussell argued in his RCr 11.42 motion that defense counsel was ineffective during the penalty phase of the 104 trial because it put forth no mitigating evidence despite an alleged abundance of such evidence. Specifically, Bussell alleged that Embry failed to investigate and interview Kay Bobbett and Robert Joiner. Bussell argued that had Embry investigated Joiner, he would have discovered that Joiner was mentally limited; that he was routinely taken advantage of by neighbors and Bobbett; that he told at least three different versions of his story to Sgt. Over regarding the ring allegedly sold to him by Bussell; that his trial testimony directly contradicted his statements to the 911 operator and the police; that he had a bad reputation for truthfulness in the community; and, that he had told Bobbett the location of Lail's body before it was discovered. Bussell also argued that had Embry investigated Bobbett, he would have discovered that she took advantage of Joiner and also lied during her testimony that she had only received one other ring from Joiner when in fact she had received two other rings from him before being given the ring found to have been stolen from Lail. Bussell also alleged that Embry failed to offer the statement of the victim's daughter-in-law, Patty Lail, during the trial despite the fact that a copy of her statement was found in the case file. Patty Lail's statement directly contradicted testimony offered by her husband, Mrs. Lail's son Webb Lail, that Webb had seen the sapphire ring only a week before Lail disappeared. Patty, however, stated to police that Lail had not shown the ring to her or Webb at any time during the week before her disappearance. The RCr. 11.42 court commented that "[w]ith Patty Lail's statement coming to light, even had Bussell stolen the ring, a credible argument that the ring was not stolen when Mrs. Lail was killed could have been made. . . . It is disturbing and certainly pertinent to our inquiry that defense counsel had a key piece of evidence within his possession, but his investigation was so deficient he failed to review reasonably his own case file." Bussell further claimed that Embry failed to reasonably educate himself in the various forensic fields and thus his future decisions to retain experts in these fields was unreasonable. During Bussell's trial, the Commonwealth employed experts from the Kentucky State Police (KSP) Crime Lab to testify concerning tree bark found near Lail's body as well as on the damaged fender of Bussell's car, automobile paint found on the tree, and hair and fiber analysis of samples taken from Bussell's car and Lail's home. However, during the RCr 11.42 hearing, Bussell presented testimony from two experts in these same fields, Dr. Richard Saferstein and Dr. Terry Connors, which discredited that offered by the Commonwealth's experts. Doctor Saferstein, former Director of the New Jersey State Police Crime Lab, testified that the analysis of the paint evidence by the Commonwealth's expert Laurence King was "erroneous," was not "scientifically valid" and was a "false characterization" of the evidence. King had testified during Bussell's trial that the samples of paint from Bussell's car and from the damaged tree were identical regarding the top two layers of paint. The circuit court found that "Mr. King's ultimate conclusion was contradicted by the facts and by his own testimony." Doctor Saferstein also disagreed with the hair and fiber analysis conducted by Linda Winkle of the KSP Crime Lab. Of the four hairs found in Bussell's car that Winkle reported were "similar" to Lail's hair, Dr. Saferstein testified that three of the comparisons were not valid, finding that one was "not a valid comparison," that he "fervently disagreed" with Winkle's 105 comparison of another, and that the third was "of limited value" given the fact that it was white in color, making it inappropriate for comparison. Doctor Saferstein was unable to analyze the fourth hair because the Hopkinsville Police Department had lost the hair. Additionally, Dr. Saferstein found Winkle's approach to hair comparison "quite disturbing" and that there was no indication in Winkle's notes that a comparison microscope had been used, which in his opinion was a very basic notation he would have expected to see. In essence, Embry failed to consult an expert in this area and failed to request Winkle's bench notes detailing her analysis. Finally, Dr. Saferstein testified that the analysis of fibers found in Bussell's car and compared to fibers from the housecoat Lail was wearing when her body was discovered was "preliminary at best." Lonnie Henson of the KSP Crime Lab had testified that the fibers were the same. Saferstein disagreed, noting that Henson used a stereoscopic microscope to conduct the comparison and that this was the wrong type of microscope to use for fiber comparison, although Henson testified at Bussell's trial that he used a comparison microscope. Embry, however, failed to address this contradiction to limit Henson's credibility. Moreover, Dr. Saferstein's statement that Henson's comparison was preliminary was based on the fact that Henson did not conduct microspectrophotometry analysis of the fibers. Doctor Saferstein further testified that he could have rendered these same opinions in 1991. Doctor Terry Connors testified at the hearing as an expert in tree and wood identification and found that the samples were suitable for analysis, contrary to King's testimony on behalf of the Commonwealth at Bussell's trial. Doctor Connors further testified that he conducted the tests himself, using a method of analysis that has been generally accepted in the scientific community since at least 1970, and concluded that no one could say to any degree of certainty that the bark on Bussell's car came from the tree located near where Lail's body was discovered. In fact, Dr. Connors noted that the bark on Bussell's car could have come from any one of seven species of tree. After reviewing the evidence, the circuit court found "that Embry's failure was a result of his failure reasonably to investigate and interview prospective witnesses." Moreover, it found that "[t]he scientific evidence presented in November 1991 was not nearly as compelling as the jury was led to believe. . . . If Embry had educated himself, his decision not to consult an independent expert could have potentially been described as tactical. However, there is no evidence that Embry made such an attempt. Therefore, his decision cannot be described as tactical." Ultimately, the court found that Bussell had established, in his RCr 11.42 hearing, that "the Commonwealth's scientific evidence could have been controverted." In reviewing the record before us, we cannot say that the trial judge erred in finding Bussell's trial defense counsel deficient such that he was deprived of a fair trial. Embry's performance during both the guilt phase and penalty phase of Bussell's trial fell below an objective standard of reasonableness. Moreover, we discern no error in the trial court's view that but for Embry's deficiencies, the result of the trial would have been different. Thus, both prongs of the test set forth in Strickland, supra, have been satisfied. Bussell was deprived of effective assistance of counsel during the guilt phase of his trial, entitling him to a new trial. On this appeal, the Commonwealth argues that Bussell was effectively assisted 106 by counsel during the penalty phase of his trial, and thus is not entitled to a new penalty phase. However, the circuit court's order specifically granted Bussell a new trial due to ineffective assistance of counsel during both the guilt and penalty phases of the trial. Although we have found Bussell's trial counsel ineffective in his representation during the guilt phase of the trial, we will nonetheless address the Commonwealth's arguments. This Court has held that "defense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary."[37] In evaluating whether defense counsel has discharged this duty, the court must determine "whether a reasonable investigation should have uncovered such mitigating evidence."[38] If so, then the court must determine if the failure to present this evidence to the jury was a tactical decision by defense counsel.[39] If the decision was tactical, it is given "a strong presumption of correctness, and the inquiry is generally at an end."[40] However, if the decision was not tactical, then the court must evaluate whether there was a reasonable probability that, but for the deficiency, the result would have been different.[41] Specifically, the Commonwealth argues that both Embry and Milburn were unable to locate mitigation witnesses to testify on Bussell's behalf. However, nineteen mitigation witnesses testified over the course of the RCr 11.42 hearing. Despite Embry's and Milburn's claim that they did not know how many siblings Bussell had and that they were unable to locate them, they had in their possession a Kentucky Correctional Psychiatric Center report, which listed all eleven of Bussell's siblings and the towns in which they lived. Furthermore, Embry testified at the RCr 11.42 hearing that he never sought medical, school, employment or jail records. As the circuit court found, "Embry was unable to show the jury that Bussell had a single positive character trait because he had not taken the time to find if he possessed any." The Commonwealth argues that Bussell was uncooperative in assisting his defense team in mounting a proper mitigating case during Bussell's sentencing. Although Embry testified at the hearing that Bussell was uncooperative and that the only mitigation evidence they had was residual doubt, we have specifically held residual doubt not to be a mitigating factor.[42] Moreover, Bussell's uncooperativeness did not relieve Embry of his duty to conduct a reasonable investigation for mitigating evidence. Initially, we note that defense counsel is required to abide by the wishes of his or her client.[43] Furthermore, counsel may not be constitutionally ineffective for failing to present mitigating evidence at the penalty phase of the trial "in deference to the defendant's instructions to forego presentation of such evidence."[44] And, the decision not to conduct 107 an investigation into a defendant's background in search of mitigating evidence may be supported by reasonable professional judgment.[45] However, "the investigation must still be reasonable under the totality of the circumstances."[46] Based on the findings of the circuit court, there was not a reasonable investigation into Bussell's background in an attempt to find mitigating evidence. Had Embry made a reasonable investigation, he would have discovered the evidence necessary to present a proper mitigation case during Bussell's sentencing.[47] Furthermore, such a decision cannot be described as merely tactical, as the record does not support the conclusion that Embry or Milburn even attempted to ascertain whether all possible mitigating evidence might actually assist their client. Moreover, there is a reasonable probability that, but for Embry's deficient performance during the penalty phase of the trial, the outcome would have been different.[48] Quite simply, Embry and Milburn failed to present a mitigation case. Thus, the circuit court did not err in finding that Bussell was also deprived of effective assistance of counsel during the penalty phase of his trial.[49] CONCLUSION For the reasons set forth herein, we find no fault with the circuit court's determination that the Commonwealth deprived Bussell of a fair trial by failing to disclose evidence favorable to Bussell and material to his guilt or innocence in violation of Brady, supra. Furthermore, this Court affirms the circuit court's determination that Bussell was deprived of effective assistance of counsel during both the guilt and penalty phases of his trial. On these grounds, Bussell shall have a new trial. All sitting, except SCOTT, J. All concur. NOTES [1] Bussell v. Commonwealth, 882 S.W.2d 111 (Ky.1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995), rehearing denied, 514 U.S. 1079, 115 S.Ct. 1729, 131 L.Ed.2d 586 (1995). [2] Appellee's attorneys filed a "notice of intent" to file an RCr 11.42 motion as well as several motions to disqualify Judge White, the judge who had presided over the case, and a pre-filing request for "post-conviction discovery," which is not authorized under our rules. [3] Bowling v. Commonwealth, 926 S.W.2d 667 (Ky.1996). [4] No.2004-SC-0184-MR (April 22, 2004) (unpublished). [5] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). [6] Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001) (citing Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky.1998); McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986); McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996)). [7] Bowling v. Commonwealth, 80 S.W.3d 405 (Ky.2002), cert. denied, 538 U.S. 931, 123 S.Ct. 1587, 155 L.Ed.2d 327 (2003). [8] 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. [9] Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. [10] Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). [11] United States v. Corrado, 227 F.3d 528, 538 (6th Cir.2000). [12] Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). [13] Untied States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). [14] Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. [15] Id. at 103, 96 S.Ct. at 2397. [16] Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002). [17] See Haight, supra. [18] 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490. [19] Bagley, 473 U.S. 667, 105 S.Ct. 3375. [20] Kyles, 514 U.S. at 437-38, 115 S.Ct. at 1567-68 (emphasis added). [21] 125 S.W.3d 196, 207 (Ky. 2003) (quoting Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky. 1994)). [22] See id.; see also Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997). [23] Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. [24] Kyles, 514 U.S. at 433-34, 115 S.Ct. at 1565-66. See also Metcalf v. Commonwealth, 158 S.W.3d 740, 746 (Ky. 2005). [25] See Brady, 373 U.S. at 88, 83 S.Ct. at 1197 (holding that suppression of evidence favorable to the accused upon request violates due process, irrespective of the good faith or bad faith of the prosecution). [26] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). [27] Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. [28] Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001) (citing Strickland, supra). [29] United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). [30] Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. [31] Id. [32] Haight, 41 S.W.3d at 441 (citing Gilliam v. Commonwealth, 652 S.W.2d 856, 858 (Ky. 1983)). [33] Id. at 442 (citing Strickland, supra). [34] Id. at 441-42; see also Morrow, supra; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). [35] Id. (citing Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky. 1998); McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986); McQueen v. Scroggy, 99 F.3d 1302 (6th Cir.1996)). [36] Id. (citing Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968)). [37] Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001). [38] Id. (emphasis in original) (citation omitted). [39] Id. [40] Id. [41] Id. [42] Thompson v. Commonwealth, 147 S.W.3d 22, 50 (Ky. 2004). [43] SCR 3.130-1.2(a). [44] Tyler v. Mitchell, 416 F.3d 500, 503-04 (6th Cir. 2005), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 334 (1990); see also Foley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000) (finding that counsel's decision not to call mitigation witnesses was a result of discussions with the defendant and trial strategy), overruled in part on other grounds, Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005). [45] See Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir. 1998); see also Fisher v. Angelone, 163 F.3d 835 (4th Cir. 1998). [46] Stevens v. Zant, 968 F.2d 1076 (11th Cir. 1992). [47] Strickland, supra. [48] Id. [49] In part 2 of this opinion, we have recounted numerous instances of deficient performance of trial counsel as found by the trial court. The trial of this case was in November of 1991. As reflected in this Court's opinion in KBA v. Embry, 152 S.W.3d 869 (Ky. 2005), in and around that time, Embry was divorced from his wife, one of her children died of a brain injury, and her other child went to prison. In November, 1991, Embry's father died and he moved in with his mother as her caretaker. During this time, he became addicted to crack cocaine. Ultimately, he was discharged from his employment, and his mother died of neglect for which Embry was charged and pled guilty to second-degree manslaughter. Ultimately, Embry was permanently disbarred.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4686 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ISA HARNETT, a/k/a Isa Hardnett, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:03-cr-00244-F-1) Submitted: March 30, 2010 Decided: April 13, 2010 Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Isa Harnett, originally convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924 (2006), appeals from the district court’s order revoking his supervised release and sentencing him to twenty-four months’ imprisonment. At his revocation hearing, Harnett admitted to engaging in criminal conduct while on supervised release and failing to report his arrest within seventy-two hours. On appeal, Harnett argues that his sentence was plainly unreasonable because the district court employed a flawed procedure in sentencing him. We affirm. This court reviews a sentence imposed as a result of a supervised release violation to determine whether the sentence was plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). The first step in this analysis is to determine whether the sentence was unreasonable. Id. at 438. This court, in determining reasonableness, follows generally the procedural and substantive considerations employed in reviewing original sentences. Id. If a sentence imposed after a revocation is not unreasonable, this court will not proceed to the second prong of the analysis — whether the sentence was plainly unreasonable. Id. at 439. Also, although a district court must consider the policy statements in Chapter Seven of the sentencing guidelines 2 along with the statutory requirements of 18 U.S.C. § 3583 (2006) and 18 U.S.C. § 3553(a), the district court has broad discretion to revoke supervised release and impose a term of imprisonment up to the statutory maximum. Crudup, 461 F.3d at 439 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005)). Finally, on review, this court will assume a “deferential appellate posture concerning issues of fact and the exercise of discretion.” Crudup, 461 F.3d at 439 (internal quotation omitted). Harnett argues that the district court failed to consider all the applicable § 3553(a) factors and failed to make an individualized assessment based on the facts presented. The district court was not required to “robotically tick through” every subsection of § 3553(a). United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). Nor was the district court required to discuss every § 3553(a) factor on the record. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). Harnett does not mention which § 3553(a) factor the district court failed to consider, and the district court’s thoughtful and detailed statement at sentencing establishes that the court considered the relevant § 3553(a) factors. Accordingly, Harnett’s argument is without merit. Harnett also argues that his sentence was procedurally unreasonable because the district court did not specifically 3 address his efforts while in prison to better himself or that he had served a state prison sentence for the offense conduct that was the basis for his supervised release violation. However, at sentencing, Harnett never actually argued for a particular sentencing outcome. Therefore, his claim is reviewed for plain error. United States v. Thompson, __ F.3d __, 2010 WL 624118, *3 (4th Cir. Feb. 23, 2010) (No. 09-4247). To establish plain error, Harnett must demonstrate that: (1) there was error; (2) the error was “plain;” and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). If the three elements of this standard are met, this court may still exercise its discretion to notice the error only if “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985) (internal quotations omitted)). Harnett fails to show any error by the district court in explaining the basis for the sentence imposed. At sentencing, Harnett, through counsel, merely highlighted facts for the district court to consider in possible mitigation of Harnett’s conduct. The court’s explanation for Harnett’s sentence indicates that the district court simply found those facts insufficient to overcome the severity of Harnett’s conduct, his performance on supervised release, the benefit 4 Harnett received from the Fed. R. Crim. P. 35 motion, and Harnett’s extensive criminal history. See United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007). Accordingly, we affirm the judgment of the district court. We dispense with oral argument as the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5	{ "pile_set_name": "FreeLaw" }
557 S.W.2d 581 (1977) Barbara Matthews HOUTCHENS, Appellant, v. Harley O. MATTHEWS, Appellee. No. 17925. Court of Civil Appeals of Texas, Fort Worth. October 20, 1977. Rehearing Denied November 17, 1977. 582 Clayton Kramer, Wichita Falls, for appellant. Sparkman & Brian and Roy T. Sparkman, Wichita Falls, for appellee. OPINION SPURLOCK, Justice. This case involves a motion to reduce unpaid child support to judgment under Section 14.09(c) of the Texas Family Code. The statute does not set forth any applicable statute of limitations. At the time of the hearing on the motion, the father was in arrears on the court-ordered child support payments in excess of eight years; however, the trial court decreed judgment to the mother for unpaid child support for 583 only four years. The trial judge applied the four-year statute of limitations, as set forth in art. 5529[1]. The appellant contends that the ten-year statute of limitations, as set forth in art. 5532[1], was the applicable statute of limitations and that the trial court erred in not rendering judgment for her for the entire time period in which the appellee had not paid the child support as ordered by the original divorce decree. We reverse and render. The parties were divorced in 1965. There were two children of the marriage. When the divorce was granted, the father was ordered to pay child support for each of the two children, commencing December 31, 1965. The amount of such child support was to be $60.00 per month per child. None of the installments due after June 1, 1968, had been paid. Tex. Family Code Ann. § 14.09(c) (1974) became effective on January 1, 1974. It read as follows: "On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days' notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts." (Emphasis added.) Pursuant to this statute, the appellant on October 5, 1976, filed a motion to reduce unpaid child support to judgment. The motion was heard by the trial court on December 23, 1976. After a hearing on the motion, the trial court granted the appellant a judgment in the amount of $5,460.00, from which she has taken this appeal. No findings of fact and conclusions of law were filed in this case. (Each party assumes that the proceeding on the motion under Tex. Family Code Ann. § 14.09(c) (1974) constituted a "trial by the court" within the meaning of Tex.R.Civ.P. 296. Since that question is not before us for decision, we shall assume, without deciding, its correctness.) In such a situation, the appellant must convince this court that the trial court could not have properly based its judgment upon any of the defenses raised by the appellee. The appellee pleaded or raised the statute of limitations, laches, estoppel, loss of jurisdiction after age eighteen, an agreement between the parties modifying the divorce decree as to child support and visitation, and credit for payments made directly to Douglas. Where no findings of fact and conclusions of law are filed nor timely requested, the rule by which this court is normally bound is as follows: "In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto `it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.'" (Emphasis added.) Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950). We recognize the above quoted rule; however, in this case, the fact that the father is in arrears in his child support payments in excess of eight years is undisputed. The appellant in her brief states that at the hearing, the father admitted that "he had paid none of the installments due for either child on and after June 30, 1968." The appellee has not challenged this statement in any manner; therefore, we apply Tex.R.Civ.P. 419 which provides that "[a]ny statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party." Since the father was in arrears for over eight years, the amount of his arrearage was $11,700.00, but the trial court's judgment was for only $5,460.00. The only possible explanation for the amount of the judgment rendered in the appellant's favor is that the court gave her judgment for all child support installments falling due from 584 and including October 31, 1972, through and including September 30, 1976. Forty-eight (48) months at $60.00 per month for Douglas (who had not turned eighteen) is $2,880.00. Royce had reached eighteen years of age five months before September 30, 1976, so forty-three (43) months at $60.00 per month is $2,580.00. These two figures total $5,460.00, which is the amount of the judgment that the trial court rendered. The arithmetic does not support any conclusion other than that the trial court rendered judgment in this case on the basis of a four-year statute of limitations. Whether the trial court applied the proper statute of limitations is a law question for this court to decide. Each spouse in Texas has the duty to support his or her minor children. Tex. Family Code Ann. § 4.02 (1974). This was also the law before the adoption of the Family Code. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Morgan v. Drescher, 219 S.W.2d 488 (Tex.Civ.App. Galveston 1949, writ ref'd n. r. e.). Prior to the enactment of the Family Code, the only remedy available to the parent who had received custody of the child was to have the party owing the child support held in contempt of court. Contempt is still an available remedy under § 14.09(a) and (b) of the Family Code. Section 14.09(c) now provides an additional remedy, which is to file a motion to reduce unpaid child support to judgment. In Harrison v. Cox, 524 S.W.2d 387 (Tex.Civ.App.Fort Worth 1975, writ ref'd n. r. e.), Justice Brewster, speaking for this court, wrote: "We are convinced that the purpose of Art. 14.09 was to provide courts with efficient means of enforcing the payment of child support obligations and that the Legislature intended the different remedies provided by that Statute for the collection of child support to operate independently of each other as well as concurrently...." Id. at 392. (Emphasis added.) Tex. Family Code Ann. § 14.09 (1974) is a remedial statute. It does not give an additional right, but only an additional remedy. "Remedial law or procedural law is the law that pertains to practice and procedure. It is the legal machinery by which the substantive law is made effective." Harrison v. Cox, supra, at 391. The statute, however, does not set forth a specific statute of limitations that will be applicable to motions to reduce unpaid child support to judgment. In her first two points of error, the appellant contends that the trial court erred in holding the four-year statute of limitations (as set forth in art. 5529[2]) applicable and in failing to hold the ten-year statute (as set forth in art. 5532[2]) applicable. The appellee urges that the proper statute of limitations in this case is the four-year statute of limitations as set forth in art. 5529[2]. In Texas, once the installment for child support has accrued, it is not subject to modification. An order providing for the support of a child may be modified only as to obligations that accrue subsequent to the motion to modify. Tex. Family Code Ann. § 14.08(c)(2) (1975). The divorce in this case became final in 1965. Each installment became final and unmodifiable as it accrued, and the amount of each accrued installment is liquidated. Prior to the enactment of the Family Code, it was impossible for a person entitled to such accrued child support payments to record an abstract of judgment or to take advantage of other enforcement methods normally available to one who has secured a final judgment. Tex. Family Code Ann. § 14.09(c) (1974) has remedied this situation. It provides a procedure whereby the party entitled to receive payments for the benefit of a child may make a motion for the court to render judgment against a defaulting party for the accrued child support arrearage that has become final and unmodifiable. Tex. Family Code Ann. § 14.09(c) (1974). In enacting that section, the Legislature added the caption "Enforcement of 585 Order." While the caption is not controlling, it does indicate to this court an intention on the part of the Legislature that this section was only intended to be an enforcement section; it does not create a new cause of action. In several other states where one spouse has sought to collect alimony or child support awarded under a prior divorce decree, the courts have applied the statute of limitations applicable to judgments. Wadler v. Wadler, 325 Ill.App. 83, 59 N.E.2d 505 (1945); Carpenter v. Metropolitan Trust Co., 327 Ill.App. 220, 63 N.E.2d 658 (1945); Marte v. Marte, 45 N.Y.S.2d 174 (1943). Also, see 70 A.L.R.2d 1250, 1255, Annot. (1960). There is an excellent note, entitled "Delinquent Child Support: Remedies, Limitations, and Laches," in 28 Baylor L.Rev. 197 (1976), written by James Richmond-Hawkins. In considering whether the four or ten year statute of limitation should apply to motions under Tex. Family Code Ann. § 14.09(c) (1974), he wrote: "The policy involved in the support relationship ought to afford the supporting party a longer time in which to press a claim which was fruitless at the time it first arose." We agree with this public policy. The case of Turinsky v. Turinsky, 359 S.W.2d 114 (Tex.Civ.App.Dallas 1962, no writ) deserves special mention. In that case, the father had been ordered by an Oklahoma divorce decree to pay $150.00 per month as child support for two children. He later moved to Texas where his wife sued him for the unpaid child support. The Dallas court of civil appeals applied art. 5530[3], which is the ten-year statute of limitations for foreign judgments, and affirmed a judgment of $15,540.00 for the accrued child support. In Turinsky, supra, the court obviously viewed the Oklahoma divorce decree ordering child support payments to be a final judgment within the meaning of art. 5530[3]. We sustain the appellant's first two points of error and hold that upon a motion to reduce unpaid child support to judgment under Tex. Family Code Ann. § 14.09(c) (1974), the applicable statute of limitations is the ten-year statute as applicable to judgments, as set forth in art. 5532[4]. Since no findings of fact and conclusions of law were filed, we reiterate that the appellant must convince this court that the trial court could not have properly based its judgment upon any of the defenses raised by the appellee. In her third and fourth points of error, appellant basically contends that the trial court erred in holding (if it did) that appellant's right to child support payments was barred by laches. At the outset, we note that laches, where applicable, is a complete bar. 35 Tex.Jur.2d Laches and Stale Demands § 2 at 459 (1962). Since the trial court rendered judgment for the appellant for $5,460.00, it is clear to us that the trial court did not find the defense of laches to be applicable. We sustain the appellant's third and fourth points of error. In her fifth and sixth points of error, the appellant contends that the trial court erred in holding (if it did) that the appellant was estopped to seek recovery of accrued child support. In general, the concept of estoppel is that one who has induced another to act in a particular way should not be permitted to adopt an inconsistent position, attitude, or course of conduct and thereby cause loss or injury to the other person. First State Bank of Riesel v. Dyer, 248 S.W.2d 785 (Tex.Civ.App.Waco 1952), aff'd, 151 Tex. 650, 254 S.W.2d 92 (1953). There are five distinct elements of estoppel: (1) there must have been a false representation or concealment of material fact[s]; (2) it must have been made with knowledge, actual or constructive of those fact[s]; (3) the party to whom it was made must have been without knowledge or the means of acquiring knowledge of those 586 fact[s]; (4) it must have been made with the intention that it should be acted on; and (5) the party to whom it was made must have relied or acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Appellee contends that the facts support a finding of estoppel, if the judge made his decision on that basis. Due to the absence of findings of fact and conclusions of law, we have considered the evidence most favorable to the appellee on the issue and disregarded the evidence which is opposed to it. On the issue of estoppel, appellee's attorney has directed us to a statement by the appellee that he was told by appellant that if he did not pay child support, he could not see the children. In that situation, the appellee could have gone to court to enforce his visitation rights. Appellee is concerned that the appellant is going to secure the accrued child support from him in a lump sum. He could have avoided this by paying the child support as it was due, and if he truly did not know where to send the monthly payments, he could have paid the payments into the registry of the court, or he could have deposited the payment each month in a savings account for each of the children. This would have prevented the accruing of this lump sum. During a period in excess of eight years, the appellant had to support these two children without the financial help of the children's father. During this period, appellant fulfilled both her and appellee's support obligation to the children. We can not see where the appellant is going to receive any windfall. Having carefully considered the evidence most favorable to appellee on the issue of estoppel, we hold that the essential elements of estoppel are not to be found in this case. We sustain appellant's fifth and sixth points of error and hold that the trial court erred in holding (if it did) that the appellant was estopped to seek recovery of accrued child support. Appellant's seventh point of error is basically that the trial court erred in holding (if it did) that it did not have jurisdiction to award child support that had accrued before Royce had reached age eighteen, since the motion under Tex. Family Code Ann. § 14.09(c) (1974) was not filed until Royce had reached his majority. Appellee contends that once a child reaches eighteen years of age, a parent is no longer entitled to receive payments for the benefit of that child. Obviously, appellee's argument would be correct if the appellant were trying to collect unpaid child support for a period after Royce had reached eighteen, but that is not the case here. Instead, the appellant is only trying to collect child support that had accrued and become a final judgment before Royce had attained his majority. The parties have cited the cases of Ex Parte Hooks, 415 S.W.2d 166 (Tex.1967) and McCullough v. McCullough, 483 S.W.2d 869 (Tex.Civ.App.Tyler 1972, no writ). We do not believe that either of these two cases is in point, since both of these cases involved a trial court's application of the contempt power under Tex.Rev.Civ.Stat.Ann. art. 4639(a). That article was repealed, effective January 1, 1974, which is the date that the new Family Code became effective. Tex. Family Code Ann. § 14.09 (1974) is the new enforcement section; this new section includes the remedy of contempt, but not in the same terms as found in the repealed Tex.Rev.Civ.Stat.Ann. art. 4639(a). Accordingly, we find cases dealing with the application of a now repealed statute on contempt to be of no use in the present litigation. An action under Tex. Family Code Ann. § 14.09(c) (1974) is retroactive, in that it applies to child support payments accruing under orders made prior to its effective date. Harrison v. Cox, supra. An action under Tex. Family Code Ann. § 14.09(c) (1974) is authorized only upon "the motion of any party entitled to receive payments for the benefit of a child." The statute does not indicate any intention on the part of the Legislature to extinguish 587 the remedy of a "party entitled to receive payments" upon the child's attaining majority to the extent of payments already accrued. We hold that a party's remedies under this section do not end when the child attains majority as to installments that have accrued and become final judgments prior to the child's attaining his majority. We sustain the appellant's seventh point of error and hold that the trial court erred in holding (if it did) that it did not have jurisdiction to award child support that had accrued prior to Royce's attaining age eighteen. In her eighth point of error, appellant contends that the trial court erred in holding (if it did) that appellee and appellant ever made a binding agreement that appellee would not be required to pay any part of the child support due from 1968 forward. The law in Texas is clear that the parents of minor children do not have the power, without court approval, to effect modification of a decree and orally agree to a reduction of child support payments. McIntyre v. McFarland, 529 S.W.2d 857 (Tex.Civ.App.Tyler 1975, no writ); In Re McLemore, 515 S.W.2d 356 (Tex.Civ.App. Dallas 1974, no writ). We sustain appellant's eighth point of error. Appellant's ninth point of error is that the trial court erred in holding (if it did) that appellee was entitled to credit for payments that he had made directly to Douglas. Appellee has conceded that the trial court erred if it gave credit for any such payments made directly to Douglas. Even though no findings of fact and conclusions of law were filed, appellant has convinced us that the trial court erred in making its judgment upon any defensive theory raised by the appellee. Tex.R.Civ.P. 434 authorizes us to render the judgment or decree that the trial court should have rendered, unless it is necessary that some matter of fact be ascertained or the damages to be assessed or the matter to be decreed is uncertain. The trial court should have rendered judgment against appellee for $11,700.00, which is $6,000.00 for accrued child support for Douglas (100 months at $60.00 per month from June 30, 1968, through and including September 30, 1976) and $5,700.00 for accrued child support for Royce (95 months at $60.00 per month from June 30, 1968, through and including April 30, 1976). The judgment of the trial court is reversed; judgment is rendered against appellee in favor of appellant for $11,700.00, plus legal interest from February 10, 1977. NOTES [1] Tex.Rev.Civ.Stat.Ann. [2] Tex.Rev.Civ.Stat.Ann. [3] Tex.Rev.Civ.Stat.Ann. [4] Tex.Rev.Civ.Stat.Ann.	{ "pile_set_name": "FreeLaw" }
672 F.2d 912 Rowlettev.Gathright 81-6807 UNITED STATES COURT OF APPEALS Fourth Circuit 11/30/81 1 W.D.Va. VACATED AND REMANDED	{ "pile_set_name": "FreeLaw" }
498 P.2d 382 (1972) STATE of Oregon, Appellant, v. Steven B. BETTIN, Respondent. State of Oregon, Appellant, v. CHARLEEN J. ENGLISH, Respondent. State of Oregon, Appellant, v. Corlea S. BETTIN, Respondent. State of Oregon, Appellant, v. Gregory William Remling, Respondent. Court of Appeals of Oregon, Department 1. Decided June 23, 1972. Argued and Submitted May 16, 1972. Robert E. Brasch, Dist. Atty., Coquille, argued the cause for appellants. With him on the brief was Richard L. Barron, Asst. Dist. Atty., Coquille. Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for respondents. Before LANGTRY, P.J., and FOLEY and FORT, JJ. 383 FOLEY, Judge. These are the consolidated appeals in four criminal cases. In each case the defendant is charged by indictment with criminal activity in drugs. The circuit court sustained demurrers to each of the four indictments on the ground that the indictments did not state the crime with sufficient definiteness and certainty, and the state appeals. Typical of the four indictments charging criminal activity in drugs (omitting caption) is the following: "That said ____ on the 15th day of January, 1972, in the County of Coos and State of Oregon, then and there being, did unlawfully and knowingly possess Marijuana, a narcotic drug contrary to the Statutes * ." The cases were brought under the new criminal code which was adopted by the Oregon Legislature in 1971. The statute under which the indictments were brought reads as follows: ORS 167.207: "(1) A person commits the crime of criminal activity in drugs if he knowingly and unlawfully manufacturers [sic], cultivates, transports, possesses, furnishes, prescribes, administers, dispenses or compounds a narcotic or dangerous drug. "(2) Except as provided in subsections (3) and (4) of this section, criminal activity in drugs is a Class B felony, or the court may, under the criteria set forth in ORS 161.705, enter judgment for a Class A misdemeanor and impose sentence accordingly. "(3) Notwithstanding subsection (2) of this section, if the conviction is for possession of less than one avoirdupois ounce of marihuana and it is the defendant's first conviction for any narcotic or dangerous drug offense, criminal activity in drugs is a Class A misdemeanor. "(4) Notwithstanding subsection (2) of this section, if the defendant is 18 years of age or over and the conviction is for furnishing a narcotic or dangerous drug to a person under 18 years of age and who is at least three years younger than the defendant, criminal activity in drugs is a Class A felony." The indictments alleged that each defendant unlawfully and knowingly possessed marihuana, except the indictment against the defendant Remling alleged that he knowingly, feloniously, and unlawfully possessed marihuana. The defendants contended in argument before the circuit court that since the penalty, i.e., whether the offense was to be a felony or a misdemeanor, depended on the quantity of marihuana possessed and whether defendant had previously been convicted of a narcotic or dangerous drug offense, they were entitled to be advised of the state's contention in this regard. The state contended that the provisions of the statutes referring to quantity and prior drug convictions are sentencing provisions and do not contain matters required to be alleged in the indictment. The trial court agreed with defendants' contention, sustained the demurrers, dismissed the indictments and authorized resubmission of the cases to the grand jury. The state then appealed pursuant to ORS 138.060. "Article I, section 11, of the Oregon Constitution provides that in `all criminal prosecutions, the accused shall have the right * * to demand the nature and cause of the accusation against him, and to have a copy thereof * * .' * " State v. Green, 245 Or. 319, 322, 422 P.2d 272, 273 (1966). The statutes implementing the constitution as to indictments set forth the particularity with which an offense must be charged in an indictment.[1] 384 ORS 135.630(2) provides that failure to conform substantially to the "certainty" requirements set forth in n 1 is a ground of demurrer. Under the state's theory, a defendant charged with possession of marihuana would not know whether he was being charged with a Class B felony or a Class A misdemeanor until the court, during or after the trial, made a factual determination as to the quantity of marihuana possessed. If the quantity requirement of subsection (3) of the Act were construed as a sentencing provision as the state urges, the trial court rather than the jury would become the fact finder and make evidentiary findings. This is contrary to the requirements of ORS 136.320 which provides, in criminal cases, that "* * * all questions of fact * * * shall be decided by the jury, and all evidence thereon addressed to it." Even more compellingly, Oregon Constitution, Art. I, § 16, provides in pertinent part: "* * * In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law * * ." We hold, therefore, that the defendants are entitled to have the allegations charging them with the crime of possession of marihuana made more definite and certain by alleging whether the quantity of marihuana claimed to have been possessed was greater or less than one avoirdupois ounce.[2] Affirmed. NOTES [1] "ORS 132.520: `The indictment, which is the first pleading on the part of the state, shall contain: "` * * "`(2) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.' "ORS 132.530: `The indictment must be direct and certain as to the party charged, the crime charged and the particular circumstances of the crime charged when such circumstances are necessary to constitute a complete crime.' "ORS 132.540: `(1) The indictment is sufficient if it can be understood therefrom that: "`* * * "`(f) The act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, in such a manner as to enable a person of common understanding to know what is intended and with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case; * * .'" State v. Green, 245 Or. 319, 322-323, 422 P.2d 272, 274 (1966). [2] In State v. Poyntz, 168 Or. 69, 71, 120 P.2d 966, 967 (1942), our Supreme Court construed the larceny statute then in effect. " * * [The statute defined] larceny as follows: "`If any person shall steal any goods or chattels * * * which is the property of another, such person shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value $35, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years; but if the property stolen shall not exceed the value of $35, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $25 nor more than $100.'" The Court considered the necessity of an allegation of value. The Court concluded that "* * * value is an essential ingredient of the crime of larceny in order to determine to which class the offense belongs * * *." 168 Or. at 73, 120 P.2d at 967. This statute and the requirement for pleading value in the indictment is analogous to the present case with reference to pleading the quantity of marihuana.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 22, 2008 No. 07-60766 Summary Calendar Charles R. Fulbruge III Clerk FORTUNATO ELENIO LINDAO-DIAZ Petitioner v. MICHAEL B MUKASEY, U S ATTORNEY GENERAL Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A31 210 182 Before WIENER, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* Petitioner Fortunato Elenio Lindao-Diaz (Lindao), a citizen and native of Ecuador, petitions this court for review of the Board of Immigration Appeals’ (BIA) order affirming the immigration judge’s final order of removal. Lindao argues that his New York conviction for sexual abuse in the first degree was not a conviction for an aggravated felony or a crime of violence and that he is entitled to cancellation of removal. He asserts that 8 U.S.C. § 1252 does not deprive this court of jurisdiction over his petition for review. He additionally * 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. 07-60766 argues that removal statutes should be construed in favor of aliens. The government maintains that Lindao cannot raise these issues because did not raise them before the BIA and that Lindao’s conviction was a conviction for an aggravated felony depriving this court of jurisdiction to consider Lindao’s petition under § 1252(a)(2)(C). Lindao did not raise before the BIA any of the arguments he raises in this court. He does not argue, and has not shown, that his administrative remedies were inadequate. See Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001). As Lindao failed to exhaust his available administrative remedies, we lack jurisdiction to consider his petition for review. See Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986). As this case does not present exceptional circumstances, Lindao’s motion for appointment of counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). PETITION FOR REVIEW DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED. 2	{ "pile_set_name": "FreeLaw" }
451 F.3d 550 David Thomas DAWSON, Petitioner-Appellant,v.Michael MAHONEY, Warden, Respondent-Appellee. No. 06-99004. United States Court of Appeals, Ninth Circuit. June 8, 2006. William F. Hooks, Esq., Helena, MT, Katherine Lund Ross, Esq., Mukilteo, WA, for Petitioner-Appellant. Pamela P. Collins, Mike Mcgrath, Esq., Office of the Montana Attorney General, Helena, MT, for Respondent-Appellee. Before WILLIAM C. CANBY, JR., THOMAS G. NELSON, and ANDREW J. KLEINFELD, Circuit Judges. ORDER 1 Montana state prisoner David Thomas Dawson was convicted and sentenced to death in 1987 for three counts of deliberate homicide. In 2004, Mr. Dawson moved to discharge his federal habeas counsel, to waive further habeas proceedings, and for the appointment of an independent expert to determine his competency. The federal district court appointed two independent mental health experts to evaluate Mr. Dawson and ordered the parties to provide all relevant materials to those experts. After considering the experts' reports, the federal district court found that Mr. Dawson is competent to waive further proceedings and has made that decision knowingly, intelligently, and voluntarily. On December 12, 2005, the federal district court granted Mr. Dawson's motion to discharge his habeas counsel, Kathryn Ross and William Hooks, and granted his motion to waive further habeas proceedings. The federal district court later denied habeas counsel's motion for a certificate of appealability (COA). 2 On December 15, 2005, the Montana district court conducted a competency hearing at which Mr. Dawson appeared by video. After an extensive colloquy with Mr. Dawson, the Montana district court found that Mr. Dawson is competent and has a made a knowing, intelligent, and voluntary decision to waive further habeas proceedings. On April 11, 2006, the Montana Supreme Court granted Mr. Dawson's motion to dismiss counsel Ross and Hooks and granted Mr. Dawson's motion to dismiss all appeals. On May 15, 2006, the Montana district court set an execution date for August 11, 2006.1 3 On December 27, 2005, habeas counsel filed a notice of appeal in federal district court. In this Court, habeas counsel filed "Habeas Counsels' Motion For Certificate of Appealability" (COA) and "Petitioner's, Through Habeas Counsel, Motion For Stay of Execution." Mr. Dawson opposes "former counsel's" COA and stay motions, as does Respondent. 4 An appeal may not be taken from the final order in a habeas corpus proceeding unless a COA is granted. See 28 U.S.C. § 2253(c)(1); see also 28 U.S.C. § 2253(c)(2) (a COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (a substantial showing of the denial of a constitutional right includes a showing that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further), citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). 5 Both the federal district court and the Montana state courts found Mr. Dawson competent and granted his motions to discharge habeas counsel Ross and Hooks. Habeas counsel do not contend that Mr. Dawson has a mental disorder or mental defect, nor do they dispute that Mr. Dawson has no history of mental illness.2 Counsel, relying on Comer v. Stewart, 215 F.3d 910 (9th Cir.2000), argue instead that Mr. Dawson's decision to waive further proceedings is involuntary due to the combination of the harsh conditions on Montana's death row and his reaction to the suicides of two other inmates on death row. See Comer, 215 F.3d at 917 (in addition to competency, the district court must also determine the separate question of whether petitioner's decision is voluntary); see id. at 918 ("The issue is whether Mr. Comer's conditions of confinement constitute punishment so harsh that he has been forced to abandon a natural desire to live"). Mr. Dawson, however, in state and federal court has expressly disavowed these explanations for his decision to waive further habeas proceedings. See, e.g., December 15, 2005 Montana district court RT at 19-25. Because there is no suggestion that Mr. Dawson is not competent, the state court did not err in accepting Mr. Dawson's testimony that his decision to waive further proceedings is not based on intolerable prison conditions nor on the suicides of two inmates on death row. 6 Because there was not a shred of evidence proffered in federal district court or in the Montana state courts (or in this Court) that Mr. Dawson is not competent to discharge his counsel, no reasonable jurist would debate that the district court did not err when it granted Mr. Dawson's motions to discharge his habeas counsel and to waive further proceedings. See Demosthenes v. Baal, 495 U.S. 731, 736, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) ("In the absence of any `meaningful evidence' of incompetency, . . . the District Court correctly denied petitioners' motion for a further evidentiary hearing on the question of Baal's competence to waive his right to proceed"); see also Dennis ex rel. Butko v. Budge, 378 F.3d 880, 891 (9th Cir.2004); Wells By and Through Kehne v. Arave, 18 F.3d 656, 658 (9th Cir.1994). 7 Because Mr. Dawson has competently discharged his habeas counsel, they lack standing to appeal on Mr. Dawson's behalf. We accordingly dismiss habeas counsel's motions for a COA and for a stay of execution. See Baal, 495 U.S. at 737, 110 S.Ct. 2223 (stay improper absent substantial grounds upon which relief might be granted), citing Barefoot, 463 U.S. at 895, 103 S.Ct. 3383. 8 The Court has also received motions for clarification of status and to submit further briefing from Assistant Federal Defender Donahoe, who was appointed as special counsel in the district court to assist Mr. Dawson. Mr. Dawson, however, has informed this Court that Mr. Donahoe no longer represents Mr. Dawson. Accordingly, we dismiss Mr. Donahoe's motions for lack of standing. 9 Any motion for reconsideration must be filed by June 19, 2006. Any response is due June 26, 2006. Any reply is due June 30, 2006. Notes: 1 We take judicial notice of the Montana state court orders and proceedingsSee Fed. R.Evid. 201(b),(c); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 2 See Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (the test for competency to waive further proceedings is "whether [petitioner] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises").	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS April 8, 2019 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-2046 MARK HOPKINS, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 2:17-CV-00419-MCA and 2:09-CR-00863-MCA-1) _________________________________ Jason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for Defendant - Appellant. C. Paige Messec, Assistant U.S. Attorney (John C. Anderson, U.S. Attorney, with her on the brief), Albuquerque, New Mexico, for the Plaintiff - Appellee. _________________________________ Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges. _________________________________ MATHESON, Circuit Judge. _________________________________ Dr. Mark Hopkins filed a motion under 28 U.S.C. § 2255 to vacate his 2010 conviction and sentence for tax evasion. Before his trial, the district court ordered him to make monthly payments into the court’s registry to ensure he was complying with federal tax law. Several months later, Dr. Hopkins requested release of the funds so he and his wife, who was being tried with him, could pay their attorneys. The district court ordered the funds’ return. But then the IRS filed notice of a lien on the funds, prompting the court clerk to file an interpleader action. The district court reversed course. Dr. Hopkins never received the funds. He and his wife were convicted in a jury trial. Dr. Hopkins filed his § 2255 motion on March 29, 2017, following the Supreme Court’s decision in Luis v. United States, 136 S. Ct. 1083 (2016). Luis recognized a defendant’s Sixth Amendment right to use untainted assets to hire counsel of choice.1 Because his conviction became final in 2013, however, Dr. Hopkins’s motion fell outside the usual one-year time limit set by § 2255(f)(1). He sought to avoid that time bar by relying on § 2255(f)(3), arguing that Luis created a “newly recognized” right that would be “retroactively applicable to cases on collateral review.” The district court held that Luis did not create such a right, dismissed the motion, and granted a certificate of appealability. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), (c)(1), we affirm. 1 See United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006) (“The right to select counsel of one’s choice . . . has been regarded as the root meaning of the constitutional guarantee [of the Sixth Amendment].”). 2 I. BACKGROUND A. Trial and Direct Appeal Indictment and Pretrial Proceedings Dr. Hopkins and his wife Sharon Hopkins were tax protestors. They failed to pay income taxes for more than 13 years. In April 2009, a grand jury indicted them on one count of conspiracy to defraud the IRS, in violation of 18 U.S.C. § 371, and seven counts of tax evasion, in violation of 26 U.S.C. § 7201. The Government moved to revoke Dr. Hopkins’s pretrial release, arguing that he was not making quarterly income tax payments required by 26 U.S.C. § 6654. At a hearing on the motion, Dr. Hopkins agreed to make tax payments to an escrow account in the court registry. Between October 2009 and June 2010, he paid approximately $130,000 into the registry. In June 2010, Dr. and Ms. Hopkins moved to end the required payments and have the funds returned. They asserted the payments had “drain[ed] their ability to pay” their lawyers, “thereby causing them to ultimately lose their constitutionally protected right of choice of counsel” under the Sixth Amendment. Aplt. App. at 121. The district court ordered the funds be returned to the Hopkinses. But before the funds’ release, the IRS served notice of a federal tax lien on the court clerk. The clerk then filed an interpleader action for clarification as to the proper distribution of the funds. In response, the district court denied the Hopkinses’ emergency motion to release the funds. Ms. Hopkins’s 3 attorney—who, the Hopkinses claim, “was an integral part of the defense team” for both of them, Aplt. Reply Br. at 8—withdrew on July 15, 2010.2 Conviction and Sentence A jury convicted the Hopkinses on all counts. The district court sentenced Dr. Hopkins to 120 months in prison and three years of supervised release. It ordered the Hopkinses to pay more than $1,700,000 in restitution.3 Direct Appeal The Hopkinses filed a joint appeal, and this court affirmed their convictions and sentences. See United States v. Hopkins, 509 F. App’x 765, 767 (10th Cir. 2013) (unpublished). Although only Ms. Hopkins asserted a deprivation of the right to counsel of choice on appeal, see id. at 770,4 our treatment of that issue on her appeal provides context for our consideration of Dr. Hopkins’s § 2255 appeal. 2 The Government contends that Dr. Hopkins’s counsel of choice represented him throughout the trial. The district court’s docket indicates that after Dr. Hopkins retained counsel and his court-appointed attorney withdrew in June 2009, his retained counsel remained counsel of record throughout the trial. When the district court considered the § 2255 motion, it did not consider whether Dr. Hopkins had been deprived of his right to counsel of choice at trial. Because we conclude Dr. Hopkins’s motion was untimely, we do not reach this issue. 3 Ms. Hopkins was sentenced to 97 months followed by three years of supervised release. See United States v. Hopkins, 509 F. App’x 765, 770 (10th Cir. 2013) (unpublished). 4 Dr. Hopkins’s only argument on appeal was that the “district court erroneously applied the offense level enhancement for obstruction of justice pursuant to [United States Sentencing Guidelines] § 3C1.1.” Hopkins, 509 F. App’x at 780. Because we affirm the district court’s dismissal of Dr. Hopkins’s § 2255 motion on timeliness 4 In deciding the right to counsel of choice issue, we relied on Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989), and United States v. Monsanto, 491 U.S. 600 (1989). In Caplin & Drysdale, the defendant was charged with running a large-scale drug importation and distribution business. After he pled guilty and was ordered to forfeit the proceeds of his crimes under 21 U.S.C. § 853(a),5 his attorney petitioned to collect his legal fees from the forfeited property. Id. at 621. The Supreme Court held the attorney could not recover fees out of the forfeited funds. Id. at 622. It explained that title to forfeitable assets vests in the government “at the time of the criminal act giving rise to forfeiture,” id. at 627, and in light of that vesting, “a defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice,” id. at 626. grounds, we do not address any potential ramifications of his failure to raise a Sixth Amendment argument on direct appeal. 5 Title 21 U.S.C. § 853(a) allows for forfeiture of the proceeds of certain drug offenses. It requires that a defendant convicted of the relevant offenses forfeit (1) “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation” or (2) “any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.” Id. Section 853(c) states that “[a]ll right, title, and interest in property described in [§ 853(a)] vests in the United States upon the commission of the act giving rise to forfeiture under this section.” Id. § 853(c). 5 In Monsanto, decided the same day, the Supreme Court extended Caplin & Drysdale’s holding to authorize freezing of a defendant’s forfeitable assets before conviction to prevent dissipation, even when doing so prevents the defendant from paying counsel. 491 U.S. at 602. The indictment alleged that the defendant had obtained a house, an apartment, and $35,000 in cash through drug trafficking. Id. The government obtained an order freezing those assets under 21 U.S.C. § 853(a). Id. at 603. Pointing to Caplin & Drysdale, the Court held that the order did not violate the defendant’s right to obtain counsel of choice. It said, “[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial.” Id. at 616. In the Hopkinses’ appeal, we concluded that these cases foreclosed Ms. Hopkins’s Sixth Amendment challenge. “[N]either the Fifth nor the Sixth Amendment to the Constitution requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay that defendant’s legal fees.” Hopkins, 509 F. App’x at 773 n.6 (quoting Monsanto, 491 U.S. at 614). Just as the government had rightful possession over the forfeited property in Caplin & Drysdale, the IRS had been “within its rights to file the levy [over the registry funds], which limited Sharon Hopkins’s right to the same funds.” Id. at 773. Accordingly, the district court’s refusal to return the $130,000 to Dr. and Ms. Hopkins did not violate the Sixth Amendment right to counsel of choice. Id. at 773, 776. 6 Following this court’s decision, Dr. Hopkins did not seek certiorari from the United States Supreme Court. His conviction thus became final no later than June 11, 2013. See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (explaining that under § 2255(f)(1), a criminal conviction becomes final when the Supreme Court affirms the conviction or denies certiorari, or, if review by the Supreme Court is not sought, when the time for filing a certiorari petition expires); Sup. Ct. R. 13(1) (2017) (providing that a certiorari petition is timely if filed within 90 days of entry of judgment). B. Luis v. United States On March 30, 2016, nearly three years after Dr. Hopkins’s conviction became final, the Supreme Court decided Luis v. United States, 136 S. Ct. 1083 (2016). In that case, Sila Luis was charged with health care fraud. Id. at 1087. At the government’s request, and pursuant to 18 U.S.C. § 1345(a)(2), the district court prohibited Ms. Luis from “dissipating, or otherwise disposing of . . . assets . . . up to the equivalent value of the proceeds” of the crime. Id. at 1088. The court’s order forbade her from spending not just the proceeds of the crime, but also innocently-obtained property of the same value. Id.6 She therefore could not use untainted funds to hire an attorney. Ms. Luis argued this restriction violated her right to counsel of her choice. 6 Section 1345(a)(2) allows for pretrial freezing of property “obtained as a result of” certain healthcare or banking violations, property “traceable” to the crime, and other “property of equivalent value.” 18 U.S.C. § 1345(a)(2). 7 The Supreme Court agreed. Observing that “[t]he Sixth Amendment right to counsel grants a defendant ‘a fair opportunity to secure counsel of his own choice,’” id. at 1085 (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)), Justice Breyer said in the plurality opinion that “the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.” Id. at 1088.7 It distinguished Caplin & Drysdale and Monsanto, both of which concerned a defendant’s right to pay counsel using assets linked to the crime. The plurality explained, “The relevant difference consists of the fact that the property here is untainted; i.e., it belongs to [Ms. Luis], pure and simple.” Id. at 1090 (“[B]oth Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was ‘tainted.’”). The difference between tainted and untainted assets was “the difference between what is yours and what is mine.” Id. at 1091. The government had a property interest in the defendants’ crime-tainted forfeitable assets in Caplin & Drysdale and Monsanto. But in Ms. Luis’s case, the court’s order extended to freezing “untainted” assets that were not tied to her crime. And even if these assets may have been subject to forfeiture upon her conviction, the government’s contingent interest in the untainted assets did not outweigh Ms. Luis’s right to use the assets to obtain counsel of her choice. Id. at 1092. 7 Justice Thomas concurred in the court’s judgment because “constitutional rights necessarily protect the prerequisites for their exercise,” such that “[w]ithout constitutional protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of choice.” Luis, 136 S. Ct. at 1096, 1098 (Thomas, J., concurring). He noted that the Sixth Amendment right to counsel originally encompassed “only the right to hire counsel of choice.” Id. at 1097. 8 The Luis decision drew two dissenting opinions. Justice Kennedy, joined by Justice Alito, called the Court’s holding “unprecedented,” adding that the decision “ignore[d] this Court’s precedents and distort[ed] the Sixth Amendment right to counsel.” Id. at 1103 (Kennedy, J., dissenting). He reasoned that Caplin & Drysdale and Monsanto “make clear that a defendant has no Sixth Amendment right to spend forfeitable assets (or assets that will be forfeitable) on an attorney.” Id. Those cases involved assets that “belong[ed] to the defendant,” just like Ms. Luis’s assets, but because there was probable cause to believe the assets would be forfeited upon conviction, they could be seized or frozen before trial. Id. at 1106. Accordingly, Justice Kennedy reasoned, the plurality’s distinction between “tainted” and “untainted” assets lacked support. In a separate dissent, Justice Kagan expressed doubts about the correctness of Monsanto’s holding, but concluded that it should control the case. Id. at 1112 (Kagan, J., dissenting). C. District Court § 2255 Proceedings Section 2255(f) Statute of Limitations Section 2255(f) imposes a one-year statute of limitations on a prisoner filing a § 2255 motion. As relevant to this case, the one-year period runs from “the latest of . . . the date on which the judgment of conviction becomes final,” id. § 2255(f)(1), or “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,” id. § 2255(f)(3). 9 Dr. Hopkins’s § 2255 motion On March 29, 2017,8 Dr. Hopkins filed a pro se motion to vacate his conviction under 28 U.S.C. § 2255.9 He argued that the Luis decision was “a substantive change in the law” that entitled him to file the motion more than one year after his conviction had become final. Aplt. App. at 387. He contended that the funds he was ordered to pay into the registry were “innocent assets . . . needed to pay counsel of choice.” Id. at 392. Under Luis, he said, the district court’s refusal to release the registry funds amounted to “unconstitutional and impermissible restraint of [his] innocent assets,” in violation of his Sixth Amendment right to counsel of choice. Id. at 400. The Government did not file a response and the district court did not order it to do so. 8 The Luis decision was handed down on March 30, 2016. Dr. Hopkins’s motion was filed with the district court on April 6, 2017. Because Dr. Hopkins was a prisoner and filed his motion pro se, he may rely on the “prison mailbox rule,” which makes the date on which he presented his motion to prison officials for mailing the filing date for timeliness purposes. See Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005). The record shows he gave his motion to prison officials on March 29, 2017. He therefore filed his motion within one year of the Supreme Court’s decision in Luis. See 28 U.S.C. § 2255(f)(3). 9 Although Dr. and Ms. Hopkins were indicted and tried together, Ms. Hopkins is not a party to this § 2255 proceeding. Following the Luis decision, Ms. Hopkins filed a motion to dismiss the indictment, which the district court construed as a § 2255 motion and dismissed on the same grounds as it dismissed Dr. Hopkins’s motion. See United States v. Hopkins, No. 2:09-CR-00863 MCA, 2018 WL 550594 at 3 (D.N.M. Jan. 23, 2018). Ms. Hopkins did not appeal that decision. 10 District Court Ruling The district court dismissed Dr. Hopkins’s § 2255 motion as untimely. United States v. Hopkins, No. 2:09-CR-00863 MCA, 2018 WL 1393780, at 2 (D.N.M. Mar. 19, 2018). It explained that to obtain relief, Dr. Hopkins needed to show the Luis decision recognized a new right that applies retroactively. Id. It is not clear whether the district court dismissed Dr. Hopkins’s motion because Luis did not recognize a new right or because that right was not retroactively applicable to Dr. Hopkins’s collateral proceeding. The court’s order contains statements pointing in both directions. Immediately after setting forth the test for whether a Supreme Court decision announces a new right, the district court stated that “Luis was based primarily on the application of two existing cases,” Caplin & Drysdale and Monsanto, suggesting it did not view the Luis rule as new. Id. But in the following sentence the court stated that “courts have consistently held that Luis is not retroactively applicable on review.” Id. The district court also granted a certificate of appealability because this court has not previously addressed Luis’s retroactivity. Id. II. DISCUSSION The single issue on appeal is whether Dr. Hopkins’s motion was time-barred under the one-year time limit in 28 U.S.C. § 2255(f). We can resolve this issue by deciding a pure question of law: whether Luis applies retroactively. Because we conclude it does not, Dr. Hopkins’s motion is untimely. 11 A. Standard of Review “[W]e review the district court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear error.” United States v. Miller, 868 F.3d 1182, 1186 (10th Cir. 2017) (quotations omitted). B. Analysis A § 2255 motion typically must be filed within one year of “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). But it may be brought after that time period if the movant files the motion within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Id. § 2255(f)(3). Our analysis focuses on the application of § 2255(f)(3). Timeliness Waiver Dr. Hopkins argues that the Government may not challenge the timeliness of his § 2255 motion because it did not file a response to the motion in the district court. We disagree. In a § 2255 proceeding, “[t]he respondent is not required to answer the motion unless a judge so orders.” Rule 5(a), Rules Governing Section 2255 Proceedings in the U.S. District Courts. Under Rule 5(a), the Government was not required to file a response to Dr. Hopkins’s motion absent an order from the district court. Because the district court never ordered a response, the first time the Government was required to 12 address Dr. Hopkins’s arguments was in this appeal. See United States v. Lopez-Aguilar, 912 F.3d 1327, 1329 (10th Cir. 2019). The Government’s failure to raise its timeliness defense in the district court—where it did not file a response and the court did not order it to do so—does not preclude it from arguing timeliness on appeal. See id. (“If the district court did not order the government to respond to the § 2255 motion, the government could raise the [argument seeking enforcement of the defendant’s appeal waiver] for the first time in the appeal.”).10 10 The parties do not address Rule 5(a). But even as to the argument Dr. Hopkins makes, the Government did not “intentionally relinquish[]” its timeliness defense in any filing. Wheeler v. Falk, 556 F. App’x 734, 734 (10th Cir. 2014) (unpublished); see Aplt. Reply Br. at 13-14. Courts may consider the timeliness of a § 2255 motion sua sponte unless the government affirmatively waives the issue. Wood v. Milyard, 566 U.S. 463, 473-74 (2012) (holding that the government had waived a timeliness defense by stating to the district court it “[would] not challenge, but [was] not conceding” the motion’s timeliness); see also United States v. Mulay, 725 F. App’x 639, 643-44 (10th Cir. 2018) (unpublished) (holding that the government waived a timeliness objection by failing to raise it in the district court and stating on appeal that timeliness was “not implicated”). As discussed above, when the Government filed its brief in this court, it raised a timeliness defense. Unlike in Wood and Mulay, the Government never suggested it was not contesting the timeliness of Dr. Hopkins’s motion. The Government thus has not “intentionally relinquished” its argument that Dr. Hopkins’s motion was untimely. Wheeler, 556 F. App’x at 734. Although not precedential, we find the reasoning of the unpublished decisions cited in this opinion to be instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1. 13 Timeliness of Dr. Hopkins’s § 2255 Motion a. Legal background To determine whether Dr. Hopkins’s motion was timely under § 2255(f)(3), we must evaluate whether Luis recognized a new right that is retroactively applicable on collateral review. When, as in Luis, the Supreme Court has not said whether a right is new or retroactive, we look for guidance to Teague v. Lane, 489 U.S. 288 (1989).11 Teague provides guidance on (1) whether a Supreme Court decision recognized a new right and (2) whether the right is retroactively applicable on collateral review. See id. at 301, 311. We follow this guidance when evaluating timeliness under § 2255(f)(3). United States v. Chang Hong, 671 F.3d 1147, 1150-51 (10th Cir. 2011); see United States v. Taylor, 672 F. App’x 860, 864 (10th Cir. 2016) (unpublished) (applying Teague to evaluate retroactivity under § 2255(f)(3)). We address both considerations below. i. Newly recognized rights under § 2255 As other courts have done, we have used the words “right” and “rule” interchangeably in discussing whether a Supreme Court decision restarts the one-year statute of limitations under § 2255(f)(3). See United States v. Greer, 881 F.3d 1241, 1244-45 (10th Cir. 2018); United States v. Snyder, 871 F.3d 1122, 1125-26 (10th Cir. 2017); see also Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir. 2017). 11 Justice O’Connor wrote Teague’s plurality opinion, which a majority of the Court adopted in Penry v. Lynaugh, 492 U.S. 302, 313 (1989). 14 Under Teague, a rule is not “new” if it was “dictated by precedent existing at the time the defendant’s conviction became final,” 489 U.S. at 301, is “apparent to all reasonable jurists,” Chaidez v. United States, 568 U.S. 342, 347 (quotations omitted), or is “merely an application” of an existing right or principle, id. at 348. Conversely, a right is “newly recognized” for § 2255(f)(3) purposes if it is “not dictated by precedent.” Greer, 881 F.3d at 1245 (quotations omitted). A Supreme Court decision recognizing a right over a dissent is less likely to be dictated by precedent.12 For example, in Chang Hong, we held that the Supreme Court announced a new rule in Padilla v. Kentucky, 559 U.S. 356 (2010), when it held that a criminal defense lawyer must inform a client of the potential deportation consequences of conviction. Chang Hong, 671 F.3d at 1154-55. We said Padilla recognized a new rule because (1) “[b]efore Padilla, most state and federal courts had considered the failure to advise a client of potential collateral consequences of a conviction to be outside the requirements of the Sixth Amendment”; and (2) Padilla “generated both a strong 12 Even a unanimous Supreme Court decision can produce a new rule when the Court arrives at its decision by choosing among several plausible readings of existing precedent. In Johnson v. McKune, 288 F.3d 1187 (10th Cir. 2002), we held that Sandstrom v. Montana, 442 U.S. 510 (1979)—holding a particular jury instruction about intent was unconstitutional—announced a new rule, even though the decision was unanimous. McKune, 288 F.3d at 1196-97. We noted that the Sandstrom Court had rejected a line of precedent the losing party urged, which suggested that the Court’s ultimate result was not “dictated” by precedent. Id. at 1196. (“The fact that contrary federal or state precedent exists, while not dispositive, is relevant to our analysis.”). 15 concurrence and dissent,” including an opinion by Justice Alito calling the ruling a “major upheaval in Sixth Amendment law.” Id. at 1154. Although Padilla had not overturned any precedent, its holding was new. Id. at 1155; see also Chaidez, 568 U.S. at 354, 358 (concluding Padilla announced a new rule). ii. General bar on retroactivity and exceptions “It is generally agreed that both lower federal courts and the Supreme Court can decide the retroactive applicability of a new rule of constitutional law announced by the Supreme Court when reviewing an initial petition” under § 2255. Brian R. Means, Federal Habeas Manual § 9A:30 (2018).13 Under Teague, a new constitutional rule of criminal law or procedure is not generally applicable retroactively to cases on collateral review. 489 U.S. at 310. But Teague recognized two exceptions: (1) rules that change what conduct is punishable under substantive criminal law, and (2) “watershed rules of criminal procedure.” Id. at 311; accord Means, Federal Habeas Manual § 9A:30 (“A ‘new rule’ is retroactively applicable to cases on collateral review for purposes of §§ 2244(d)(1)(C) and 2255(f)(3) if either of the two non-retroactivity exceptions established in [Teague] apply . . . .”). 13 The Government appears to argue that Dr. Hopkins’s motion is untimely because (1) § 2255(f)(3) can provide relief based on a “newly recognized right” only when another court has previously held the right to be retroactive and (2) no court has done so as to Luis. See Aplee. Br. at 6 (quoting United States v. Hoon, 762 F.3d 1172, 1173 (10th Cir. 2014)). We do not address this argument. We instead assume without deciding that we can reach the issue of whether Luis can be applied retroactively to Dr. Hopkins’s case, and we conclude it cannot. 16 First, newly recognized substantive rules—those “forbid[ding] criminal punishment of certain primary conduct” or “prohibit[ing] a certain category of punishment for a class of defendants because of their status or offense”—are not subject to the general retroactivity bar. Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016) (quotations omitted). A rule is “substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016) (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)); see also Williams v. United States, 91 S. Ct. 1171, 1180 (1971) (Harlan, J., concurring) (explaining that substantive rules “place . . . certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority”). For example, in Welch, the Supreme Court stated that its decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which held the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is void for vagueness, applies retroactively. Welch, 136 S. Ct. at 1268. The Welch Court explained that “the rule announced in Johnson is substantive. By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes.’” Id. at 1265 (quoting Schriro, 542 U.S. at 353).14 14 The Court elaborated on the substantive impact of Johnson: Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or 17 Second, “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding” are not subject to the general rule against retroactivity. Beard v. Banks, 542 U.S. 406, 417 (2004) (quotations omitted). To qualify as watershed, the rule must (1) be “necessary to prevent an impermissibly large risk of an inaccurate conviction” and (2) “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 (2007) (quotations omitted). Since Teague, the Supreme Court has never identified a rule that meets this description. See Beard, 542 U.S. at 417 (“[W]e have yet to find a new rule that falls under the second Teague exception.”). It has repeatedly referred to its decision in Gideon v. Wainwright, 372 U.S. 335 (1963)15—recognizing an indigent defendant’s right to appointed counsel in felony cases—as the only rule that might have fallen within the second Teague exception, if it had been decided after Teague.16 See Whorton, 549 U.S. more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. Welch, 136 S. Ct. at 1265. 15 “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon, 372 U.S. at 344. 16 In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court said the Sixth Amendment right to counsel requires federal courts to appoint lawyers for indigent 18 at 419. The Court has explained that this exception is “meant to apply only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty,” Beard, 542 U.S. at 417, and has “not hesitated to hold that less sweeping and fundamental rules [than Gideon] do not fall within Teague’s second exception,” id. at 418. For instance, in Beard, the Supreme Court ruled that its decision in Mills v. Maryland, 486 U.S. 367 (1988), which invalidated capital sentencing schemes that required juries to disregard mitigating factors that are not found unanimously, was not a “watershed rule.” Beard, 542 U.S. at 420. The Court explained, “However laudable the Mills rule might be, it has none of the primacy and centrality of the rule adopted in Gideon.” Id. (quotations omitted). Very few cases discuss the retroactivity of Supreme Court decisions extending the Sixth Amendment right to counsel of choice, and we have not found a case holding that any such decision was retroactively applicable. The Seventh Circuit has even held that defendants in felony cases. Id. at 462-63; see Alabama v. Shelton, 535 U.S. 654, 661 (2002). Gideon made “it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.” Burgett v. Texas, 389 U.S. 109, 114 (1967). In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court held that the Sixth and the Fourteenth Amendments require states to provide appointed counsel to defendants who face a sentence of incarceration for any crime. Id. at 40. Before Teague was decided, the right to counsel at trial, Gideon, on appeal, Douglas v. California, 372 U.S. 353 (1963), and at other critical stages of criminal proceedings were made retroactive. See Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968); Stovall v. Denno, 388 U.S. 293, 297 (1967). 19 United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), which established that a deprivation of the right to counsel of choice constitutes structural error, is not a watershed rule. Rodriguez v. Chandler, 492 F.3d 863, 866 (7th Cir. 2007). b. Luis recognized a new right that is not retroactively applicable Dr. Hopkins filed his § 2255 motion more than one year after his conviction became final. His motion would be timed-barred under § 2255(f)(1) unless he could show under § 2255(f)(3) that the right recognized in Luis is new and retroactive. We conclude that Luis recognized a new right. But because we also conclude that Luis is neither a Teague substantive rule nor a “watershed rule[] of criminal procedure,” Beard, 542 U.S. at 417, that warrants retroactive application, we hold his motion does not satisfy the requirements of § 2255(f)(3) and was thus untimely. i. Luis recognized a new right We disagree with the district court’s apparent ruling that Luis did not recognize a new right for § 2255(f)(3) purposes. See Hopkins, 2018 WL 1393780, at *2. The holding in Luis was not “dictated by precedent existing at the time [Dr. Hopkins’s] conviction became final.” Teague, 489 U.S. at 301. Luis’s rule that the Sixth Amendment prevents the government from pretrial freezing or seizing of untainted assets to prevent their dissipation was not “apparent to all reasonable jurists” in 2010. Chaidez, 20 568 U.S. at 347 (quotations omitted).17 The pre-Luis cases—Caplin & Drysdale and Monsanto—authorized the government to seize or freeze assets before trial upon probable cause that the assets would be subject to post-conviction forfeiture, even if doing so prevented the defendant from paying an attorney. As discussed above, Justice Breyer’s plurality opinion explicitly distinguished Caplin & Drysdale and Monsanto. It explained, “[T]he nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference.” Luis, 136 S. Ct. at 1085. Neither Caplin & Drysdale nor Monsanto had specified that only “tainted” assets could be seized.18 The dissenting Justices’ statements in Luis support that the Court established a new rule. Justice Kennedy referred to the plurality’s ruling that untainted assets could not be frozen as “unprecedented,” stating that it “ignore[d] . . . precedent[].” Luis, 136 S. Ct. at 1103 (Kennedy, J., dissenting). And Justice Kagan believed Monsanto 17 On direct appeal, this court also did not anticipate Luis’s conclusion that Caplin & Drysdale and Monsanto would not apply to the Hopkinses’ escrowed funds. We said that, just as the government in those cases had an interest in “obtaining full recovery of all forfeitable assets,” the IRS had a “longstanding, strong interest in collecting delinquent taxes and securing its interests in delinquent taxpayer’s property through liens and levies.” Hopkins, 509 F. App’x at 773. 18 Title 21 U.S.C. § 853, the forfeiture statute at issue in Caplin & Drysdale and Monsanto, authorizes forfeiture of untainted assets. It “permits the Government to confiscate property untainted by the crime” as “substitute property” when property tied to the crime is unreachable for a variety of reasons. Honeycutt v. United States, 137 S. Ct. 1626, 1633-34 (2017). 21 controlled. Id. at 1112 (Kagan, J., dissenting). Thus, at least some “reasonable jurists,” Chaidez, 568 U.S. at 347, could have concluded that Caplin & Drysdale and Monsanto did not “dictate[]” the rule in Luis. Teague, 489 U.S. 301. Accordingly, Luis recognized a new right that can support a late-filed § 2255 motion if it is retroactive.19 ii. Luis is not retroactive on collateral review The Supreme Court has not stated that the rule it announced in Luis would apply retroactively to cases on collateral review. As a result, the Luis rule can satisfy § 2255(f)(3) and render Dr. Hopkins’s motion timely only if it qualifies for one of Teague’s two exceptions to the retroactivity bar. Because Luis does not qualify for either exception, Dr. Hopkins’s motion was untimely under § 2255(f)(3). 1) Change in substantive law As Dr. Hopkins appears to acknowledge,20 Teague’s first exception does not apply. Luis addressed whether the government could freeze or seize certain assets 19 Dr. Hopkins’s position on whether Luis stated a new rule appeared to shift from his briefing to oral argument. In his brief, he contends that Luis “applied a well- established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.” Aplt. Br. at 8. In the alternative, he argues that Luis qualifies for retroactivity under both of the Teague exceptions. See id. at 15-18. At oral argument, counsel for Dr. Hopkins advanced only the alternative argument, contending that Luis recognized a new right that qualifies for retroactive applicability as a watershed rule of criminal procedure. When asked, “You’re saying it was a new rule?,” counsel responded, “Yes, Your Honor. I think it’s a new rule.” Oral Arg. at 6:02-6:08. 20 Dr. Hopkins’s counsel stated at oral argument that the § 2255 motion is timely only if Luis qualifies for Teague’s second exception: 22 depending on whether those assets were tainted or untainted by the defendant’s crime. It did not exempt any conduct from criminal punishment or spare any defendants from punishment because of their status or the nature of their offense. See Montgomery, 136 S. Ct. at 732. Rather than “plac[ing] . . . certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority,” Williams, 91 S. Ct. at 1180, Luis addressed a governmental function—freezing or seizing assets. Accordingly, Luis cannot be eligible for retroactivity under Teague’s first exception. 2) Watershed procedural rule Luis also does not qualify for Teague’s second exception because it did not announce a watershed rule of criminal procedure. As discussed above, the Supreme Court has not held a new rule of criminal procedure to be retroactive since Teague and has repeatedly stated that Gideon is the only such rule that would qualify. And we have found no lower federal court case holding that a new Supreme Court rule on the right to counsel of choice should apply retroactively on collateral review. The Court: I take it that you have to rely on a Teague exception to survive on this appeal. Counsel: I do. The Court: And so, your case . . . rises or falls on the watershed procedural rule. Counsel: It rises or falls on that. I absolutely believe that. Oral Arg. at 15:10-15:28. 23 Dr. Hopkins argues that Luis fashioned a watershed rule because, like the Gideon right to counsel, the right to use untainted assets to pay for counsel of choice “affect[s] the determination of a defendant’s guilt.” Aplt. Reply Br. at 19. This is so because “the inability to present a desired defense by counsel of choice does increase the likelihood of inaccurate convictions and fundamental procedural fairness.” Id. Although this argument is not without merit, it does not meet Teague’s high bar for a watershed rule. The right to counsel of choice and the Gideon right to court-appointed counsel are distinct rights guaranteed under the Sixth Amendment. The right to counsel of choice concerns the ability to select a particular lawyer and “does not extend to defendants who require counsel to be appointed for them.” Gonzalez-Lopez, 548 U.S. at 151; see also Caplin & Drysdale, 491 U.S. at 624 (“The Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.”). Deprivation of the right to counsel of choice can be a structural error that “affec[ts] the framework within which the trial proceeds,” Gonzalez-Lopez, 548 U.S. at 148, not because of its impact on the accuracy of the trial but because it “protects an interest in [the defendant’s] autonomy,” Rodriguez, 492 F.3d at 866; see also United States v. Gordon, 710 F.3d 1124, 1135 (10th Cir. 2013) (explaining that the right to counsel of choice “stems from a defendant’s right to decide what kind of defense he wishes to present” (quotations omitted)). It therefore does not follow that an extension of the right to counsel of choice satisfies the second Teague exception. Tyler v. Cain, 533 24 U.S. 656, 666 n.7 (2001) (“Classifying an error as structural does not necessarily alter our understanding of . . . bedrock procedural elements.”). The new right recognized in Luis does not meet the Whorton criteria for a watershed rule. Dr. Hopkins has not shown that extending pretrial protection to untainted assets so that he can pay counsel of choice is “necessary to prevent an impermissibly large risk of an inaccurate conviction.” Whorton, 549 U.S. at 418 (quotations omitted). Even without a right to the registry funds, he continued to have the right to appointed counsel and effective assistance of counsel under the Sixth Amendment. Nor has he shown that the Luis rule “alter[s] our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Id. Even a “showing that a new procedural rule is based on a ‘bedrock’ right” is insufficient because “a new rule must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” Id. at 420-21. We are not asked to decide whether the right to counsel of choice is itself a watershed procedural rule, but rather whether Luis’s extension of that right qualifies as a watershed rule. Luis’s new application protecting the right to use untainted, forfeitable assets to pay for counsel of choice is not an extension of the core right to appointed counsel recognized in Gideon. Before Luis, defendants who could not pay counsel of their choice because their untainted assets were seized or frozen were not left without legal representation. They could instead hire a less expensive lawyer or rely on appointed counsel. After Luis, they may pay counsel of their choice. Because the right 25 to counsel of choice is not the same as the right to have counsel at all, and because Luis’s protection of the right to use untainted assets to hire counsel of choice is not an extension of the Gideon right, Luis is not sufficient to meet Teague’s second exception. In short, Luis is not Gideon, and Luis does not extend Gideon. See Chang Hong, 671 F.3d at 1158.21 III. CONCLUSION The new right recognized in Luis is not retroactively applicable because (1) it did not change what conduct is punishable under substantive criminal law and (2) it is not a watershed procedural rule. As a result, Dr. Hopkins cannot rely on Luis to satisfy the timeliness requirements of § 2255(f)(3). His § 2255 motion was properly dismissed as untimely. We affirm the district court’s judgment. 21 In the Gideon right-to-counsel context, the Eleventh Circuit has allowed for retroactive application of a new rule that extends the Gideon right to counsel on the theory that such rules are inseparable from the “bedrock procedural element” of Gideon. Howard v. United States, 374 F.3d 1068, 1080-81 (11th Cir. 2004). Luis would not qualify for such treatment. Luis did not extend the right to counsel to a context in which the Gideon right was not previously available. In cases like Luis and this one, defendants already have the right to appointed counsel if they cannot afford to hire a lawyer. The question in Luis was whether the defendant had the right to use untainted assets to pay for counsel of choice. 26	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION DEC 06 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-10102 Plaintiff-Appellee, D.C. No. 1:13-cr-00362-AWI-BAM-3 v. LEROY DONOVAN COMBS, MEMORANDUM* Defendant-Appellant. UNITED STATES OF AMERICA, No. 16-10115 Plaintiff-Appellee, D.C. No. 1:13-cr-00362-AWI-BAM-4 v. CHARLES WAYNE UPTERGROVE, Defendant-Appellant. UNITED STATES OF AMERICA, No. 16-10123 Plaintiff-Appellee, D.C. No. 1:13-cr-00362-AWI-BAM-5 v. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. LADONNA LEE MOON, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding Argued and Submitted November 16, 2017 San Francisco, California Before: W. FLETCHER and PAEZ, Circuit Judges, and WILKEN, District Judge. Leroy Donovan Combs, Charles Wayne Uptergrove and Ladonna Lee Moon appeal their convictions under 18 U.S.C. § 287. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1. All defendants: The district court did not abuse its discretion in denying the defendants’ mistrial motions based on co-defendant Gaylene Bolanos’ courtroom outburst in front of the jury. See United States v. Sarkisian, 197 F.3d 966, 981 (9th Cir. 1999). First, the outburst was not inherently prejudicial. See Holbrook v. Flynn, 475 U.S. 560, 570 (1986). In contrast to the “truly rare” set of circumstances in United States v. Mannie, 509 F.3d 851, 857 (7th Cir. 2007), the The Honorable Claudia Wilken, United States District Judge for the Northern District of California, sitting by designation. 2 jury in this case witnessed only a single two- to three-minute outburst from a co- defendant, rather than a “violent courtroom brawl,” or a “campaign of intimidation.” Second, the district court took reasonable steps to ensure the fairness of the proceedings and jury impartiality. See United States v. McCormac, 309 F.3d 623, 626 (9th Cir. 2002) (holding a “district court’s assessment of the jury’s ability to remain impartial despite the explosion of defiance from [a] defendant is accorded substantial weight because the district court is in the best position to ascertain whether an event is prejudicial”). The court read the jury a cautionary instruction prepared by defense counsel, and approved by all counsel, and gave the jurors an opportunity to express whether the outburst impacted their ability to be fair to all defendants. No juror expressed any concern over his or her ability to be fair and impartial. 2. Uptergrove and Moon: The district court properly declined to instruct the jury that a conviction for making a false claim under § 287 requires proof of willfulness or intent to defraud. Under Ninth Circuit authority, an intent to defraud is not an element of a charge under the false prong of § 287. See United States v. Milton, 602 F.2d 231, 234 (9th Cir. 1979) (holding “the jury need not receive an instruction on intent to defraud the government, nor is it an element of the offense, 3 when the government prosecutes for the submission of false claims in violation of 18 U.S.C. § 287”). Uptergrove and Moon fail to cite binding authority requiring the district court to instruct the jury on a good faith defense against false claim charges under § 287. 3. Combs: The district court committed no error in sentencing Combs to 45 months’ imprisonment. We review a sentence for reasonableness, and “only a procedurally erroneous or substantively unreasonable sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district court’s reference to Combs’ “long, long history of failing to comply with the tax laws” is well supported by the undisputed presentence report as well as by evidence in the trial record, upon which the district court was permitted to rely in fashioning an appropriate sentence. See United States v. Fitch, 659 F.3d 788, 790- 791 (9th Cir. 2011). 4. Uptergrove: The district court properly denied Uptergrove a two-level reduction for acceptance of responsibility. The court’s actions were reasonable in light of Uptergrove’s “decision to take the case to trial, where he vigorously denied the ‘[knowingly]’ element of the offense.” United States v. Chastain, 84 F.3d 321, 324 (9th Cir. 1996). The record neither shows nor suggests that the district court deemed Uptergrove ineligible for the reduction merely because he went to trial and 4 contested his factual guilt. United States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002), United States v. Ochoa-Gaytan, 265 F.3d 837, 844 (9th Cir. 2001), and United States v. McKinney, 15 F.3d 849, 853 (9th Cir. 1994), are therefore distinguishable. 5. Uptergrove: Uptergrove’s sentence was substantively reasonable. See United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). The district court carefully considered the 18 U.S.C. § 3553(a) factors and imposed a reasonable sentence below the low end of the advisory Guidelines range. AFFIRMED. 5	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION DEC 02 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EDELIO CAMPOS HERNANDEZ, No. 11-70935 Petitioner, Agency No. A092-801-953 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 19, 2013** Before: CANBY, TROTT, and THOMAS, Circuit Judges. Edelio Campos Hernandez, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184- 85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review. Even if Campos Hernandez’s asylum application was timely, substantial evidence supports the agency’s finding that his past experiences in Guatemala, including the incident in which police once hit him in the chest with a rifle, did not rise to the level of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003). Substantial evidence also supports the BIA’s determination that his fear of gang-related crime in Guatemala is not a basis for relief. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). Accordingly, Campos Hernandez’s asylum claim fails. Because Campos Hernandez failed to establish eligibility for asylum, his withholding of removal claim necessarily fails. See Zehatye, 453 F.3d at 1190. Further, substantial evidence supports the BIA’s denial of CAT protection because Campos Hernandez failed to demonstrate it is more likely than not he would be tortured upon return to Guatemala. See Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011). 2 11-70935 Finally, we lack jurisdiction to review Campos Hernandez’s contentions related to an application for permanent resident status because he did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 11-70935	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 10-11642 ELEVENTH CIRCUIT Non-Argument Calendar OCTOBER 15, 2010 ________________________ JOHN LEY CLERK D.C. Docket No. 2:09-cr-00044-WKW-WC-1 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff-Appellee, versus WILLIE JAMES HASLEY, lllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Alabama ________________________ (October 15, 2010) Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Willie James Hasley pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and the district court sentenced him to prison for term of 18 months, at the low end of the Guidelines sentencing range of 18 to 24 months. Hasley appeals his sentence on two grounds. First, the district court erred in refusing to reduce his base offense level of 14 by six levels pursuant to U.S.S.G. § 2K2.1(b)(2) because he possessed the firearm for a lawful sporting purpose. According to Hasley, the court should have granted him the reduction because he was hunting raccoons, a lawful game animal, with a weapon lawful for hunting such an animal and in raccoon hunting season. Second, his sentence is substantively unreasonable because the court improperly considered offenses for which he was arrested but never convicted and his personal characteristics, including the facts that he dropped out of high school in the 11th grade, has an IQ of 51, and has been classified as mildly mentally retarded and as a schizophrenic, mitigated in favor of a lower sentence. I. Section 2K2.1 of the Guidelines applies to firearm offenses, including possession of a firearm by a convicted felon. U.S.S.G. § 2K2.1(a). In relevant part, § 2K2.1 provides that, “[i]f the defendant . . . possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the 2 offense level determined above to level 6.” U.S.S.G. § 2K2.1(b)(2). The commentary to the Guidelines provides that, “lawful sporting purposes or collection [i]s determined by the surrounding circumstances . . . includ[ing] the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant’s criminal history (e.g., prior convictions for offenses involving firearms), and the extent to which possession was restricted by local law.” U.S.S.G. § 2K2.1, comment. (n.6). A district court should review all of these surrounding circumstances when determining the applicability of § 2K2.1(b). United States v. Skinner, 968 F.2d 1154, 1156 (11th Cir. 1992). We find no clear error in the district court’s finding that Hasley did not possess the shotgun and ammunition “solely for lawful sporting purposes.” As an initial matter, the evidence regarding Hasley’s hunting violations under Alabama law and additional prior hunting violations was undisputed. Although Hasley argues that, in applying § 2K2.1(b), a court should focus primarily on the lawfulness of the sporting activity, including whether the game hunted could lawfully be hunted, whether the firearm possessed could be used to hunt that game, and whether the game was in season, the Guidelines expressly requires the court to consider a broader list of factors, including “the number and type of 3 firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant’s criminal history (e.g., prior convictions for offenses involving firearms), and the extent to which possession was restricted by local law.” U.S.S.G. § 2K2.1 comment. (n.6). Because Hasley’s interpretation would have required the court to ignore a number of relevant circumstances listed in the Guidelines, his argument fails. Hasley was cited for, and pled guilty to, several Alabama hunting violations committed while he was possessing the shotgun, including hunting and trapping without a license. The undisputed facts demonstrate that his hunting activity was in violation of state law; hence, the court did not err in denying him the § 2K2.1(b)(2) base offense level reduction. II. We determine whether a sentence is substantively unreasonable under the abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 56, 128 S.Ct. 586, 600, 169 L.Ed.2d 445 (2007). Our review is deferential. If, as here, the sentence is within the Guidelines sentencing range, we ordinarily expect that it is reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). When reviewing a sentence for reasonableness, we evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing 4 under 18 U.S.C. § 3553(a)(2). Id. at 788. While a district court is required to evaluate all of the § 3553(a) factors, it is permitted to attach greater weight to one factor over others. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009), cert. denied, 129 S.Ct. 2847 (2009). Thus, a defendant’s personal disagreement with the court’s assessment of one or more of the factors will not be a sufficient reason to vacate as unreasonable a district court’s careful consideration of the § 3553(a) factors. See United States v. Valnor, 451 F.3d 744, 752 (11th Cir. 2006). Hasley has failed to demonstrate that his sentence is unreasonable. The record establishes that the court considered his arguments and all of the § 3553(a) factors, and it sufficiently set forth a reasoned basis for its sentence. His position that the court should not have considered his prior arrests that did not result in convictions, is meritless. Shaw, 560 F.3d at 1232-35, 1239-40. AFFIRMED. 5	{ "pile_set_name": "FreeLaw" }
943 F.2d 51 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.EVA N. and Timothy H. by Eva N., His Next Friend,Plaintiffs-Appellants, Cross-Appellees,v.John BROCK, et al., Defendants-Appellees, Cross-Appellants. Nos. 90-5911, 90-5914. United States Court of Appeals, Sixth Circuit. Aug. 23, 1991. Before RALPH B. GUY, Jr. and DAVID A. NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. DAVID A. NELSON, Circuit Judge. 1 This is a class action in which the plaintiffs allege that the admissions criteria of the Kentucky School for the Blind violate the Education for All Handicapped Children Act (the "Education Act"), 20 U.S.C. §§ 1400 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and/or the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 2 The district court entered a judgment holding that the admissions criteria, although not invalid on their face, must yield to actions taken under the administrative regulations adopted by Kentucky pursuant to the Education Act. The plaintiffs appeal the district court's refusal to find the criteria invalid on their face. Certain of the defendants cross appeal, arguing that in any case where a state educational agency is able to provide an alternate placement that it considers appropriate, the regulations should not be allowed to trump the admissions criteria. For the following reasons, we shall affirm the judgment of the district court. 3 * Under the Education Act and the federal regulations adopted under it, a state that receives federal money to educate handicapped children must furnish each handicapped child a "free appropriate public education" regardless of the severity of the child's handicap. See Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 181 (1982). The district court found that Kentucky receives substantial money under the Education Act. 4 The "centerpiece of the [Education Act's] education delivery system" is the "individualized educational program." Honig v. Doe, 484 U.S. 305, 311 (1988). In Kentucky, such a program is developed for each handicapped child by a local "admissions and release committee" comprised of the child's parents, teacher, and various education professionals. See 20 U.S.C. § 1401(a)(20) (1990); 34 C.F.R. § 300.344 (1990); 707 Ky.Admin.Regs. 1:051, § 3 (1988). Each individualized educational program--IEP for short--must, among other things, set out the child's current educational performance, establish goals for improvement, and describe the specific instruction and services to be provided the child in pursuit of those goals. 34 C.F.R. § 300.346 (1990). 5 If any party is dissatisfied with the IEP, the Education Act requires the state to provide "an impartial due process hearing." 20 U.S.C. § 1415(b)(2) (1990); 34 C.F.R. § 300.506 (1990); 707 Ky.Admin.Regs. 1:060 (1988). In Kentucky such hearings are conducted by a hearings officer with a right of appeal to the Kentucky Exceptional Children Appeals Board pursuant to 20 U.S.C. § 1415(c) (1990) (see 707 Ky.Admin.Regs. 1:080 (1988)). Review of Appeals Board decisions may be obtained in federal district courts. 20 U.S.C. § 1415(e)(1) (1990); 34 C.F.R. § 300.511 (1990). 6 The Kentucky School for the Blind is the only public school in Kentucky that offers a residential program for visually impaired children. The school's admissions criteria exclude children who, among other things, require extensive medical care or lack toilet training and the ability to feed and bathe themselves. See 707 Ky.Admin.Regs. 1:110, § 3(4) (1988). 7 Timmy H. is a blind nine-year-old who is also mentally handicapped and lacking in various self-help skills. The admissions and release committee that developed Timmy's IEP recommended a residential placement at the Kentucky School for the Blind. Because he did not meet the admissions criteria, the school refused to accept him. Timmy's mother requested "a due process hearing," but the Kentucky Department of Education, relying on an opinion from the Kentucky Attorney General's Office, stated that the hearings officer would be without authority to recommend placement at the school. Through his mother, Timmy then brought a class action in district court seeking to have the admissions criteria invalidated. Timmy was admitted to the Kentucky School for the Blind on a temporary basis pending the outcome of this litigation. 8 The district court (Bertlesman, J.) separated the "individual issues" pertaining to the school's suitability for Timmy from the "institutional issues" pertaining to the admissions criteria. The institutional issues were tried to the bench, with the result summarized above. See Eva N. v. Brock, 741 F.Supp. 626 (E.D.Ky.1990). This appeal and cross appeal followed. II 9 We must first decide whether we are foreclosed from reaching the merits of the appeal because of Timmy's already having been admitted to the school or because he failed to exhaust his administrative remedies. 10 Timmy and the class he represents do not seek temporary or provisional admission; they want permanent admission. The school decided, after a 90-day evaluation period, that Timmy does not meet the admissions criteria and will not be accepted on a permanent basis. That decision keeps the controversy very much alive; Timmy's temporary admission did not render the case moot. 11 Timmy's failure to exhaust his administrative remedies does not prevent us from reaching the merits. Although exhaustion of administrative remedies is normally required before a party may take an Education Act dispute to the district court, see Crocker v. Tennessee Secondary School Athletic Association, 873 F.2d 933, 935 (6th Cir.1989), exhaustion is not required if resort to administrative proceedings would be futile. Kerr Center Parents Association v. Charles, 897 F.2d 1463, 1469 (9th Cir.1990). The attorney general's determination that the hearings officer could not grant the relief Timmy requested brings this case within the futility exception. III 12 * The defendants argue that the school need not admit anyone who does not meet its admissions criteria because the Education Act gives states, not local admissions and release committees, the authority to determine appropriate placements in certain situations. The portion of the Education Act relied upon reads as follows: 13 "Whenever a State educational agency determines that a local educational agency-- 14 (1) is unable or unwilling to establish and maintain programs of free appropriate public education which meet the requirements established in subsection (a) of this section; 15 (2) is unable or unwilling to be consolidated with other local educational agencies in order to establish and maintain such programs; or 16 (3) has one or more children with disabilities who can best be served by a regional or State center designed to meet the needs of such children; 17 the State educational agency shall use the payments which would have been available to such local educational agency to provide special education and related services directly to children with disabilities residing in the area served by such local educational agency. The State educational agency may provide such education and services in such manner, and at such locations (including regional or State centers), as it considers appropriate, except that the manner in which such education and services are provided shall be consistent with the requirements of this subchapter." 20 U.S.C. § 1414(d) (1990). 18 The "manner" in which the state agency provides special education services to children with disabilities under § 1414(d) must be determined under procedures consistent with the subchapter in which § 1414(d) is found. This subchapter includes § 1414(a)(5), which provides statutory authority for the committees that devise IEPs (See 34 C.F.R. §§ 300.343 and 300.344 (1990)). It also includes §§ 1415(b), (c), and (e), which provide for administrative and judicial review of IEPs. Section 1414(d) does not allow a state to circumvent these statutory procedures. The constraints that the subchapter places on the power of the state may be unwise, but unless the state is prepared to forego federal funding--which it remains free to do, of course--relief can only be obtained through Congress. B 19 Even though the district court's decision gave the plaintiffs much of what they wanted, they contend that the admissions criteria ought to have been declared invalid on their face. The plaintiffs are especially concerned about a statement by the district court that Kentucky's obligations under the Education Act 20 "may require that some children be placed at [Kentucky School for the Blind], who do not meet its criteria, if such placement is the only way an appropriate IEP can be designed for them." Eva N., 741 F.Supp. at 634 (emphasis supplied). 21 Nothing in Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, or any other statutory or constitutional provision requires us to declare the admissions criteria invalid on their face. In relevant part, Section 504 reads as follows: 22 "No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." 23 Categorical exclusions based on handicaps are not permitted under this language, but the presence or absence of a particular handicap may well be relevant in determining whether a child could benefit from placement at the Kentucky School for the Blind. The criteria, therefore, may be utilized as one means of determining whether placement at the school constitutes an appropriate education for the child concerned. 24 A state may not make classifications on the basis of handicap unless the classifications are rationally related to a legitimate state goal. Cleburne v. Cleburne Living Center, 473 U.S. 432, 442-46 (1985). We have said that a state may not create an "irrebutable presumption which has no reasonable relation to fact." Kelm v. Carlson, 473 F.2d 1267, 1270 (6th Cir.1973). Under the district court's order, the admissions criteria raise no irrebutable presumptions; the criteria may be considered in determining whether a child can benefit from placement at the Kentucky School for the Blind, but they are not controlling. 25 We think that the plaintiffs' concerns about the district court's use of the word "only" are exaggerated. The court did not use this word in the portion of its order requiring the school to yield to the mandates of a child's ultimate IEP, and the admissions criteria cannot be used to exclude a child whose ultimate IEP calls for placement at the school. 26 Accordingly, the judgment of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
Filed 3/21/14 P. v Moore CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C071767 Plaintiff and Respondent, (Super. Ct. Nos. 08F08496, 10F06388) v. ORDER MODIFYING OPINION JESSIE TREVON MOORE, [NO CHANGE IN JUDGMENT] Defendant and Appellant. THE COURT: It is ordered that the nonpublished opinion filed herein on March 10, 2014, be modified as follows. At page 15, amend the last sentence at the end of part V. of the Discussion (just prior to the Disposition), which reads: “We will modify the judgment to reduce the two fines to $200.” to add the following inadvertently omitted footnote 8 so that it now reads: 1 We will modify the judgment to reduce the two fines to $200.8 ____________ 8 In any event, as the concurring opinion properly notes, there could not be a conceivable tactical basis (other than inadvertence) for defense counsel to fail to object to the imposition of a restitution (and parole revocation) fine greater than the minimum in effect at the time of sentencing when the trial court had clearly indicated its intention to impose the absolute minimum fines. While it is true defendant has not asserted on appeal the ground of ineffective assistance of counsel, the People have had the opportunity to address the issue indirectly: They note trial counsel might reasonably have feared incurring an objection from the prosecutor. (The assertion is unavailing; if the prosecutor was inclined to object to a minimum set below the guideline in the statute for a sentence as lengthy as defendant’s, he would have done so in response to the court’s setting the fines at $240.) Given that we are not precluded from reaching an issue of law in the first instance on appeal in the exercise of our discretion (other than the admission or exclusion of evidence (People v. Williams, supra, 17 Cal.4th at p. 161, fn. 6; see People v. Rosas (2010) 191 Cal.App.4th 107, 115), and the People are not caught unawares as a result, we would need to reduce the fine to the correct minimum on this alternative basis. There is no change in judgment. BY THE COURT: ROBIE , Acting P. J. BUTZ , J. MAURO , J. Copies to: All parties 2 Filed 3/10/14 P. v. Moore CA3 (unmodified version) NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C071767 Plaintiff and Respondent, (Super. Ct. Nos. 08F08496, 10F06388) v. JESSIE TREVON MOORE, Defendant and Appellant. A jury found defendant Jessie Trevon Moore guilty of attempted voluntary manslaughter (as a lesser offense of attempted premeditated murder, a gesture of surprising leniency), firing a gun at an occupied car, and being a convicted felon in possession of a gun. It also sustained enhancements that alleged personal infliction of great bodily injury in circumstances of domestic violence and various types of gun use. The trial court found defendant to be in violation of probation in a 2008 case based on the evidence at trial and revoked the order of probation. The trial court sentenced defendant to state prison for an indeterminate life term, with a concurrent prison term for the 2008 drug offense. 1 Although included in his notice of appeal, defendant does not raise any issues regarding the revocation of his probation in the 2008 case. We accordingly deem the appeal of case No. 08F08496 to be abandoned and shall dismiss it. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Regarding his current offenses, defendant contends the trial court erred when it allowed the prosecutor to impeach his testimony with his failure (on advice of counsel) to bring exculpatory facts earlier to the attention of the police; did not instruct sua sponte on lesser offenses in connection with the charge of shooting at an occupied car; improperly instructed the jury with respect to the gun use enhancements; did not adequately reply to a question from the jury; and imposed the wrong minimum amount for the restitution and parole revocation fines. (We have reordered defendant’s arguments to reflect the chronology in which they arose in the trial court.) We shall affirm the judgment in case No. 10F06388 as modified. FACTUAL AND PROCEDURAL BACKGROUND We resolve all explicit evidentiary conflicts in favor of the judgment and presume in its favor all reasonable inferences. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.) “We include this reminder because defendant’s rendering of the facts highlights what he deems to be inconsistencies and credibility issues with respect to the . . . witnesses. . . . [However], the jury resolved these credibility issues against defendant and we are bound by that resolution. Accordingly, we set forth the evidence without defendant’s extensive [emphasis of facts] regarding its reliability.” (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.) Defendant and his girlfriend, T.W., began dating in June 2010, and he had physically abused her on other occasions (the circumstances of which we do not need to detail). Although T.W. initially denied being a victim of domestic violence when she was questioned in May 2011, she reported these incidents to the prosecution in April 2 2012. Defendant and T.W. jointly shoplifted merchandise, returning it to the stores for gift card credit and then selling the gift cards for cash. A couple of days before the shooting, T.W. had just gotten $150 for selling gift cards. On the morning of the shooting, August 12, 2010, defendant and T.W. quarreled in the garage of his mother’s house (where he was living), which became physical after T.W. told him she wanted to end their relationship and he told her to give him all the money she had with her, grabbing for her purse. T.W. broke away from defendant and went into the house. Defendant drove off to the store. After he left, T.W. called a friend for a ride. When T.W. went outside to get in the friend’s car, she encountered defendant and another fight ensued when he tried to prevent her from leaving. The friend drove off. The fight continued until defendant’s mother intervened and agreed to drive T.W. to her friend’s home. T.W. sat in the locked car while waiting for defendant’s mother to retrieve something she had left inside. Defendant shouted that he was going to shoot T.W. in the head and kill her. Defendant followed them to a gas station with his brother and cousin. When defendant’s mother went into the store to pay for gas, defendant again came up to the car and threatened to shoot and kill T.W. When defendant’s mother returned, defendant told her that T.W. owed him money. Defendant’s brother got into the car with the mother and T.W., and they drove to the home of T.W.’s friend without further incident. Defendant phoned T.W. later in order to inform her that his brother had told him where she was staying. T.W. decided to go shopping with her friend, her friend’s sister, and her friend’s mother. When the group went to get into the friend’s car, they1 saw defendant’s car 1 The friend did not testify. 3 across the street; T.W. and the sister saw defendant sitting in the driver’s seat with other people in the car, one of whom T.W. recognized as defendant’s cousin. As the friend drove off in her car, defendant drove his car at an angle toward the passenger side, where T.W. was sitting. The friend stopped the car down the block because she was afraid defendant was going to run into them. T.W. and the sisters’ mother testified that defendant shouted for T.W. to get out of the car and give him his money. T.W. and the sisters’ mother saw defendant aiming a gun at T.W. The sisters’ mother testified that the gun “started shooting.”2 T.W. turned away and heard several shots, the first of which struck her in the shoulder. The sister did not see who was shooting, and dropped to the floor after the first shot. The bullet fractured T.W.’s shoulder blade and C7 vertebra, and bruised her lung. As the friend tried to flee down the street in her car, her sister and mother could hear more shots being fired from behind them. The rear window of their car shattered, and the friend stopped the car. When she started to move the car again, defendant’s car drove past them one more time and the shooting resumed. Defendant’s car then drove off. Seven months later, in March 2011, defendant was arrested in Redding; according to the probation report, police saw him leaving the area of a possible car burglary and he resisted the officers, at which point they found a gun in his backpack. He entered a plea inter alia to being a convicted felon in possession of a gun, and was sentenced to state prison. Forensic testing could not connect this gun with the one used in the shooting. This gun had a “King Cobra” emblem on it; T.W. had seen a gun in defendant’s possession three or four times, which resembled the gun he used in the shooting, but she did not remember it having this emblem. 2 In her initial statement to the police, the sisters’ mother said she saw defendant fire the gun. However, at the preliminary hearing, she said she saw the gun in the driver’s hand and then ducked without seeing who actually fired the shots. 4 Defendant testified. He had given money to T.W. to get an apartment, and wanted it back but she refused. He had been driving the car, but it was his cousin (who was sitting behind him in the back seat) who fired the shots from the car out of pique because T.W. had sold the cousin a gift card that did not have any balance on it and would not return his money. Defendant had his own gun in the car, but never aimed or fired it. He had not been aware his cousin had also been carrying a gun. Defendant drove to the home of his great-grandaunt3 and dropped off his cousin. He never saw the cousin in person again. Later that day, defendant got a ride to Redding, where he remained (except for visits to Sacramento) until his arrest and conviction for the unlawful possession of the gun. (We will incorporate additional facts relating to his testimony in the Discussion). DISCUSSION I. The Impeachment Testimony Was Proper Toward the end of his cross-examination, the prosecutor began to ask defendant why he had not called the police after dropping off his cousin at the great-grandaunt’s home immediately after the shooting. Defendant asserted that he was sure someone would report the cousin to the police and did not think it was his place to do so; he did not want to get involved. Defense counsel lodged an ongoing “right to silence” objection, which the trial court overruled. Defendant admitted that he became aware of an October 2010 warrant for his arrest for the shooting when he visited Sacramento in November 2010, but still did not want to get involved and simply hoped the police would catch the right person. He had tried to persuade his cousin over the phone to turn himself in. The prosecutor asked defendant why, if he had returned to Sacramento to “clear his 3 The cousin’s grandmother, making him defendant’s second cousin once removed (to be exact). 5 name,”4 he had never volunteered any information about his cousin’s involvement to Sacramento jail officials while he was awaiting trial in this matter or contact his family to urge the cousin to surrender. Defendant said he had provided this information to defense counsel (at which point the trial court directed him not to testify any further about any conversations with defense counsel about this case). Defendant also stated that he had asserted his innocence generally to jail personnel, but no one ever questioned him about the basis for this claim. In subsequent argument regarding the continuing objection, defense counsel stated that he indeed had told defendant not to speak to anyone regarding his case before trial. Defense counsel thus also objected to the entire line of questioning because defendant could not answer without waiving the attorney-client privilege. The trial court indicated it might agree with this line of argument regarding the point in time after defendant was in custody in Sacramento, but it did not apply beforehand. The court ruled that the earlier period was relevant to the issues of flight and consciousness of guilt, the privilege against self-incrimination was not involved because defendant had not invoked it in the course of any questioning after he was in custody (either in Redding or in Sacramento), and the issue of breaching the attorney-client privilege was not a problem any longer because the jury was now aware defendant had been acting under the advice of counsel5 without the need for any further exploration of defense work product. The court also denied a request for mistrial or admonishment. 4 This was a reference to defendant’s demand in March 2011 to be tried on the present charges (Pen. Code, § 1381; undesignated statutory references will be to this code) after his Redding conviction; he was transferred to the Sacramento County jail in May 2011. 5 This point actually was conveyed only inferentially. Although the trial court had asked defendant a question to this effect in the course of reining in defendant’s testimony on the subject of his conversations with defense counsel, defendant never directly responded; he only reasserted that he had told defense counsel about the cousin and this did not result in anyone asking him about the cousin. 6 On appeal, defendant asserts that we should analogize to the principle of Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle)—which precludes any adverse use of a defendant’s invocation of his privilege against self-incrimination after receiving the advisements prescribed in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] before custodial interrogation—and also preclude adverse use of a defendant’s failure to provide exculpatory evidence of his innocence to authorities before trial on advice of counsel. He concedes the record lacks any evidence that he was ever advised of the privilege against self-incrimination in the course of any custodial interrogation, and thus Doyle does not apply directly. (Fletcher v. Weir (1982) 455 U.S. 603, 605-606 [71 L.Ed.2d 490, 493-494] (Fletcher) [noting also that Doyle does not apply to pre-arrest silence].) He thus argues that because the prosecutor’s questions about his failure to tell anyone about the cousin’s involvement included the period after defense counsel’s appointment in this matter, this was a violation of due process that defendant declares ipse dixit to be prejudicial. In the first place, defendant has forfeited this argument (People v. Homick (2012) 55 Cal.4th 816, 861; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106), as he has failed to elaborate how the purported error could possibly be prejudicial in light of the fact that his failure to make an effort to clear his name—from the time of the crime (August 2010) until appointment of counsel—is admissible under traditional rules of evidence allowing impeachment with silence under circumstances where one naturally would assert a fact. (Fletcher, supra, 455 U.S. at p. 606 [71 L.Ed.2d at pp. 493-494].) In light of this forfeiture, it is sufficient for us to observe that defendant’s analogy fails. The violation of due process in Doyle is premised on the fundamental unfairness of the state promising that a suspect can invoke the privilege against self-incrimination without penalty, and then breaching that promise through using silence to impeach a defendant at trial. (People v. Hughes (2002) 27 Cal.4th 287, 332.) That defense counsel, 7 as a matter of strategy, wishes to keep a client muzzled about alleged exculpatory evidence until trial does not pose a similar unfairness on a fundamental level.6 Defendant also attempts to rely on the Doyle rationale that the irresolvable ambiguity of silence after being advised of the right to remain silent without penalty drains that silence of any rational probative value. (Doyle, supra, 426 U.S. at p. 617 & fn. 8 [49 L.Ed.2d at p. 97 & fn. 8]; People v. Hunt (2011) 196 Cal.App.4th 811, 817 [noting that due process is violated where evidence is admitted that does not give rise to any rational probative value].) However, subsequent holdings have referred to this observation as being mere “added weight” to the core holding premised on fundamental unfairness. (Wainwright v. Greenfield (1986) 474 U.S. 284, 294 [88 L.Ed.2d 623, 632]; see South Dakota v. Neville (1983) 459 U.S. 553, 564-565 [74 L.Ed.2d 748, 759-760].) We therefore reject the claim. II. Instructions on Lesser Offenses Were Not Warranted Regarding the conviction for shooting at an occupied vehicle, defendant argues the trial court erred in failing to instruct sua sponte on the lesser offenses of firing a gun with gross negligence or assault with a gun, because it is possible the jury could have found on the evidence that defendant’s cousin fired the initial shots directly at T.W. and defendant only fired the subsequent shots while the friend was trying to drive her car away from defendant’s car (as defense counsel urged the jury to find). A court is obligated to instruct on lesser offenses only where there is substantial evidence that a defendant is guilty only of the lesser offense but not the greater, i.e., where reasonable persons could conclude that the facts establish only the lesser offense. 6 People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520, involving a defendant who had received advisements and then refused to talk to a private party on advice of counsel is not apposite, nor does it provide any persuasive explanation why the advice of counsel to remain silent should be a factor playing any role in determining whether a defendant’s silence with a private party after advisements comes within the protections of Doyle. 8 (People v. Wyatt (2012) 55 Cal.4th 694, 704.) Speculation is insufficient to establish substantial evidence. (People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Herrera (2006) 136 Cal.App.4th 1191, 1205 [inference cannot flow from nonexistence of a fact, must be affirmative evidence].) As the People correctly assert, the record lacks any substantial evidence that there was any victim other than the occupants of the friend’s car, and therefore substantial evidence does not support an instruction on assault with a gun. Defendant does not have any cogent response to this argument other than to assert the People did not cite any authority for this proposition. No authority is required other than the element of assault with a gun and the evidence at trial. We therefore reject this contention. As for firing a gun with gross negligence, assuming that a jury reasonably could reject the testimony of T.W. and the sisters’ mother that only the driver of the other car was pointing a gun at them before the shots were fired, there is otherwise an absence of any substantial evidence that defendant fired any shots. Defendant testified that only his cousin shot at the victims and fired other shots as defendant drove away, and his own gun remained under the driver’s seat the entire time. Neither the occupants of the friend’s car nor anyone else identified any other person affirmatively as firing any of the shots after the initial series aimed at T.W. It therefore is utter speculation (except by way of inference from the testimony that defendant in fact fired the initial round of shots) that defendant fired the subsequent shots; disbelieving defendant’s testimony does not entitle a trier of fact to infer the opposite of the testimony. (People v. Drolet (1973) 30 Cal.App.3d 207, 217; People v. Samarjian (1966) 240 Cal.App.2d 13, 18.) Defendant again does not have any cogent response to this evidentiary lacuna. We accordingly reject this contention as well. 9 III. The Trial Court Properly Responded to the Jury’s Question A little more than an hour after retiring to deliberate, the jury requested to have a readback of the testimony of the sister and her mother, which the jury then heard on the following morning. About an hour after the completion of the readback, the jury sent the following question to the trial court: “We would like to know whether the fact that no one actually saw the gun go off is enough reasonable doubt.” Pursuant to the stipulation of the parties (which allowed for a response in writing without reconvening after notice to counsel and the opportunity for input), the trial court proposed the following reply, which the clerk sent to counsel by e-mail: “That is a question for you to decide, not the court. Please refer to the definition of reasonable doubt . . . .” Defense counsel asked that the court also refer the jury to the provided instruction on the use of circumstantial evidence to prove intent or mental state, in particular the requirement that the jury must be convinced beyond a reasonable doubt about any underlying facts before it can rely on circumstantial evidence to establish a fact necessary to a conviction. The court declined the request and delivered its response to the jury in the form it had originally proposed. The jury returned its verdicts about a half-hour later. In an argument headed, “The Trial Court Failed to Adequately Answer the Jury’s Question During Deliberations About the Fact No Witness Actually Observed the Firing of the Gun” (italics added), defendant asserts two arguments. The first is the express subject of the heading: Because the jury’s inquiry implicated the use of circumstantial evidence, the trial court erred in simply referring the jury to the general concept of reasonable doubt. The second is the claim that the court erred in failing to instruct sua sponte with the general pattern instruction on the use of circumstantial evidence, because the jury would not otherwise understand that the principles in the mental state instruction—in particular, that equivocal circumstantial evidence must be interpreted in a defendant’s favor—applied to any circumstantial proof of an essential fact (a point 10 People v. Rogers (2006) 39 Cal.4th 826, 885 (Rogers) makes, which defendant does not cite). To address defendant’s first argument, while section 1138 imposes a duty on a trial court to respond to jury inquiries, where the instructions are otherwise complete the court has discretion to fashion a response to jury questions about applying them to the evidence; however, even if the court abuses its discretion, a defendant must demonstrate prejudice. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) A deviation from the pattern instructions is “risky” (ibid.), especially where an inquiry indicates the jury is focusing on a particular issue; at that point, the court must avoid giving an appearance of advocacy. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) In jurisdictions other than California, the instruction on the general concept of reasonable doubt is sufficient guidance for the jury in applying it to the specific context of circumstantial evidence. (Holland v. United States (1954) 348 U.S. 121, 139-140 [99 L.Ed. 150, 166] [“better rule” is that instructing circumstantial evidence must point unequivocally to guilt “is confusing and incorrect” where jury adequately instructed on standards for reasonable doubt]; Rogers, supra, 39 Cal.4th at p. 886; see People v. Magana (1990) 218 Cal.App.3d 951, 955, fn. 2 [“large number of jurisdictions” do not require special instruction on circumstantial evidence where proper instructions on reasonable doubt included].) The trial court can hardly be considered to have abused its discretion where it fashioned a response that would have the approval of the high court or a substantial number of other jurisdictions; where the inquiry was in effect asking for a quantitative measure of reasonable doubt, the trial court needed to tread carefully. Nor, for that matter, has defendant articulated prejudice. The only circumstantial evidence at issue established that only defendant was seen with a gun pointed at the victim and the car. (Defendant’s testimony is direct evidence to the contrary and thus not part of the calculus.) The inference he actually fired the shot is thus the only rational one that a reasonable juror 11 could draw from this evidence. It is as if defendant were seen leaning over a roof with a potted plant, and a victim was found directly afterward on the sidewalk below with a shattered skull and the plant next to him. Accordingly, we reject this claim. Initially, defendant’s other claim appeared to be a “lurking” argument (i.e., one that does not have any logical connection with the heading), which would forfeit our duty to give a plenary response to it. (Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 593, fn. 10; Smith v. City of Napa (2004) 120 Cal.App.4th 194, 202.) However, as his reply brief makes clearer, it is a subsidiary argument that the instructions were not otherwise complete. While a trial court has a duty to give the general instruction where the prosecution case rests substantially on circumstantial evidence, a court should not give the instruction where the circumstantial evidence is not equivocal but rather is convincing evidence of a defendant’s guilt. (People v. Heishman (1988) 45 Cal.3d 147, 167; cf. People v. Honig (1996) 48 Cal.App.4th 289, 341[same principle applied to mental state circumstantial evidence instruction].) The instructions were thus complete and, in any event, the lack of this instruction could not possibly be prejudicial to defendant for the same reasons we have previously stated. We therefore reject this argument as well. IV. The Enhancements Must Be Stricken The instructions allowed the jury to sustain allegations of alternative gun use enhancements (use, firing, and firing with great bodily injury under § 12022.53, subds. (b), (c) & (d), respectively) as to both the charge of attempted voluntary manslaughter and the charge of firing a gun at an occupied car. However, attempted voluntary manslaughter is not a predicate offense for any subdivision of the statute (see id., subd. (a)), and firing a gun at an occupied car comes within only subdivision (d). Defense counsel called the error to the trial court’s attention in connection with the conviction for attempted voluntary manslaughter. The trial court directed the court clerk 12 to omit the enhancements as to that count in the abstract of judgment, and to reflect in the minutes that the court was striking the enhancements with a “clarification” that defendant was in fact armed during the commission of the offense.7 In connection with defendant’s conviction for shooting at an occupied car, the minutes and abstract show the court stayed (under § 654) enhancements pursuant to section 12022.53, subdivisions (b), (c), and “(e),” imposing only the enhancement pursuant to subdivision (d) of the statute. Defendant maintains that we should “reverse” the invalid section 12022.53 findings for both convictions, initially ignoring the fact that the trial court already struck three of them (and then unaccountably asserting in his reply brief that we should ignore the sentencing proceedings). The People properly concede the invalidity of these findings, pointing out that further ameliorative action is unnecessary with respect to the conviction for attempted voluntary manslaughter. Neither party discusses the error in the minutes and abstract of judgment that identifies a stayed enhancement of count two pursuant to section “12022.53(e)” rather than the actual finding pursuant to section 12022.7, subdivision (e). We therefore will modify the judgment to strike the two stayed findings under section 12022.53 on count two. We will direct the trial court to amend its minutes and the abstract accordingly, and also to amend them to reflect a stayed enhancement in count two pursuant to the correct statute, section 12022.7, subdivision (e). V. The Restitution and Parole Revocation Fines Must Be Reduced Defendant maintains that we must reduce the restitution and parole revocation fines to $200. The People contend this issue is forfeited on appeal because defendant did 7 Defendant does not raise any argument regarding the inclusion of this “clarification” in the minutes (to which defense counsel objected), and therefore forfeits any claim of error. 13 not object at sentencing. We disagree that the issue is forfeited and agree that we must modify the judgment to reduce the fines. At the time of defendant’s offenses in August 2010, the minimum restitution fine a trial court could impose pursuant to section 1202.4 was $200. (Former § 1202.4, subd. (b) [as amended by Stats. 2009, ch. 454, § 1].) Effective 2012, the minimum was $240. (See § 1202.4, subd. (b)(1) [also scheduling increases to $280 in 2013 and to $300 for 2014].) The probation report recommended that defendant pay a $10,000 restitution fine (and parallel parole revocation fine). However, at sentencing, the trial court stated, “I’m going to order that [defendant] pay a restitution fine under [section] 1202.4 in the amount of $240. I’m going to give him the minimum. He’s getting a life sentence and I don’t know when he’ll be released, if at all. The chances of paying this back are rather remote, and I think that’s one thing I can do and I’m willing to exercise my discretion in that regard. [¶] I’m going to impose the same amount under [section] 1202.45 . . . .” (Italics added.) The probation report reflects a handwritten strikeout of the recommended $10,000 figure, and contains handwritten figures in the margin of “200” and “240.” We thus find that the trial court intended to impose the minimum possible restitution fine as an act of leniency. Because this statute is considered punishment for purposes of ex post facto analysis (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248 (Valenzuela)), the minimum fine in effect at the time of defendant’s offenses was controlling (see John L. v. Superior Court (2004) 33 Cal.4th 158, 182, citing Lindsey v. Washington (1937) 301 U.S. 397, 400 [81 L.Ed. 1182, 1185] (Lindsey) [cannot increase minimum punishment after commission of offense]). Defense counsel failed to raise this issue at the time of sentencing. However, this was an unauthorized sentence, i.e., one that “could not lawfully be imposed under any 14 circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) While the $240 restitution fine is within the lawful discretionary statutory range of the present statute, the trial court announced an intention to impose the minimum fine, and the only lawful minimum fine that could be imposed constitutionally under any circumstance was the $200 amount in effect at the time of defendant’s offenses. (Lindsey, supra, 301 U.S. at pp. 400-401 [81 L.Ed. at pp. 1185-1186] [cannot impose new minimum of 15 years under statute as amended after commission of offense, even if sentence was within range authorized under former statute]; cf. Valenzuela, supra, 172 Cal.App.4th at p. 1248 [even though sex offender fine was amount presently authorized under statute, it was in excess of amount in effect at time of offense and thus constitutionally unauthorized for purposes of ex post facto principles; issue thus could be raised initially on appeal].) As a result, the $240 fine was a constitutionally unauthorized minimum fine under any circumstances and defendant did not forfeit the issue. We will modify the judgment to reduce the two fines to $200. DISPOSITION The appeal in case No. 08F08496 is dismissed. The judgment in case No. 10F06388 is modified to strike the stayed enhancements (§ 12022.53, subds. (b) & (c)) on count two, and to reduce the restitution and parole revocation fines to $200. As thus modified, the judgment is affirmed. The trial court shall prepare an amended minute order and abstract of judgment both reflecting these changes in the judgment and also specifying that the other stayed enhancement on count two (§ 12022.53, subd. “(e)”) is in fact pursuant to section 12202.7, subdivision (e). The trial court shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. BUTZ , J. 15 Robie, J. and Mauro, J., concurring: We concur with parts I through IV of the majority opinion. Regarding part V, we concur in the result, but we disagree with certain portions of the analysis. We disagree with the statement in part V that imposition of the $240 restitution fine and the $240 parole revocation fine constituted an unauthorized sentence. The $240 amount was within the lawful statutory discretionary range at the time of defendant’s offenses. (Former Pen. Code, § 1202.4, subd. (b) [as amended by Stats. 2009, ch. 454, § 1].) Therefore, it would not be accurate to say that the $240 fines “ ‘could not lawfully be imposed under any circumstance in the . . . case.’ ” (People v. Smith (2001) 24 Cal.4th 849, 852 [defining “ ‘ “unauthorized sentences” ’ ”].) Because the sentence was not unauthorized, and because defendant did not object to the amount of the restitution fine and parole revocation fine in the trial court, his challenge to the amount of those fines is forfeited. (People v. Smith, supra, 24 Cal.4th at p. 852 [claims raised for the first time on appeal regarding the trial court’s failure to properly make discretionary sentencing choices are not subject to review].) Nonetheless, “[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party.” (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Whether or not it should reach the question is entrusted to its discretion. (Ibid.) On this record we conclude that, in the interests of justice and judicial economy, it is appropriate for us to exercise our discretion to address his challenge to the amount of the fines notwithstanding defendant’s forfeiture. As the majority opinion explains, although defendant did not assert ineffective assistance of counsel in this appeal, the record establishes that the trial court clearly intended to impose the minimum fine, and was simply mistaken regarding the applicable minimum. It is likely the trial court would have imposed the correct minimum if it had been so informed, and there was no justifiable reason for defendant’s trial counsel not to 1 inform the trial court of the correct minimum amount. We agree that the restitution fine and parole revocation fine should be modified from $240 to $200. We concur: ROBIE , Acting P. J. MAURO , J. 2	{ "pile_set_name": "FreeLaw" }
Supreme Court No. 2011-364-C.A. (P1/90-250A) (P1/90-248A) (P1/90-247A) (P1/90-246A) (P1/89-1667A) (P1/89-941A) (P1/87-2828A) (P1/87-482A) State : v. : Robert Raso. : NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222- 3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court No. 2011-364-C.A. (P1/90-250A) (P1/90-248A) (P1/90-247A) (P1/90-246A) (P1/89-1667A) (P1/89-941A) (P1/87-2828A) (P1/87-482A) State : v. : Robert Raso. : Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ. OPINION Chief Justice Suttell, for the Court. The defendant, Robert Raso, appeals from eight Superior Court judgments of conviction declaring him to be in violation of the terms of his probation and sentencing him to serve twenty-five years of previously imposed suspended sentences. On appeal, the defendant argues that the complaining witness’s testimony was inconsistent and not credible, and that, therefore, the hearing justice acted arbitrarily and capriciously in finding a violation. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. I Facts and Procedural History In 1990, defendant pled nolo contendere to twenty-six offenses, including: felony assault, second-degree sexual assault, kidnapping, assault with intent to commit murder, arson, and a number of robberies. On the one arson and eight robbery charges, he was sentenced to forty -1- years at the Adult Correctional Institutions (ACI), consisting of twelve years to serve and twenty-eight years suspended, with probation. On March 8, 2011, the state filed a probation-violation report pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure 1 alleging that defendant had failed to comply with a specific term of his probation by failing to keep the peace and be of good behavior. 2 In its violation report, the state noted that “[s]aid violation of probation is not contingent upon any specific criminal offense.” It was, however, based upon allegations of sexual assault; 3 the complaining witness was defendant’s fourteen-year-old stepdaughter, Natalie. 4 A combined probation violation and bail hearing was conducted over the course of five days in the Superior Court, commencing on March 22, 2011. Thirteen witnesses testified during the hearing regarding Natalie’s allegations of sexual abuse, the most recent of which had occurred on March 6, 2011. As the sole issue raised by defendant on appeal concerns the credibility assessments of the hearing justice, we set forth the testimony of the various witnesses in some detail. 1 Rule 32(f) of the Superior Court Rules of Criminal Procedure provides as follows: “The court shall not revoke probation or revoke a suspension of sentence or impose a sentence previously deferred except after a hearing at which the defendant shall be afforded the opportunity to be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing. Prior to the hearing the State shall furnish the defendant and the court with a written statement specifying the grounds upon which action is sought under this subdivision.” 2 The probation-violation report was filed with respect to only the arson and eight robbery convictions. 3 A criminal complaint was filed charging defendant with one count of first-degree sexual assault. On September 20, 2011, the first-degree sexual assault case was dismissed under Rule 48(a) of the Superior Court Rules of Criminal Procedure. 4 Because the complaining witness is a minor child, we identify her pseudonymously. -2- The Neighbor The defendant’s next-door neighbor, Felicia Barbato, testified that she called the Department of Children, Youth and Families (DCYF) on several occasions regarding incidents “that [she] heard inside [her neighbor’s] house that [were] disturbing enough to provoke [her] to call DCYF.” Barbato testified that she reported hearing Natalie “screaming, begging him to stop, go away, stop touching me.” The last call Barbato made to DCYF was on the morning of March 6, 2011, when she reported that she heard Natalie crying and yelling. During her testimony, Barbato indicated that she is on probation herself for several offenses, including forgery and larceny, and that she and defendant did not get along. The Complaining Witness The complaining witness, Natalie, testified that on the night of March 5, 2011, she went to bed around 10 or 10:30 and then texted defendant to ask him to bring her a milkshake, which he did. She further testified that she woke around midnight or 12:30 on March 6 to find that defendant had entered her room and climbed into bed with her. Natalie stated that defendant removed her pajama bottoms and touched her chest and her vagina with his hands and his mouth. She recalled that defendant had first touched her chest and “made out” with her when she was “nine or ten” and that the sexual conduct, including contact 5 with his penis, occurred on “more than ten” occasions prior to March 6. 6 5 Natalie testified that she had oral contact with defendant’s penis; and stated that, while she did not deny telling the Child Protective Investigator that defendant had penetrated her with his penis, she did not remember what she told the investigator. 6 During Natalie’s testimony, the hearing justice granted a short recess and, before resuming testimony, stated the following: “I think it’s important that the record reflect, as it certainly can’t when it doesn’t reflect with words, the difficulty with which this witness had prior to the recess in giving her testimony. There were long pauses between the answers and, in addition, she was -3- Natalie testified that she had previously told her two best friends, Riley and Sarah, that defendant had molested her, and that, after he left her room that night, she texted them the message “I can’t do this anymore.” 7 Natalie recalled going out to breakfast with her mother, her sister, and defendant the next morning, where she received text messages from both Riley and Sarah, urging her to get help and tell someone. She recalled crying while reading these messages. Natalie testified that she did not tell her mother then because “she wouldn’t believe me and I didn’t want all this to happen.” After breakfast, the family stopped to buy paint before returning to their home. Shortly after they returned, a DCYF caseworker, Ann Murphy, arrived at the apartment and questioned Natalie. This interview resulted in defendant being removed from the home. Natalie testified that on the evening of March 10, she was brought to the basement of her mother’s friend’s home and questioned there for about three and a half hours by her uncle, Ian Sateikis, her mother’s friend Heather Burlingame, and, finally, her mother. 8 Throughout a more than three-hour barrage of questions and accusations that she was lying, during which her mother told her that she was “a f * * * ing liar” and that defendant would “die in jail,” Natalie maintained that her stepfather had molested her. Natalie recalled that Burlingame told her that extremely tearful and shaking and was presenting this testimony in the largest courtroom in the building in front of an unusually large audience. Certainly their right to be here, I’m not suggesting otherwise, but I do feel that based on what I observed prior to the recess and part of the reason I took the recess as requested is that this witness, albeit 14 years old, does not present as someone who, of that age, who may be able to handle everything that comes their way and appeared to me to be suffering unreasonable and unnecessary emotional harm in giving this testimony and I just want the record to be clear.” 7 No text messages were entered into evidence, and there was testimony that the text messages had been deleted. 8 Burlingame, at whose residence these events took place, did not testify. -4- Natalie herself could be prosecuted. Eventually, however, Natalie told her mother “it wasn’t true.” She testified that she did so because her mother did not believe her, and that once she recanted, the questioning stopped. The following day, March 11, Natalie gave a statement to the Burrillville police in which she again stated that “it wasn’t true.” Natalie testified that she did so “[b]ecause [she] wanted it to be over.” The Young Friends Natalie’s friend Riley testified that in September 2010, Natalie divulged that “her stepfather had been raping her since she was in [s]ixth [g]rade.” Riley testified that Natalie did not tell her any details and that “[she] didn’t want to know.” Riley testified that she never told anyone about this because Natalie asked her to promise not to tell anyone. The next witness was Sarah, who testified that she was in the seventh grade when Natalie first told her that defendant was molesting her and that he had been doing so since she was nine years old. Sarah recalled that Natalie made her promise to keep it a secret, so that her younger sister would not “get taken away” or “go through life without her father.” Sarah stated that she kept this promise and did not tell anyone. Sarah testified that on March 6, Natalie texted her that defendant “drugged her, put duct tape over her mouth and raped her.” According to Sarah, the text was deleted when the battery fell out of her phone. Natalie denied ever texting Sarah that defendant drugged her and duct-taped her mouth. The Uncle Ian Sateikis, Natalie’s uncle, was the next witness to testify. Sateikis lives in Illinois, and his sister, Penelope Edwards, is married to defendant. Sateikis testified that, after his sister called and told him that Natalie “had made allegations towards [defendant],” he drove to Rhode -5- Island. Sateikis recalled that his sister asked him to talk to Natalie “to find out what was going on and if she was telling the truth.” On the evening of March 10, according to Sateikis, he took Natalie, along with Burlingame, to the laundry room in Burlingame’s house. He testified that Edwards gave him a digital recorder, and, rather than place it on the table in front of Natalie, he put it in his sweatshirt pocket and, half an hour into the questioning, he pressed the record button while the recorder was still in his pocket.9 After the initial two hours of questioning Natalie, Sateikis testified, he returned upstairs to speak to Edwards, telling her, “I don’t think we’re going to get anything.” Upon returning to the basement, Edwards began to question Natalie for “45 minutes, half an hour,” according to Sateikis, while he and Burlingame remained in the room with them. Sateikis characterized the tone of “that 45 minutes” as “[s]ort of like an interrogation style,” and he testified that Natalie’s demeanor was silent at first, but that she started “getting more frustrated,” “more upset” and that she was crying and her voice was “shaky.” He testified that, at some point, Edwards’s friends Jessica Lohrke and Jennifer Desper came into the room, but that some of that session was not recorded. Sateikis testified that he left the room for a period of time and that, when he returned, Edwards wanted to speak to Natalie alone, so he left, along with Burlingame, Lohrke, and Desper. He testified that twenty to thirty minutes later, Edwards came out with her arm around Natalie saying, “[Natalie] told the truth, that she lied.” Sateikis further testified that on March 15 he went to the Burrillville Police Department to make a statement and that, after meeting with Sergeant Riendeau, he “kind of looked back at the conversation [he] had with [Natalie] that Thursday and [he didn’t] think [he] did the right 9 The CD of this recording was admitted into evidence as joint exhibit No. 1. -6- thing.” He recalled being “angry at [him]self,” and he testified that he did not think he “really knew fully what was going on at first and [he] shouldn’t have talked to her like that.” After leaving the police station, Sateikis testified, he spoke to Natalie and apologized, saying, “I shouldn’t have done that and I should have listened to her and I asked her if what she had said happened to her happened.” Sateikis testified that Natalie said “yes,” and told him that she recanted because “she thought it would be over faster and her mom wouldn’t believe her anyway.” Sateikis then called Sgt. Riendeau and returned to the police station to make another statement. The Probation Officer The defendant’s probation officer, Kerri Giorgio, testified that defendant had been on unsupervised probation, but that on January 19, 2011, due to information brought to her attention, his status was changed to supervised probation. In accordance with that change in status, defendant met with Giorgio in her office on February 28, 2011. During this meeting, defendant showed Giorgio some pictures of his family; and when she commented about a resemblance between Natalie and her mother, defendant responded, “oh, yeah, she really started developing there.” Giorgio testified that the comment was “a little upsetting” to her and that she made a note of it and brought it up to her supervisor. The Child Protective Investigator Ann Murphy, Child Protective Investigator (CPI) for DCYF, testified that on March 6, 2011, she received a call through the child-abuse hotline concerning Natalie’s household. In familiarizing herself with DCYF records, Murphy noted that there had been two other calls to the hotline regarding the residence: one in January and one on March 1, 2011. According to Murphy, no investigator was dispatched in response to either of the earlier calls. Murphy -7- testified that she contacted Burrillville police and arranged to have an officer meet her at defendant’s home. Murphy testified that she arrived at the home in the early afternoon and, after identifying herself as a CPI, asked to speak with the children. She first spoke with Natalie’s four-year-old sister, Katy 10 and, after she satisfied herself with regard to Katy, Murphy interviewed Natalie. After conversing briefly, Murphy stated that she told Natalie that she was there because there were concerns that Natalie was being abused by defendant. According to Murphy, Natalie began crying “very hard,” and, in answer to direct questions, affirmed that her stepfather, defendant, had touched her without her consent and that the last time this had occurred was the previous night. Murphy testified that, in response to further direct questions, Natalie stated that defendant put his penis in her mouth, penetrated her vagina, and put his mouth to her vagina. Murphy further testified that Natalie stated that the sexual contact had been going on for four years, since she was nine years old, and that it happened “about once a week over four years.” Murphy explained that, as a CPI, her purpose was to find out if abuse had taken place and, if so, to protect the child; she did not attempt to gather full details during an initial interview, leaving that task to Day One. 11 Murphy testified that the interview with Day One was scheduled to take place on March 11, 2011. Murphy testified that she “made it clear to [Edwards] at that time we expected her to protect her child, not speak with her about the case” because “the child was clearly very upset 10 Again, a pseudonym. 11 According to Murphy, “Day One is a center in Rhode Island that is used for rape victims, for any children who had been sexually abused * * * they do interviews with the police, with the Attorney General’s office and with DCYF to ask children questions so they only have to ask the detail one time with everyone present as opposed to being asked over and over and over again.” -8- and needed to be spoken to in a place where the counselor is there, the professionals[] that could process what had taken place.” Murphy testified that she informed the Burrillville police officer that Natalie had disclosed sexual abuse, and the officer removed defendant from the home. According to Murphy, she then sat down to speak with Edwards and told her what Natalie had said happened. Murphy testified that Edwards’s immediate response was that “she wanted to be sure it was true, for [Natalie] and [defendant] did not get along.” According to Murphy, Natalie was then taken to the hospital for an examination, and a rape kit was performed. According to Murphy, the following day, after police had removed the sheets from Natalie’s room, Edwards called Murphy to tell her that, if there was hair found in the sheets, it could be from defendant, because he slept there Friday night. Murphy testified that Edwards also mentioned that she had taken away Natalie’s cellphone. Murphy testified that she told Edwards that, while it was appropriate to monitor telephone, texting, and Facebook, she should give Natalie the phone back because taking it away could be viewed as punishment of the child for disclosing abuse. The next day, March 8, according to Murphy, Edwards stated that, if sperm were found in the sheets, it could be because defendant had “done something with himself on the bed.” Murphy testified that Natalie lived in the house until March 16, when she (Murphy) met with Natalie again about concerns that her mother was not protecting her. “She stated that she did not want to live with her mother, that over the past since I had met with her that her mom has asked her several times what had happened, that her mom told her she was lying, that her sister [Katy] wouldn’t have a father because of what she has said. She stated that her phone had been taken away and -9- given to the police. Her computer had been taken away and given to the police.” 12 Murphy testified that she then met with Edwards and told her she was removing Natalie from the home. According to Murphy, Edwards responded that she did not believe Natalie’s disclosure that she had been abused. Natalie was placed with her grandparents. The Forensic Biology Lab Supervisor The next witness to testify was Cara Lupino, supervisor of the forensic biology lab at the Department of Health. Lupino stated that her lab examines evidence in cases of violent crimes and sexual assaults and that, in this case, she examined the rape kit and the samples taken from the bedding in Natalie’s room. Lupino testified that the oral and vaginal swabs in the rape kit tested negative for the presence of seminal fluid. She further testified that state’s exhibit No. 4, a black and white comforter from Natalie’s room, tested positive for seminal fluid and had sperm cells present in the stain. Lupino testified that the DNA profile of the comforter stain matched the DNA profile of defendant’s reference sample. 13 Finally, Lupino testified that a test of state’s exhibit No. 5, the bedsheet from Natalie’s bed, revealed seminal fluid but no sperm cells; she noted that this is “commonly encountered with males who have a low sperm count or have a vasectomy.” DNA testing, according to Lupino, demonstrated a match to defendant and Natalie, as well as potentially to a third person. In her testimony, Lupino noted that DNA is contained in skin cells and “potentially anybody who had contact with an item could leave skin cells behind.” 12 Edwards admitted that she did take away Natalie’s phone and computer, although there is no indication that they were turned over to the police. According to Edwards, she took away the phone after finding “inappropriate sexting from [Natalie’s] girlfriend.” 13 Regarding the possibility that the DNA profile could match with anyone other than defendant, Lupino stated: “According to the database that we use which is built by the FBI, in the U.S. Caucasian population it is seen in 1 in every 9.37 times 10 to the 16 people which is approximately 93 quintillion people.” - 10 - The Landlord Matthew Stamp, landlord for both Barbato and defendant, was the next witness to testify. Stamp testified that defendant had been his tenant since 2008 and that Barbato had been his tenant for four months. He testified to several complaints he received from each of them about the other, culminating with a plumbing problem in which “a bunch of mail cut up in pieces” was found to be clogging the pipes after there had been allegations of mail theft in the building. Stamp noted that he had received no complaints about defendant prior to Barbato’s tenancy. The Mother’s Friends The next witness to testify was Jessica Lohrke, a friend of Edwards’s who was present at Burlingame’s house on the evening of March 10 when Natalie was being questioned. Lohrke testified that she was present for approximately twenty to thirty minutes during the latter part of the questioning of Natalie, that she did not ask any direct questions herself, and that Natalie “was crying at certain times and she just kind of kept raising her shoulders and didn’t answer questions.” Lohrke testified that she felt “[s]ome of the facts didn’t add up of what [Natalie] was saying; her timeline when things were happening, the way she was acting, the way she was. She just wouldn’t talk.” However, Lohrke admitted that she did not hear the earlier questioning and that her view of whether Natalie was acting “appropriately” would have changed had she known that, earlier, Natalie’s uncle had told Natalie that her stepfather would be killed in jail and that a lawyer would “shred her apart.” The next witness to testify was Edwards’s childhood friend, Jennifer Desper. Desper testified that she was also present on March 10 at the Burlingame house and that she went into the room with Natalie after the girl had been questioned by her mother and her uncle. According to Desper, after she shared her own history of having been the victim of a sexual - 11 - assault, she and Lohrke asked Natalie, “[D]id this happen to you?” and she responded “no.” Desper testified that, when asked why she had made the allegation, Natalie replied, “I just wanted him gone.” Desper testified that, at the time, she was not aware of the tone of the questioning that had taken place immediately prior to her discussion with Natalie. The Mother Natalie’s mother, Penelope Edwards, testified that she has been married to defendant for five years, since Natalie was nine years old. Edwards testified that Natalie’s sister, Katy, has her own bedroom but does not sleep in it. Instead, she sleeps with one of her parents in the master bedroom, and the other parent sleeps in Katy’s room. Edwards further testified that, on nights when Natalie is not at home, she and defendant sleep in Natalie’s bed, because it is bigger. On Friday evening, March 4, according to Edwards, Natalie slept at a friend’s house and defendant slept in Natalie’s bed. Edwards testified that she left her bed and joined defendant in Natalie’s bed where they began to “fool around” before being interrupted by Katy. Edwards testified that she left Natalie’s bedroom, telling defendant, “I’m going back to bed with [Katy], take care of it yourself if you need to, sorry.” Edwards testified that the next evening, the night of the alleged assault, she retired with Katy at around 10:30 p.m. and did not hear anything unusual during the night. Edwards testified that she first suspected her daughter was lying when they returned from the hospital after defendant had been removed from the house and Natalie seemed “floaty and happy.” Edwards testified that her own mother observed this and asked, “Penny, do you think she’s lying?” Edwards stated that she did not feel that Natalie’s story made sense. She testified that Natalie told her, “I’ve been trying [to] get rid of [defendant] for years,” and claimed that Natalie blamed - 12 - defendant for her breakup with her boyfriend. Edwards further testified that she believed Natalie’s friends were encouraging her to lie. Edwards testified that the meeting at Burlingame’s house was intended “[t]o get the truth of what was going on” and that she and her brother taped the questioning “[j]ust to have it, just to hear it, to have it to show what [Natalie] was saying.” Edwards testified that she did not tell Natalie the reason for their visit to Burlingame’s house. According to Edwards, she was angry and aggravated when she questioned Natalie. Edwards admitted that she did not believe her daughter and that she demanded details when she questioned her in the basement. Edwards testified that she yelled at Natalie, saying, “[Y]ou’re such a f * * * ing liar” and that, at one point, Natalie responded “[O]kay, I’m lying, is that what you want to hear?” Finally, Edwards testified, Natalie said, “I lied. I didn’t think it would affect this many people.” The Defendant The final witness at the hearing was defendant. The defendant testified that he and Barbato “argued a few times over several things that had happened,” and that he called the police on several occasions regarding these disputes. The defendant testified that, as a result of the problems he was having with the neighbors, in late February 2011, he decided to move. The defendant testified that he and Natalie had arguments or disagreements over the plan to move and the earlier breakup with her boyfriend. According to defendant, he and Edwards had intimate relations in Natalie’s bed two to four times a month. He went on to testify that Natalie had the largest bed and the largest bedroom in the house. The defendant testified that he and Edwards began to be intimate on Friday evening, March 4, but were interrupted and he later “pleasured himself.” He noted that he had had a vasectomy. The following evening, according to defendant, he brought Natalie a - 13 - milkshake as she had requested, but he stated that he left the room, spent time on the computer and then went to bed in Katy’s room, where he remained until morning. The next morning, after going to breakfast with Natalie and her mother and sister, defendant testified that the family shopped for supplies to paint Natalie’s room because “[he] had been promising her we were going to paint the bedroom the last six months.” The defendant stated that he had “never, never ever” done anything sexually inappropriate with Natalie. He testified that he had had several phone conversations with Edwards, and that she had visited him at the ACI on March 12, 201l, at which time “She told me * * * that [Natalie] had taken her story back and they had a tape recording on it.” The state offered defendant’s criminal record as exhibit No. 7, and it was entered in full without objection. When asked if he “was convicted of” a 1987 second-degree sexual assault, defendant said, “I pled guilty to a large assortment of charges as a plea agreement.” When asked, “I want to know simply did you lie to the Judge when you pled guilty?” defendant testified, “Yes, I lied to the Judge.” At the conclusion of the violation hearing, the hearing justice set forth in rather extensive detail the credibility assessments and factual findings supporting her conclusion that defendant had failed to keep the peace and be of good behavior, in violation of the terms of his probation. The hearing justice sentenced defendant to serve twenty-five years in each of the nine concurrent sentences referenced in the probation-violation report. On April 13, 2011, defendant filed notices of appeal; final judgments were entered on April 18, 2011. 14 14 The defendant filed this appeal prior to the entry of final judgment, however “this Court has stated that it will treat a premature appeal as if it had been timely filed.” Chapdelaine v. State, 32 A.3d 937, 941 n.1 (R.I. 2011) (quoting Bleau v. State, 968 A.2d 276, 278 n.1 (R.I. 2009) (mem.)). - 14 - II Standard of Review “At a probation-violation hearing, ‘[t]he sole issue for a hearing justice * * * is whether or not the defendant has breached a condition of his or her probation by failing to keep the peace or remain on good behavior.’” State v. Ford, 56 A.3d 463, 468 (R.I. 2012) (quoting State v. English, 21 A.3d 403, 406 (R.I. 2011)). Because probation-violation hearings are not part of a criminal prosecution, “the ‘burden of proof at a probation-violation hearing is much lower than the standard of beyond a reasonable doubt’ used in criminal trials.” Id. (quoting English, 21 A.3d at 406-07). In fact, “the state need only show that reasonably satisfactory evidence supports a finding that the defendant has violated his or her probation.” Id. at 468-69 (quoting English, 21 A.3d at 407). To make this determination, “the hearing justice ‘weighs the evidence and assesses the credibility of the witnesses.’” Id. at 469 (quoting English, 21 A.3d at 407). This Court accords “great deference” to the hearing justice’s credibility assessments. Id. (quoting English, 21 A.3d at 407). We have often stated that this Court “will not ‘second-guess’ supportable credibility assessments of a hearing justice in a probation-revocation hearing.” Id. (quoting State v. Jackson, 966 A.2d 1225, 1229 (R.I. 2009)). Instead, our review is “limited to considering whether the hearing justice acted arbitrarily or capriciously in finding a violation.” Id. (quoting English, 21 A.3d at 407). III Discussion On appeal, defendant argues that the hearing justice’s credibility findings were arbitrary and capricious because they were unsupported by facts. The defendant asserts that Natalie’s testimony was not credible due to her inability to remember very recent events and due to the - 15 - allegations of penetration and oral sex that she made to Murphy, the CPI, as well as during her basement interrogation, that were not reflected in her testimony before the court. Further, defendant argues that the tone of the interrogation troubled the hearing justice such that she relied on it in rendering her decision; defendant asserts that, however ill-advised that interrogation was, he “had nothing to do with this inquisition.” The defendant argues that the consistency of Natalie’s testimony with that of her friends Riley and Sarah is attributable to the fact that they “were in cahoots.” Further, defendant points to Sarah’s testimony that Natalie told her defendant drugged her and put duct tape over her mouth—a statement that Natalie denied making—as demonstrating that either Natalie lied or the girls could not “keep their stories straight.” Finally, defendant argues that the consistencies that the hearing justice found between Natalie’s testimony and the evidence could also be consistent with defendant’s assertion that the alleged abuse never took place. 15 We note that a probation-revocation hearing does not require “the full panoply of rights due a defendant in * * * a criminal proceeding.” Ford, 56 A.3d at 468 (quoting State v. Kennedy, 702 A.2d 28, 31 (R.I. 1997)). Here, defendant had the benefit of a five-day hearing, during which no fewer than thirteen witnesses gave testimony. Five of these witnesses testified for defendant. The hearing justice noted that defendant’s hearing “lasted longer than many criminal trials.” Nevertheless, the standard employed in probation-violation hearings is considerably lower than that which applies in criminal prosecutions; “the state need only show that reasonably 15 The defendant also appears to argue that the swift timetable of sixteen days from arrest to probation-violation hearing somehow prejudiced him. However, because the hearing justice took pains to ascertain that defendant was ready to proceed at the start of the hearing, and because defendant responded in the affirmative each time he was asked if he had had adequate time to discuss the case with his attorney, we need not address this argument. - 16 - satisfactory evidence supports a finding that the defendant has violated his or her probation.” Id. at 468-69 (quoting English, 21 A.3d at 407). The hearing justice, in a thorough decision, stated that she was “not only reasonably satisfied that [defendant] sexually assaulted [Natalie] on March 6, 2011, and over the course of the four years before that, I am near certain of it * * * .” In her decision, the hearing justice specifically found Natalie’s testimony to be credible and consistent with the testimony of both Riley and Sarah, whom she also found to be credible. The hearing justice addressed the inconsistency in Sarah’s testimony that Natalie told her that defendant drugged and duct-taped her. The hearing justice allowed for the possibility that some of the details were wrong, but she also stated, “Maybe they weren’t wrong which made [Natalie] deny saying at the hearing but that does not undermine [Natalie’s] hearing testimony. The fact that not all of the friends’ recollections were in the police statements that they gave is also understandable as the focus there was not on the past conversations or events but on the disclosures that occurred in March of 2011.” Likewise, the hearing justice found Natalie’s testimony to be consistent with what she said during her “grueling interrogation” on March 10. The CD recording of the several-hours- long interrogation was entered into evidence as a joint exhibit. The defendant argues that the hearing justice “was obviously very troubled” by the basement interrogation, such that she concluded that Natalie’s recantation was coerced. We are similarly troubled. In her decision, the hearing justice found that the recantation “was coerced and involuntary. Her recantation came only after she was convinced that she would not be released from the basement interrogation room until she said it didn’t happen, even if it did, and no one can really claim[] otherwise who has not listened to the [CD].” We concur. It is difficult to conjure a more coercive environment than this—a fourteen-year-old child subjected to several hours of pleading, mocking, screaming, - 17 - and threats from her mother, her uncle, and three other adults who, all the while, claimed to love and support her. Nevertheless, Natalie withstood this interrogation for hours before finally recanting. Further, days later when her uncle realized the gravity of the injustice he had perpetrated against his niece, Natalie took the opportunity to disavow her recantation. We recognize, as defendant argues, that he “had nothing to do with this inquisition,” yet the tape was admitted as a joint exhibit. We cannot say that the hearing justice erred by relying upon the tape in assessing Natalie’s credibility. Finally, the hearing justice found defendant’s testimony to be unworthy of belief. She found that, not only did defendant have an incentive to lie, but that his testimony about his own actions, including sleeping and having sex in Natalie’s bed, “radiates control of your victim and manipulation.” Further, the hearing justice noted that, when confronted with his earlier conviction, after a plea of nolo contendere to sexual assault, defendant said that he lied to the court when he admitted, under oath, that he had committed that offense. We are satisfied that the record provides ample support for the hearing justice’s determination that defendant’s testimony was not credible. The defendant’s appeal is based on the argument that the hearing justice’s determination of the credibility of the witnesses before her was arbitrary and capricious. On the contrary, the record discloses that the hearing justice carefully and thoroughly reviewed the testimony and evidence in concluding that she was reasonably satisfied that the defendant failed to keep the peace or remain on good behavior. See Ford, 56 A.3d at 468. The hearing justice presided over five days of testimony and was in the best position to assess the credibility of each of the thirteen witnesses who testified before her. We have often stated that we will not “second-guess supportable credibility assessments of a hearing justice in a probation-revocation hearing * * * .” - 18 - Id. at 469 (quoting Jackson, 966 A.2d at 1229). We will not do so now. The record of this case reflects ample support for the hearing justice’s credibility assessments. From her unique perspective on the bench, she relied on her own observations of the various witnesses, primarily the complaining witness and the defendant. Based upon our review of the record, we cannot say that her findings were arbitrary or capricious, and we affirm her adjudication of probation violation. IV Conclusion For the reasons set forth in this opinion, we affirm the judgments of the Superior Court. The papers in this case may be returned to the Superior Court. - 19 - RHODE ISLAND SUPREME COURT CLERK’S OFFICE Clerk’s Office Order/Opinion Cover Sheet TITLE OF CASE: State v. Robert Raso. CASE NO: No. 2011-364-C.A. (P1/90-250A) (P1/90-248A) (P1/90-247A) (P1/90-246A) (P1/89-1667A) (P1/89-941A) (P1/87-2828A) (P1/87-482A) COURT: Supreme Court DATE OPINION FILED: December 3, 2013 JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. WRITTEN BY: Chief Justice Paul A. Suttell SOURCE OF APPEAL: Providence County Superior Court JUDGE FROM LOWER COURT: Associate Justice Judith C. Savage ATTORNEYS ON APPEAL: For State: Virginia M. McGinn Department of Attorney General For Defendant: Catherine Gibran Office of the Public Defender	{ "pile_set_name": "FreeLaw" }
191 Kan. 534 (1963) 382 P.2d 325 GUY HOTCHKISS, JR., and MARGUERITE HOTCHKISS, Appellants, v. VELMA R. WHITE, IRA H. BUNDY, LOYD BLOSSER and BESS BLOSSER, Appellees. No. 43,279 Supreme Court of Kansas. Opinion filed June 8, 1963. George E. Teeple, of Mankato, argued the cause, and N.J. Ward, of Belleville, was with him on the briefs for the appellants. Charles A. Walsh, of Concordia, argued the cause, and Percy H. Collins, Jr., of Belleville, was with him on the briefs for the appellees. The opinion of the court was delivered by HATCHER, C.: This is an appeal from the judgment determining the boundary line between adjoining tracts of land purchased by separate parties from the owners of a single tract. The action was instituted and tried as a declaratory judgment action. The facts alleged in the petition may be summarized. The defendants, Ira H. Bundy and Velma R. White, were the 535 owners of the following described real estate located in Republic County, Kansas: "The West Half (W 1/2) of the Southwest Quarter (SW 1/4) of Section Three (3), and the East Half (E 1/2) of the Southeast Quarter (SE 1/4) of Section Four (4), Township Three (3) Range (3) West of the 6th P.M." On or about November 1, 1951, they agreed to sell six acres of the tract to defendants, Loyd and Bess Blosser, and entered into the following written memorandum: "It is hereby agreed by Ira Bundy and Velma White to sell to Bess and Loyd Blosser the Southeast approximate six acres which is fenced and planted to corn, of the West half of the Southwest Quarter of 3-3-3 for the sum of $6,000 (six thousand dollars), $1,000.00 (one thousand dollars) to be paid on November 1, 1951, and the balance to be paid on January 5, 1952, upon receipt of clear abstract title and deed to said approx. 6 acres. Loyd Blosser, Bess Blosser, Ira Bundy, Velma White." On December 12, 1951, they executed a deed to defendants Blossers which was recorded in the Office of the Register of Deeds of Republic County, Kansas, February 2, 1953. The deed described the land conveyed as follows: "Starting at the Southeast corner of the West Half (W 1/2) of the Southwest Quarter (SW 1/4) of Section Three (3), Township Three (3), Range Three (3), Republic County, Kansas, thence running west 817 feet, thence running north 320 feet, thence running east 817 feet, thence running south 320 feet to the place of beginning being six acres." On November 9, 1954, plaintiffs and Velma R. White and Ira H. Bundy entered into a contract for the purchase and sale of the following described property: "The West One-Half (W 1/2) of the Southwest Quarter (SW 1/4) of Section Three (3), except six (6) acres in the Southeast corner thereof, which is already conveyed to Loyd Blosser and wife, and the East one-Half (E 1/2) of the Southeast Quarter (SE 1/4) of Section Four (4), all in Township Three (3) South of Range Three (3) west in Republic County, Kansas." Thereafter, on December 15, 1959, by mutual agreement, defendant vendors made, executed, and delivered to defendants, Loyd and Bess Blosser, a correction deed describing the land as follows: "A parcel of land located in the West half of the Southwest Quarter of section Three (3), Township Three (3) South, Range Three (3) West of the 6th P.M., more particularly described as follows: Commencing at a point at the intersection of the east line of said West half of the Southwest Quarter section and the north right of way line of present U.S. 36 Highway, being 71.9 feet north of the Southeast corner of said West half of the 536 Southwest Quarter, thence north along said east line of the West half of the Southwest Quarter Section 320 feet, thence westerly parallel to the north line of the right of way line of present U.S. 36 Highway 817 feet, thence south parallel to the east line of the West half of the Southwest Quarter Section 320 feet, thence easterly along the north line of the right of way line of present U.S. 36 Highway 817 feet to the place of beginning, containing six acres more or less. "This deed is given to correct the description appearing in a former deed between the parties hereto, dated December 12, 1951, and recorded in the office of the Register of Deeds for Republic County, Kansas on February 2, 1953, in Book 167, Page 425-426." The deed was filed for record in the Office of the Register of Deeds, Republic County, Kansas, December 16, 1959. It will be noted that the correction deed places the beginning point 71.9 feet further to the north than the original deed. On December 21, 1959, plaintiffs entered into an extension agreement with defendants Velma R. White and Ira H. Bundy. The original agreement did not fix a definite time for the payment of the final balance due. Seven thousand dollars had been paid in installments. An additional seven thousand dollars was to be paid, but no time was fixed. The plaintiffs learned of the correction deed for the first time on December 29, 1959. The petition alleges that an actual controversy exists between the parties growing out of the transactions and sets out seven different claims and contentions. In the interest of some brevity, the contentions are highly summarized. The plaintiffs contend that the defendants, Blossers, own only the land described in their original deed, and that the Blossers contend that the metes and bounds described in the tract purchased by them begins 71.9 feet north of the southeast corner of the west half of the southwest quarter of the section; that the defendants, by the correction deed, are attempting to unlawfully take land from the plaintiffs which they acquired under their purchase agreement, and that the defendants contend an error was made in the first conveyance to the Blossers and that the correction deed contains the proper description of the land which the Blossers were to acquire; that there was no mistake in the first conveyance but that if there was such a mistake the plaintiffs had no knowledge thereof and were not a party thereto but entered into the purchase agreement in good faith. The plaintiffs further contend that if a description, as set forth 537 in the correction deed, is not determined to be the description of the property owned by the Blossers, then the plaintiffs have a claim against each of the defendants for damages. The petition sets out additional claims by the plaintiffs as to their rights under the original purchase agreement and the extension agreement with the defendants, Velma R. White and Ira H. Bundy. The petition requested a determination of "the rights of the parties in and to the real estate in controversy" and that the correct description as to the tracts concerned be fixed. The defendants, Blossers, answered, claiming that they had been in open and notorious possession of the land described in the correction deed, had made valuable improvements thereon, and that the plaintiffs acquiesced and consented to the possession and ownership asserted by them. The defendants, Velma R. White and Ira H. Bundy, filed their answer adopting the allegations of the answer of the Blossers and further alleged fraudulent representation on the part of plaintiff, Guy Hotchkiss, in procuring the extension agreement. The plaintiffs replied with a general denial to the answer of the defendants. Velma R. White and Ira H. Bundy. The Blossers then filed an amended answer which does not require special consideration here. The plaintiffs filed an extended reply thereto. The reply, among other things, alleged that at no time had there been sufficient possession by the defendants, Blossers, of any portion of the land in controversy so as to give them any claim thereto. The reply specifically alleged: "... that these defendants have entered into an agreement and conspiracy, whereby they agreed to use the same attorneys and to make the allegations and claim of interests as set forth in the said amended answer of the said Blossers and the answer of the said White and Bundy, for the purpose of taking certain real estate from these plaintiffs, without legally acquiring the same, and without paying any consideration therefor; ..." We will not extend this opinion with a discussion as to the controversy over the pleadings, the trial of the issues, or the final disposition of the case in the court below. We pause here to raise a jurisdictional question. It should suffice to say that at this point the parties were in complete disagreement as to the nature of the issues before the court for determination. There was a serious dispute as to whether the conflicting contentions presented questions for determination by a jury as a matter of right. 538 The first matter for consideration is whether the controversial pleadings present a controversy justiciable under the declaratory judgment act. (G.S. 1949, 60-3127, et seq.) Even though the parties have not raised the question, it is one which the court will raise on its own motion. In the recent case of Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380 P.2d 413, it was stated at page 198 of the opinion: "The first question confronting this court is whether, under the complicated and highly controversial pleadings, a controversy is presented which is justiciable under the declaratory judgment act (G.S. 1949, 60-3127, et seq.). The parties have not raised or discussed the question. Even so this serious preliminary question requires attention before the merits of the case can be considered. "The question, being one of jurisdiction, can and should be raised by this court on its own motion. (Riley v. Hogue, 188 Kan. 774, 365 P.2d 1097.) "In Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P.2d 350, we said: "`However, neither party in the action has raised the question of jurisdiction of this court and as has been stated on many occasions, whether the parties raise the question or not, the court has the duty to do so upon its own motion....'" It appears from the record that neither the parties nor the trial judge were certain as to whether the conflicting contentions contained in the pleadings, and the issues to be tried, constituted an action for ejectment, a boundary dispute, estoppel by acquiescence, estoppel because of fraudulent representations, or estoppel because, as concluded by the trial judge, "plaintiffs were in privity with defendants, Velma R. White and Ira H. Bundy, when they contracted to purchase the remaining land owned by said vendors". Certainly the parties are not in accord as to how their contentions arose and what the controlling contentions are. The abstracts set out some ninety-two pages of conflicting testimony on the question. In Alliance Mutual Casualty Co. v. Bailey, supra, the court stated further at page 198 of the opinion: "This court, in considering controversies justiciable under the declaratory judgment act (G.S. 1949, 60-3127, et seq.), has consistently adhered to the rule that a declaratory judgment action will not lie where there is a factual dispute as to how the contentions arose and what the legal contentions are. If the legal contentions, or the controversy as to what the legal controversies are, cannot be determined until after an extended hearing of the evidence and findings of fact, a declaratory judgment action is not proper." *539 The rule governing the question now before the court was well stated in McAdam v. Western Casualty & Surety Co., 186 Kan. 505, 351 P.2d 202, where the court stated: "Normally, a declaratory judgment action is not well suited to a case in which there is a controversy regarding how the contentions of the parties arose or what the contentions are. These matters should be agreed upon in the pleadings, or some other form of action should be brought. (City of Cherryvale v. Wilson, 153 Kan. 505, 112 P.2d 111; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P.2d 221; Stalnaker v. McCorgary, 170 Kan. 9, 223 P.2d 738; Simmons v. Reynolds, 179 Kan. 785, 298 P.2d 345; Bodle v. Balch, 185 Kan. 711, 347 P.2d 378; State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P.2d 1042.)" (p. 506.) Two other recent cases have followed the rule that a declaratory judgment action is not proper where the parties fail to agree in the pleadings as to how their contentions arose and what the contentions are. (See, Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P.2d 350, and State Automobile & Casualty Underwriters v. Gardiner, 189 Kan. 544, 370 P.2d 91.) The conflicting contentions and the diverse of issues raised by the pleadings compel a conclusion that the action is not one suitable for relief in the form of a declaratory judgment. The judgment is reversed with instructions to dismiss the action. APPROVED BY THE COURT.	{ "pile_set_name": "FreeLaw" }
11 F.3d 166 U.S.v.Lawson NO. 92-3038 United States Court of Appeals,Eleventh Circuit. Dec 01, 1993 1 Appeal From: M.D.Fla. 2 AFFIRMED. Local Rule 36 case	{ "pile_set_name": "FreeLaw" }
740 So.2d 183 (1999) Florianna WILLIAMS, et al. v. LAFAYETTE INSURANCE CO., et al. No. 98-CA-2855. Court of Appeal of Louisiana, Fourth Circuit. May 19, 1999. Rehearing Denied September 15, 1999. 184 Christopher J. Bruno, Janine C. Williams, New Orleans, Louisiana, Attorneys for Plaintiffs-Appellants Florianna Williams, et al. Geoffrey H. Longenecker, Longenecker & Associates, Ltd., Madisonville, Louisiana, Attorney for Defendants-Appellees Lafayette Insurance Co., et al. Court composed of Chief Judge ROBERT J. KLEES, Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER. KLEES, Chief Judge. On March 13, 1995, plaintiff, Florianna Williams ("Williams"), individually and on behalf of her minor child, filed suit against Rosa Shambra, the lessor, and her insurer, Lafayette Company. Williams alleges that her minor child, Carey Williams, suffered lead poisoning caused from eating leadbased peeling paint in their apartment. On March 26, 1998, the plaintiffs filed a Supplemental and Amended petition adding Soniat Realty, Inc. as a new defendant. On September 4, 1998, the trial court dismissed the suit on grounds of prescription. For the reasons below, we reverse. Carey Williams "Carey" was born on January 18, 1993. At the time of his birth, his mother, Williams, was renting an apartment located at 1509 Governor Nichols Street in New Orleans. Carey received his first blood lead level test on September 30, 1993. The test reflected a blood lead level of 10.0. Plaintiffs allege that this test performed on September 30, 1993 was Carey's "Last Negative Test".[1] The defendants argue that the September 30, 1993 test resulted in a "Positive Assessment" for "Lead Risk". Further, at the hearing, the defendants argued that the medical record of September 30, 1993 states that Williams informed the nurse that she had "peeling paint outside." However, the defendants failed to submit this evidence into the record and we are unable to find any indication that Williams made this comment or was aware of peeling paint on her house. Plaintiffs allege that Carey first tested positive for blood lead toxicity on April 18, 1994. The test revealed his blood lead level to be 27.5. At that time, Carey was referred to the Outreach program and a nurse visited the family's home to give them the test results. However, at the hearing, defendants introduced as evidence a progress report from Charity Hospital stating that a January 1994 test indicated that Carey had a lead poisoning level reading of 37. In September of 1994, Carey's blood lead level test reflected a blood level of 61.8. In November of 1994, the Williams' home was inspected for lead contaminants. Subsequently, in December of 1994, the Department of Health notified Williams that her home contained surfaces with excessive lead content with the greatest concern being the surfaces with flaking or peeling paint. Plaintiffs filed suit against 185 the defendants on March 13, 1995three months after receiving the notice from the Department of Health that her home contained lead contaminants. The only issue before this court is whether plaintiffs' claims against defendants were properly dismissed as prescribed. Plaintiffs allege that they timely filed a petition against the defendants since they did not learn until the first positive test in April 18, 1994, that Carey had suffered damages from lead poisoning. Alternatively, plaintiffs argue that the doctrine of "contra non valentem" should suspend prescription because they were not notified that the apartment contained excessive paint until December 19, 1994. In Louisiana, delictual actions are subject to a liberative prescription of one year, commencing to run from the day injury or damage is sustained. La. C.C. art. 3492. Statutes governing prescription are strictly construed against prescription, and in favor of the obligation sought to be extinguished. Babkow v. Morris Bart, P.L.C., 98-0256 (La.App. 4 Cir. 12/16/98), 726 So.2d 423. "With two possible constructions, the one that favors maintaining, as opposed to barring, an action should be adopted." Id. citing Bustamento v. Tucker, 607 So.2d 532 (La.1992). Nonetheless, under the doctrine of contra non valentem, prescription may be suspended during the period in which the cause of action was not known by or reasonably knowable by the plaintiff. La Plaque Corporation v. Chevron U.S.A., Inc., 93-1597 (La.App. 4 Cir. 5/26/94), 638 So.2d 354, 356, writ denied, 94-2125 (La.11/11/94); 644 So.2d 395. Prescription is usually suspended under the doctrine of contra non valentem when the circumstances of the case fit within one of the following four categories: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not induced by the defendant. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211, rehearing denied (5/12/94). Although the first three categories are clearly not relevant to this case, the fourth category, commonly referred to as the discovery rule, is relevant. It provides that prescription does not run against a party ignorant of his rights provided that ignorance is not willful, negligent or unreasonable. Id. Applying these principles here, we find that plaintiffs have demonstrated why their claims against defendants have not prescribed. First, we find that defendants progress report from Charity Hospital, stating that Carey was tested in January of 1994, is unconvincing to prove the Exception of Prescription. The medical document is merely a history of Carey's medical care documented by a nurse. Further, the defendants failed to submit any evidence from The Katherine Benson Health Center that Carey in fact received a blood test in January of 1994. More convincing to this court is plaintiffs' medical report, stating that Carey's last negative test was September 30, 1993, and his first positive test was April 18, 1994, because the record indicates that Carey did in fact receive blood tests at The Katherine Benson Health Center on these dates. Accordingly, using the April 18, 1994 test date, we find that plaintiffs filed this lawsuit within the prescriptive period. Second, the defendants rely upon Logan v. Housing Authority of New Orleans to state that prescription begins to run when the plaintiff "first tested positive for blood lead." 538 So.2d 1033 (La.App. 4 Cir. 1/30/89). However, we find the facts of this case distinguishable from the facts in Logan. In Logan, the plaintiffs first tested positive for blood lead in September of 1981. The plaintiffs' apartment was tested for *186 lead on September 17, 1981, the same month the child was tested positive for blood lead. Id. Additionally, in September of 1981, a letter was sent to the plaintiffs informing them that their son had high blood lead. Id. The letter also provided instructions on temporary measures to protect the child from further exposure. Accordingly, in Logan, the parents were on notice of both the lead poisoning and the source of the lead poisoning over two years before they filed the suit. The parents were merely alleging that they did not realize the damages until two years following the lead poisoning. However, in this case, Williams was never notified of the source of the lead contamination until she received the letter from the Department of Health on December 19, 1994. Thus, even if Williams knew of her son's lead poisoning as early as September 30, 1983, we find that under the doctrine of contra non valentem, prescription was suspended until plaintiffs knew that the peeling paint in the home was the source of the lead poisoning. Accordingly, we reverse the decision of the trial court granting the Exception of Prescription and reinstate plaintiffs' claims against defendants. REVERSED. NOTES [1] At trial, plaintiffs submitted into evidence an Outreach medical record which revealed that the September 30, 1993 test was Carey's "Last Negative Test".	{ "pile_set_name": "FreeLaw" }
9 F.3d 103 Davisv.Comm. Union Ins. Co.* NO. 93-04840 United States Court of Appeals,Fifth Circuit Nov 03, 1993 1 Appeal From: W.D.La. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
Case: 19-11208 Document: 00515394198 Page: 1 Date Filed: 04/24/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-11208 FILED April 24, 2020 Summary Calendar Lyle W. Cayce Clerk CHARISE L. LOGAN, Plaintiff - Appellant v. HOMELAND SECURITY; CENTRAL INTELLIGENCE AGENCY; UNITED STATES DEPARTMENT OF DEFENSE; PRESIDENT TRUMP, Honorable; GEORGE D. BUSH, Honorable; BARAK OBAMA, Honorable; MICHELLE OBAMA, Honorable; GEORGE NLN; CALVIN B. DAVIS; WENDY LOGAN; OVERLAND PARK KANSAS POLICE DEPARTMENT; ARLINGTON POLICE DEPARTMENT; FORT WORTH POLICE DEPARTMENT; BLOOMINGTON MINNESOTA POLICE DEPARTMENT; RICHFIELD MINNESOTA POLICE DEPARTMENT; DON EILTS; EDMON WITHERSPOON; US ARMY SIGNAL CORPS; UNITED STATES MARINE CORPS; CITY OF GRAND PRAIRIE; DFW INTERNATIONAL AIRPORT; BALLY'S FITNESS FOR LA FITNESS; WALMART; KROGER; EULESS CAR AUCTION; CARMAX; A T& T STADIUM, Defendants - Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19-CV-1908 Case: 19-11208 Document: 00515394198 Page: 2 Date Filed: 04/24/2020 No. 19-11208 Before STEWART, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM:* Charise Logan appeals the district court’s judgment dismissing her appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2). We AFFIRM. I. On August 9, 2019, Logan filed a 400-page pro se complaint in federal district court seeking money damages for alleged violations of several federal statutes related to cyber stalking, violence against women, computer hacking, wire taps, obstruction of justice, and numerous other issues. She named as defendants the Department of Homeland Security, the CIA, the United States Department of Defense, President Trump, George Bush, Barack Obama, Michelle Obama, Calvin B. Davis, Wendy Logan, the Overland Park Kansas, Arlington, Fort Worth, Bloomington Minnesota, and Richfield Minnesota Police Departments, Don Eilts, Edmon Witherspoon, the U.S. Army Signal Corps, the United States Marine Corps, the City of Grand Prairie, DFW Airport, “Bally’s Fitness for LA Fitness,” Walmart, Kroger, Euless Car Auction, Carmax, and AT&T Stadium. Logan filed 523 pages of exhibits to accompany her complaint. She asserted numerous claims against the named defendants including but not limited to their “unauthorized testing” and monitoring of her and that they used “cyberspace brainwashing video footage played into the atmosphere” to monitor her and prevent her from obtaining employment. She also claimed the defendants have targeted her in eleven different states and have illegally accessed her motor vehicles through cyberspace to impair her driving ability. She further claimed that the defendants use cyberspace to * 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 Case: 19-11208 Document: 00515394198 Page: 3 Date Filed: 04/24/2020 No. 19-11208 monitor her location with the intent to inject her with certain medical issues and conditions such as diabetes, memory loss, herpes, and HIV. She further alleged that various individuals impersonated her to deceive the public regarding her mental health condition. The district court permitted Logan to proceed in forma pauperis but withheld process pending judicial screening. On October 22, 2019, the district court summarily dismissed Logan’s complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2) on grounds that it “lack[ed] an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Logan now appeals to this court. The essence of her argument on appeal is that the district court erred in dismissing her complaint as frivolous. II. “We review a district court’s dismissal of an in forma pauperis complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion.” Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009). As noted by the district court, “a claim may be dismissed as frivolous if it does not have an arguable basis in fact or law.” Id. (citing Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998)). III. After considering the arguments as briefed on appeal, 1 and after reviewing the record and the applicable law, we AFFIRM the district court’s judgment dismissing Logan’s complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2). 1 For obvious reasons, none of the named appellees have filed a response brief on appeal. 3	{ "pile_set_name": "FreeLaw" }
Motion Granted; Judgments Set Aside and Remanded and Memorandum Opinion filed June 19, 2018. In The Fourteenth Court of Appeals NO. 14-16-00785-CV WOODS MFI, LLC, Appellant V. PLAINSCAPITAL BANK, Appellee On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2016-01321 NO. 14-16-00820-CV JOHN S. WOODS, Appellant V. PLAINSCAPITAL BANK, Appellee On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2014-16866 MEMORANDUM OPINION In these appeals from a judgment signed June 21, 2016, and a turnover order signed July 11, 2016, the parties filed a joint motion to reverse the trial court’s judgment and order, and remand for rendition of judgment in accordance with the parties’ settlement agreement. See Tex. R. App. P. 42.1. The motion is granted. Accordingly, we set aside the judgment signed July 21, 2016, in trial court cause number 2016-01321 without reference to the merits, and we set aside the turnover order signed July 11, 2016, in trial court cause number 2014-16866, without reference to the merits. We remand both cases to the trial court for rendition of judgment in accordance with the parties’ agreement. PER CURIAM Panel consists of Chief Justice Frost and Justices Wise and Jewell. 2	{ "pile_set_name": "FreeLaw" }
942 F.2d 415 FREEMAN UNITED COAL MINING COMPANY, Petitioner,v.BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR,William Doty and Director, Office of Workers'Compensation Programs United StatesDepartment of Labor, Respondents. No. 89-2307. United States Court of Appeals,Seventh Circuit. Argued May 16, 1990.Decided July 23, 1991.Rehearing Denied Oct. 3, 1991. Louis R. Hegeman, Jay D. Stein, Louis D. Bernstein (argued), Gould & Ratner, Chicago, Ill., for Freeman United Coal Min. Co. Howard B. Eisenberg (argued), Southern Illinois University, School of Law, Carbondale, Ill., for William Doty. Donald S. Shire, Sol. Gen., Dept. of Labor, Washington, D.C., John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, Ill., Rae Ellen Frank James, Sylvia T. Kaser, Dept. of Labor, Black Lung Div., Jeffrey J. Bernstein, Sol. Gen., Washington, D.C., for Director, Office of Workers' Compensation Programs. Linda M. Meekins, Benefits Review Bd., Dept. of Labor, Washington, D.C., for Benefits Review Bd. Before BAUER, Chief Judge, COFFEY, Circuit Judge, and SNEED, Senior Circuit Judge.* COFFEY, Circuit Judge. 1 Freeman United Coal Mining Company appeals a decision of the Benefits Review Board reversing an Administrative Law Judge's denial of benefits to William Doty under the Black Lung Benefits Act on the ground that Freeman failed to rebut the 20 C.F.R. § 727.203 interim presumption entitling Doty to benefits. We agree with the Benefits Review Board that the Administrative Law Judge erred, but we base our decision on different grounds. I. FACTS 2 Freeman United Coal Company employed William Doty as a laborer and electrician from 1934 until his retirement in 1977. Doty was born on July 18, 1912, and has never smoked. He testified before the Administrative Law Judge ("ALJ") that he was exposed to coal dust in his work and experienced difficulty breathing during his last three years on the job. 3 Since we decide this case on procedural grounds, our statement of facts will be limited primarily to the procedural history. Doty filed his complaint for black lung benefits with the Department of Labor on August 1, 1977. On March 27, 1979, the Department of Labor's Division of Coal Mine Workers' Compensation sent Freeman United Coal Mining Company a Notice of Initial Finding stating that the Department had found "that the claimant is entitled to benefits" and that Freeman United Coal is "liable to pay benefits." Freeman filed its controversion of the initial finding on a Department of Labor "Operator Response" form dated May 1, 1979, five days more than the thirty days from the date of the Notice of Initial Findings that the regulations permit for filing a controversion of liability,1 but within the thirty-seven days permitted for filing a controversion through the U.S. mail.2 4 The parties3 held an informal conference regarding Doty's claim on January 16, 1980 pursuant to 20 C.F.R. § 725.416.4 Freeman claims that its non-lawyer representative, Harry Treadwell, requested during the hearing that the Acting Deputy Commissioner send the Memorandum of Conference to him at Freeman's West Frankfort, Illinois address. But the Acting Deputy Commissioner's Memorandum of Conference recommending that Doty receive black lung benefits was sent to the attention of Freeman's attorney at the address included on Freeman's Operator Response form. Freeman received the Memorandum in its Chicago office on May 19, 1980, but failed to send a letter to the Acting Deputy Commissioner rejecting her recommendation until June 26, 1980, more than thirty days after the date of the Acting Deputy Commissioner's recommendation. See 20 C.F.R. § 725.417(d).5 Upon receipt of Freeman's rejection of the recommendation, the Deputy Commissioner proceeded to issue a proposed decision on July 11, 1980, awarding benefits to Doty effective August 1, 1977 (without addressing the untimeliness of Freeman's response). 5 The Labor Department regulations permit a proposed decision of the Deputy Commissioner to be appealed to an ALJ within 30 days of issuance.6 Freeman asserts that it sent the Deputy Commissioner a letter dated July 22, 1980, rejecting the proposed findings of fact and conclusions of law and requesting that the claim be forwarded to the Office of Administrative Law Judges for a formal hearing, but Doty claims he never received it. The problem is that this alleged letter is not now nor was it ever made part of the Labor Department's record, and it is impossible to verify whether the document was actually sent. Doty subsequently began receiving interim payments from the Black Lung Trust Fund until such a time as liability could be enforced against Freeman. 6 More than a year later, on October 20, 1981, Donald Shire, Associate Solicitor for Employee Benefits of the Department of Labor's Division of Coal Mine Workers' Compensation addressed a memorandum to Ralph M. Hartman, Director of the Department's Office of Worker Compensation Programs, regarding enforcement of the claim. Noting Freeman's untimely mailing of its rejection of the Memorandum of Conference and that "[t]he Responsible Operator did not subsequently respond to the Award of Benefits," Shire requested that proceedings be instituted to compel Freeman to pay benefits. The record contains no trace of any Labor Department action in response to Shire's request, but early in 1982 Freeman requested that liability for payments be shifted to the Trust Fund. The Deputy Commissioner denied the requested transfer of liability on March 8, 1982, and Freeman failed to appeal this determination. 7 It would be four years until the Labor Department would return to the question of the disposition of Doty's claim. Francis A. DeMarino, Deputy Associate Director of the Office of Workers' Compensation Programs, Division of Coal Mine Workers' Compensation, sent a memorandum to Robert A. Mitchell, the Deputy Commissioner in the Division of Coal Mine Workers' Compensation, on October 31, 1985. The memorandum failed to acknowledge Shire's 1981 memorandum and stated: 8 "A Memorandum of Conference was issued to Harry A. Treadwell c/o Louis R. Hedgeman of Freeman United Coal Mine Company in Chicago, instead of directly to Mr. Treadwell at P.O. Box 100 Frankfort, Il. This document, which was received in [C]hicago on May 19, 1980, was responded to on June 26, 1980. Because of the delayed response a proposed Decision and Order was issued July 11, 1980. 9 "Experience with this particular responsible operation suggests that the failure to respond within 30 days is a rare occurrence and the Proposed Decision and Order should have been held in abeyance until the cause for the delay was determined. There is no evidence in the file to establish if and when the Proposed Decision and Order was received by the Interested Parties. 10 "In March of 82, in the process of resolving the issue of 'Transfer of Liability', Claims Examiner Rosemary Kress suggested referral to an Administrative Law Judge would appear to be the more appropriate action rather than referral for enforcement. Apparently the designated responsible operator anticipated that the claim was to be submitted to an Administrative Law Judge for a medical examination of the miner was scheduled and the report of finding forwarded to the file.7 11 "Unless you have evidence to the contrary, we are returning the claim for referral to the Office of the Administrative Law Judge." 12 Even though the record reveals no request from either party for a formal hearing, the case was referred to the Office of Administrative Law Judges. The first notice Doty received to the effect that the benefits awarded to him July 11, 1980, were in jeopardy came in a letter dated November 20, 1985: 13 "Dear Mr. Doty: 14 "It has been several years since your claim has been reviewed. Our efforts to enforce your July 11, 1980 Award of Benefits has been dismissed with the recommendation that your claim be forwarded to the Office of Administrative Law Judges for a hearing decision. 15 * * * * * * 16 "If you have not obtained the services of an attorney as yet, you should think about it in order to protect your rights in this matter...." 17 Doty received a second letter dated April 7, 1986 that stated: 18 "Your claim under the Black Lung Benefits Act is being referred to the Office of Administrative Law Judges for a formal hearing. This hearing will be to resolve the contested issues concerning your entitlement to black lung benefits. 19 * * * * * * 20 "It may be advisable for you to obtain the services of a qualified representative to be certain your interests are fully protected at the hearing. You should be certain your representative receives copies of the evidence. You must submit a signed statement to the U.S. Department of Labor authorizing the representative you choose to act on your behalf." 21 In November, 1986 an attorney entered his appearance on behalf of Doty for the first time regarding this claim. On May 15, 1987, Doty's newly retained attorney notified the ALJ that the claimant desired to raise the issue of whether the employer's appeal from the award of benefits should be dismissed for lack of jurisdiction: 22 "[T]he record reflects that the Notice of Initial Finding ... was issued on March 27, 1979, but the Employer's controversion was not filed until May 1, 1979 ... and thus was not filed within the 30-day period. 23 "Secondly, the memo of the informal conference ... was issued on May 16, 1980, but the Employer's response was not filed until June 26, 1980 ... and thus was also outside the 30-day period. 24 "The record fails to show any appeal taken by the Employer from the Award of Benefits entered on July 11, 1980. 25 "For these reasons, it is the Claimant's position that you are without jurisdiction to consider the Employer's appeal on this matter in as much as controversion and the objection to the informal conference were not timely filed and no proper notice of appeal was ever taken from the ultimate award of benefits in this case. For that reason, Claimant believes this [pur]ported appeal should be dismissed." 26 In response to Doty's challenge to timeliness and Freeman's failure to appeal the July 11, 1980 Award of Benefits, counsel for Freeman submitted a letter dated July 22, 1980, to the ALJ that they argue should be considered as an appeal of the award. The ALJ apparently believed that Freeman submitted this alleged letter of appeal on the date contained therein, but that the Deputy Commissioner merely neglected to file the purported appeal in the record. 27 On May 27, 1987, the Administrative Law Judge issued a decision denying the motion to dismiss on the ground that he lacked authority to address the timeliness issues and that Doty had waived them by not bringing them to the Board's attention in a timely fashion: 28 "Review of current, applicable law reveals that a determination of the presence or absence of good cause for tardy Employer filings and responses and the effect of no Employer response are matters solely and properly within the province of the Deputy Commissioner. More than one (1) Administrative Law Judge has been humbled and chastised by the Board for treading on the Deputy Commissioner's turf by finding good cause for late Controversion filing or for untimely submissions. [Citations omitted]. The Board has also consistently held that appeal from the determinations, or even the lack thereof, of the Deputy Commissioner is directly to the Board and that the Board alone has the authority to remand a case to the Deputy Commissioner for the purpose of making formal findings of good cause or the consequences of a failure to respond. Therefore, a Claimant's remedy is to take his case to the Board and, if he fails so to proceed in a timely fashion, he waives all procedural defects and defaults." 29 Although the ALJ concluded that he lacked the authority to resolve questions related to the timeliness of the employer's filings, he went on to make the following comments regarding the processing of the case: 30 "In this case it is clear that the Deputy Commissioner directly caused Employer's untimely response to the Report of Informal Conference by forwarding the report to an office not occupied by Counsel who represented Employer at the Informal Conference. Error was heaped upon error when the Deputy Commissioner failed to include as a proposed Director's Exhibit Employer's most prompt reply to the proposed Decision and Order. At least one of these errors has been conceded. Good cause was found for the delay in answering the report of Informal Conference [citing memo from DeMarino to Mitchell reproduced supra ]. Certainly the omitted response to the proposed Decision and Order is admissible in evidence at the [sic] when offered at the Hearing. All that remains unaddressed then is the tardiness, by three (3) days, in the filing of Employer's Controversion and the Deputy Commissioner's failure formally to find good cause therefor, though he did proceed with further case development. The significance, if any, of this defect should have been determined by the Board through Claimant's appeal. Since none was pursued, it is deemed waived." 31 Following the rejection of Doty's motion to dismiss, a hearing was held and the Administrative Law Judge issued a decision denying benefits. Because Doty filed his application for benefits prior to the March 31, 1980, effective date of the Labor Department's Part 718 regulations, the ALJ analyzed his claim under the Labor Department's Part 727 regulations. After determining that the interim presumption was properly invoked, the Administrative Law Judge went on to examine whether the interim presumption could be rebutted. 20 C.F.R. § 727.203(b) provides for four possible methods of rebutting the interim presumption, and reads in relevant part: 32 "The presumption in paragraph (a) of this section shall be rebutted if: 33 "(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work ...; or 34 "(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work ...; or 35 "(3) The evidence establishes that the total disability or death of the miner does not arise in whole or in part out of coal mine employment; or 36 "(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis." 37 Because the Administrative Law Judge concluded that Freeman rebutted the interim presumption under 20 C.F.R. § 727.203(b)(3), he denied Doty's claim for benefits. 38 Doty appealed the Administrative Law Judge's denial of benefits to the Benefits Review Board. Although Doty presented argument on both the jurisdictional issues and the substantive merits, the Board found the substantive questions dispositive. The Board reversed the Administrative Law Judge's conclusion that Freeman had rebutted the interim presumption of disability due to pneumoconiosis under 20 C.F.R. § 727.203(b)(3), holding: 39 "Because this case arises within the jurisdiction of the United States Court of Appeals for the Seventh Circuit, the party opposing entitlement must show that pneumoconiosis was not a contributing cause of claimant's total disability in order to rebut the interim presumption pursuant to subsection (b)(3). Wetherill v. Director, OWCP, 812 F.2d 376 ... (7th Cir.1987). Dr. Myers' conclusions regarding claimant are as follows: 40 'This man's silicosis results from his entire exposure history and is permanent. He should avoid further dust exposure. His main limiting factor at present appears to be his angina.' " 41 Claimant's Exhibit 1. 42 "Dr. Myers' opinion is insufficient as a matter of law to establish rebuttal under subsection (b)(3) pursuant to the standards set forth in Wetherill, supra, as it does not establish that claimant's pneumoconiosis does not contribute to his total disability. Because the administrative law judge reasonably accorded greater weight to Dr. Myers' opinion, and that opinion is insufficient to establish rebuttal at subsection (b)(3), we vacate the administrative law judge's rebuttal findings under subsection (b)(3) and reverse the denial of benefits." 43 In light of its determination of the substantive issue, the Board did not find it necessary to determine the question of whether the employer had taken the required steps to vest the ALJ with jurisdiction over its challenge to Doty's award of benefits because the employer would have lost on the merits regardless of whether the Administrative Law Judge had jurisdiction. II. ISSUES PRESENTED 44 This appeal presents two issues: (1) Did the Administrative Law Judge have jurisdiction over Freeman's challenge to the Deputy Commissioner's award of black lung benefits to Doty; (2) Did the Administrative Law Judge properly deny black lung benefits to Doty on the ground that Freeman had rebutted the interim presumption of disability due to pneumoconiosis under 20 C.F.R. § 727.203(b)(3). Since we base our decision on waiver and jurisdictional grounds, we decline to address the rebuttal issue. III. STANDARD OF REVIEW 45 In Peabody Coal Co. v. Helms, 859 F.2d 486, 489 (7th Cir.1988), we set forth the standards applicable to review of a decision awarding or denying black lung benefits: 46 "Although this appeal is from a decision of the [Benefits Review] Board, we review the judgment of the ALJ. Our review is limited to whether the decision of the ALJ is supported by substantial evidence, is in accord with the law, and is rational. Substantial evidence is 'such relevant evidence as a rational mind might accept as adequate to support a conclusion.' " 47 (citations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). When we confront a case where the Benefits Review Board has reversed an ALJ's determination, we have emphasized that it is the Administrative Law Judge's decision we review to determine whether it is "supported by substantial evidence, in accord with the law, and not irrational. If it is, the Board's decision must be reversed, even if it is also supported by substantial evidence." Amax Coal Co. v. Burns, 855 F.2d 499, 501 (7th Cir.1988) (citations omitted). 48 IV. THE ADMINISTRATIVE LAW JUDGE'S JURISDICTION 49 Doty claims that the Administrative Law Judge lacked jurisdiction over this matter8 as a result of Freeman's failure to file a written rejection of the Deputy Commissioner's recommendation within 30 days of the date the recommendation contained in the Memorandum of Informal Conference was sent to the parties as required in 20 C.F.R. § 725.417(d); and Freeman's alleged failure to request a hearing before the Office of Administrative Law Judges within 30 days of the issuance of the Deputy Commissioner's proposed decision pursuant to 20 C.F.R. § 725.419.9 A. The ALJ's Jurisdiction over the Appeal 50 It is axiomatic that there must be an appeal in order to invoke the jurisdiction of an appellate court. Furthermore, appeals must be timely. Cf. Young Radiator Co. v. Celotex Corp., 881 F.2d 1408 (7th Cir.1989). In this case the Administrative Law Judge was acting in an appellate capacity, and we are aware of no rule allowing review of agency action without a timely appeal in administrative proceedings absent statutory or regulatory language creating an exception.10 51 The record manifests no appeal from the July 11, 1980, proposed decision and order of the Acting Deputy Commissioner. We are at a loss to understand why the Deputy Commissioner referred the claim to the Office of Administrative Judges in the absence of proof of the filing of an appeal in the record. We see no reason for a referral to be made some five years after the award in light of the fact that there was no evidence in the record that either party requested a hearing. 20 C.F.R. § 725.419 states: 52 "(a) Within 30 days after the date of issuance of a proposed decision and order, any party may, in writing, request a revision of the proposed decision and order or a hearing. If a hearing is requested, the deputy commissioner shall refer the claim to the Office of Administrative Law Judges...." 53 * * * * * * 54 "(d) If no response to a proposed decision and order is sent to the deputy commissioner within the period described in paragraph (a) of this section ... the proposed decision and order shall become a final decision and order, which is effective upon the expiration of the applicable 30-day period. Once a proposed decision and order or revised proposed decision and order becomes final and effective, all rights to further proceedings with respect to the claim shall be considered waived, except as provided in § 725.310 [change in conditions or mistake in determination of fact]." 55 (Emphasis added). In response to Doty's challenge to the ALJ's jurisdiction, Freeman submitted a letter dated July 22, 1980, to the ALJ that they allege is an appeal sent by certified mail in a timely manner. But Freeman failed to present any type of documentary evidence, including a certified mail receipt, as proof of mailing and/or receipt of the letter, and since the letter was not in the record, it was incumbent upon the Administrative Law Judge to determine whether the letter of appeal was timely submitted. This the ALJ failed to do. How one might determine that a notice of appeal was submitted in a timely fashion nearly seven years after the fact is indeed most questionable, but the very circumstance of the seven-year time span militates against assuming that the appeal was timely. Moreover, Doty unequivocally denies receiving a copy of the notice as required under 20 C.F.R. § 725.419(b); on its face the letter fails to reveal that a copy was sent to Doty; and the Donald Shire memo of October 20, 1981, mentioned above, stated that there was no appeal. While we are in no position to make a finding of fact regarding whether Freeman submitted its appeal July 22, 1980, we view the ALJ's apparently unquestioning acceptance of the letter as evidence of a timely appeal with a great deal of skepticism. In view of Freeman's other untimely filing in this case, however, we need not remand to the ALJ for further findings. 56 Even if Freeman's alleged appeal of the July 11, 1980, proposed decision and order were timely, the Administrative Law Judge would still have lacked jurisdiction as a result of the untimely response to the Deputy Commissioner's recommendation following the informal conference. According to Donald Shire's October 20, 1981 memorandum, Freeman received the Memorandum of Conference on May 19, 1980, but neglected to respond until June 26, 1980. 20 C.F.R. § 725.417(d) states: 57 "Each party shall, in writing, either accept or reject, in whole or in part, the deputy commissioner's recommendation, stating the reasons for such rejection. If no reply is received within 30 days from the date on which the recommendation was sent to parties, the recommendation shall be deemed accepted." 58 (Emphasis added). In Shire's memo requesting enforcement of the liability against Freeman, he noted Freeman's untimely response and stated "[a]n Award of Benefits was therefore issued on July 11, 1980 as Freeman United did not timely respond to the Memorandum of Conference." Freeman's excuse for its late response was that the Memorandum of Conference was mistakenly mailed to its attorney (who signed the Operator Response form and who is still representing Freeman on appeal) rather than to the employee who attended the conference. The Administrative Law Judge stated that "it is clear that the Deputy Commissioner directly caused Employer's untimely response to the Report of Informal Conference by forwarding the report to an office not occupied by Counsel who represented Employer at the Informal Conference." This statement is the equivalent of a finding of "good cause shown" under 20 C.F.R. § 725.413(a). The problem with such a finding is that there is no such exception under § 725.417(d). Thus, neither the ALJ nor the Deputy Commissioner possessed discretion to extend the 30-day time period for rejecting the recommendation absent a finding that Freeman did not receive notice. In this case, Freeman undoubtedly received notice, and the letter responding to the Memorandum of Conference was signed by Freeman's attorneys located at the same address to which the Memorandum was mailed. Thus, we hold that Freeman's argument is somewhat less than forthright, and we deem the Deputy Commissioner's recommendation to have been accepted by Freeman at the expiration of the 30-day period for rejection. Therefore, the ALJ was without jurisdiction to reconsider that recommendation. 59 B. The ALJ's Jurisdiction to Decide Whether There Is "Good Cause Shown" under 20 C.F.R. § 725.413(a) 60 The Administrative Law Judge, in rejecting Doty's challenge to his jurisdiction, relied upon Saylor v. Warner Coal Co. and Old Republic Co., 7 BLR 1-761 (1985), (among other Benefits Review Board cases) for the proposition that he was without jurisdiction to consider whether Freeman had good cause for the untimely response to the Notice of Initial Finding. The ALJ correctly interpreted Saylor, but the Sixth Circuit subsequently reversed Saylor and another case in which the Benefits Review Board held that the ALJ was without jurisdiction to make a determination of "good cause shown" in Pyro Mining Co. v. Slaton, 879 F.2d 187, 189 (6th Cir.1989). We agree with the Sixth Circuit that 20 C.F.R. § 725.455 provides that "a hearing before the administrative law judge is to be a de novo proceeding because the section specifies that 'any findings or determinations made with respect to a claim by a deputy commissioner shall not be considered by the administrative law judge.' " Id. at 190. When a party places "good cause" in issue, we believe the ALJ must be able to address it in order to conduct a de novo review pursuant to § 725.455. 61 The Administrative Law Judge held that Doty's remedy for addressing the "good cause" issue was a direct appeal to the Benefits Review Board, and failure to pursue that remedy constitutes a waiver of the argument. We disagree. Initially, we note that the ALJ's holding would require a claimant to take an appeal to the Benefits Review Board for the Deputy Commissioner's non-action. How is a coal miner claimant, unrepresented by counsel, to know at what point the Deputy Commissioner's failure to make a determination of "good cause" requires an appeal? Requiring an appeal before an ultimate determination of liability is made would violate the general judicial policy against allowing interlocutory appeals. Secondly, proceedings before the Deputy Commissioner are structured informally so a claimant can assert his claim without the aid of an attorney. How could we expect a coal miner with an eighth grade education and no counsel, such as Doty, to avoid technical pitfalls of waiver such as the one posed by the ALJ? Administrative proceedings simply do not require the formality expected in federal litigation. See Eifler v. OWCP, 926 F.2d 663, 667 (7th Cir.1991). We hold that Doty's failure to raise Freeman's non-compliance with the timeliness requirements of the regulations at issue prior to consideration of the case by the ALJ may not be deemed a waiver. While the issue of Freeman's non-compliance with the regulations could have been raised earlier, we do not believe Doty should have been required to raise it prior to the hearing before the ALJ. V. CONCLUSION 62 We hold that the Administrative Law Judge was without jurisdiction to consider Freeman's liability and that Doty's failure to raise the jurisdictional issue prior to the proceedings before the ALJ did not constitute waiver. Thus, the decision of the Benefits Review Board is 63 AFFIRMED. * The Honorable Joseph T. Sneed, of the United States Court of Appeals for the Ninth Circuit, is sitting by designation 1 The thirty day limitation for the responsible operator to file its objection to liability is contained in 20 C.F.R. § 725.413(a) which reads, in relevant part: "Within 30 days after receipt of notification issued under § 725.412, unless such period is extended by the deputy commissioner for good cause shown, or in the interest of justice, a notified operator shall indicate an intent to accept or contest liability." 2 20 C.F.R. § 725.311(c) provides that "[w]henever any notice, document, brief or other statement is served by mail, 7 days shall be added to the time within which a reply or response is required to be submitted." 3 The conferees included a representative from the Acting Deputy Commissioner's office, William Doty, Freeman's representative, Harry Treadwell, and Joe Angelton, a United Mine Workers of America official 4 20 C.F.R. § 725.416(a) provides: "At the conclusion of the period permitted by § 725.414 for the submission of evidence, the deputy commissioner may conduct an informal conference in any claim where it appears that such conference will assist in the voluntary resolution of any issue raised with respect to the claim. The conference proceedings shall not be stenographically reported and sworn testimony shall not be taken." 5"Each party shall, in writing, either accept or reject, in whole or in part, the deputy commissioner's recommendation, stating the reasons for such rejection. If no reply is received within 30 days from the date on which the recommendation was sent to parties, the recommendation shall be deemed accepted." 6 The Labor Department regulations provide that: "Within 30 days after the date of issuance of a proposed decision and order, any party may, in writing, request a revision of the proposed decision and order or a hearing. If a hearing is requested, the deputy commissioner shall refer the claim to the Office of Administrative Law Judges (see § 725.421)." 20 C.F.R. § 725.419(a). The regulations further provide that: "If no response to a proposed decision and order is sent to the deputy commissioner within the period described in paragraph (a) of this section [reproduced above] ... the proposed decision and order shall become a final decision and order, which is effective upon the expiration of the applicable 30-day period. Once a proposed decision and order ... becomes final and effective, all rights to further proceedings with respect to the claim shall be considered waived, except as provided in § 725.310 [providing for modification of awards and denials on 'grounds of a changing condition or because of a mistake in a determination of fact']." 20 C.F.R. § 725.419(d) 7 It is unclear why DeMarino thought that Rosemary Kress had suggested referral to an ALJ. The record documents signed by Ms. Kress relate to a denial of transfer of liability from Freeman to the Black Lung Trust Fund only 8 Freeman argues that Doty waived the jurisdictional argument by failing to raise it until 1987. In view of the fact that Doty was under the impression that his benefits were awarded permanently in 1980, he did not receive notice that the benefits were in jeopardy until November 20, 1985, and he never retained counsel to represent him until November 3, 1986, it is not surprising that he waited until 1987 to raise the jurisdictional issue. We would hardly expect a coal miner with a eighth-grade education to realize that he had a jurisdictional argument that he could raise 9 Doty also challenges jurisdiction on two other grounds. He argues that the Operator Response to the Notice of Initial Finding was outside the 30-day limit set forth in 20 C.F.R. § 925.413(a), but as the Response was within the 7-day extension provided for mailed filings (20 C.F.R. § 725.311(c)), it was timely. Additionally, Doty contests jurisdiction on the basis of Freeman's failure to appeal the 1982 denial of its request to shift responsibility for Doty's claim from Freeman to the Black Lung Trust Fund. Since this issue is raised for the first time on appeal, we decline to address it 10 The language in 20 C.F.R. § 725.413(a) authorizing the Deputy Commissioner to extend the time period "for good cause shown, or in the interest of justice" is an example of such an exception. Thus, it is evident that not every procedural default deprives the Deputy Commissioner or the ALJ of jurisdiction to proceed, for some defaults may be deemed to be excusable. Objections to procedural errors that the Deputy Commissioner (or the ALJ) have discretion to excuse may be waived. See Peabody Coal Co. v. Shonk, 906 F.2d 264, 272 n. 11 (7th Cir.1990) (Peabody Coal waived argument of abandonment under 20 C.F.R. § 725.410, which allows Deputy Commissioner to extend time for submitting new evidence or requesting hearing "for good cause shown.")	{ "pile_set_name": "FreeLaw" }
899 So.2d 455 (2005) Michael BLANC, Appellant, v. STATE of Florida, Appellee. No. 4D02-1270. District Court of Appeal of Florida, Fourth District. April 6, 2005. Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee. POLEN, J. This appeal arises from a March 14, 2003 sentence of life in prison with a fifteen-year mandatory minimum on the first count, conspiracy to commit armed trafficking in cocaine, and a concurrent sentence of fifteen years on the second count, conspiracy to commit armed robbery. Because the enhanced penalty under section 775.087(1), Florida Statutes, should not have been applied to Blanc's sentencing, we reverse the sentence and remand this case to the trial court for re-sentencing. Blanc was charged by information with the above-stated crimes. He pled guilty in exchange for entering into a substantial assistance agreement with the state. See § 893.135(4), Fla. Stat. Sentencing was postponed and Blanc was released on bond. Blanc was instructed as to the ground rules for rendering substantial assistance and was told that he could not be involved in any illegal activity whatsoever. Although Blanc did provide assistance to both the state and federal governments, he also became re-involved in drug trafficking. Investigators learned that Blanc arranged to travel from Orlando to Dade County to facilitate a multi-kilogram purchase of narcotics with two other individuals, outside of his substantial assistance 456 activities. When Blanc arrived in Dade County, the police began surveillance. Blanc was involved in a shooting in a hotel room where the transaction was supposed to take place and he was arrested a short time later by Miami-Dade police. The next day, Blanc gave Hollywood Police Detective Richard Eadie a full statement as to his involvement. Blanc stated that he was the driver and that he was outside in the car when the shooting occurred. Blanc, along with two others, was charged with felony murder. The trial court held a hearing on Blanc's violation of his substantial assistance agreement and sentencing. The trial court advised Blanc that despite any assistance he had provided, he violated his substantial assistance agreement by committing a criminal offense. The trial court accepted Blanc's previously tendered guilty plea and sentenced him to life in prison with a fifteen-year mandatory minimum on the first count and a concurrent sentence of fifteen years on the second count. This appeal ensued. Following the notice of appeal but prior to filing the initial brief in this cause, Blanc filed a motion to correct sentencing error in the trial court, contesting the legality of the life sentence imposed for Count I. The trial court denied the motion. Blanc argues that the trial court erred in imposing an enhanced sentence of life imprisonment under section 775.087(1), Florida Statutes, where he was convicted of conspiracy to commit trafficking in cocaine with a firearm. We agree and reverse. Pursuant to sections 893.135(1)(b)1.c. and 893.135(5), Florida Statutes, any person who has actual or constructive possession or conspires to have in his actual or constructive possession cocaine in the amount of 28 grams or more, but less than 150 kilograms, commits a felony of the first degree known as "trafficking in cocaine." The applicable statute in Blanc's casewhere the amount of cocaine is 400 grams or more, but less that 150 kilogramsis section 893.135(1)(b)1.c., Florida Statutes, which provides for a minimum mandatory sentence of fifteen years and a $250,000 fine. A first degree felony is punishable by a term of imprisonment not exceeding thirty years, unless specifically provided otherwise by statute. § 775.082(3)(b), Fla. Stat. The state successfully sought to enhance the penalty from a first degree felony to a life felony under the authority of section 775.087(1), Florida Statutes, which reads in pertinent part: [W]henever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (a) In the case of a felony of the first degree, to a life felony. In the instant case, the trial court held in its order denying Blanc's 3.800(b) motion "that possession by the codefendants of loaded firearms during the commission of a conspiracy to traffick cocaine was sufficient to enhance the sentence to life." We hold that the life sentence imposed in Count I was contrary to the well-established case law, and was unauthorized under section 775.087(1), rendering it patently illegal. In State v. Overfelt, 457 So.2d 1385 (Fla.1984), the Florida Supreme Court addressed the issue of whether there must be a specific jury finding that an accused actually possessed a firearm before a trial 457 court can apply the enhancement and mandatory sentencing provisions of section 775.087. The supreme court stated that it agreed with this court that before a trial court may enhance a defendant's sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating. Id. at 1387. Additionally, the supreme court held that, for sentence enhancement purposes, the question of whether the accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Id. Moreover, even if an information charges the use of a firearm, a verdict form that simply recites that the defendant is guilty as charged does not support reclassification of the crime under section 775.087(1). Where the defendant enters a plea of guilty, relinquishing his right to a jury trial, he may stipulate in his plea to having actual possession of a firearm, but such was not the case here. In State v. Rodriguez, 602 So.2d 1270 (Fla.1992), the Florida Supreme Court addressed, as a certified question of great public importance, whether "the enhancement provision of subsection 775.087(1), Florida Statutes (1983), extends to persons who do not actually possess the weapon but who commit an overt act in furtherance of its use by a coperpetrator?", which is almost the precise issue presented in the instant case. Id. at 1271. The supreme court answered the question in the negative, holding that when a defendant is charged with a felony involving the "use" of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony. In this case, the evidence plainly establishes that Rodriguez did not have personal possession of the rifle during the commission of the felony. We reject the State's contention that Rodriguez's sentence should be enhanced on the theory of constructive or vicarious possession based on the conduct of the codefendant. Id. at 1272 (emphasis added). Analogously, in James v. State, 868 So.2d 1242 (Fla. 4th DCA 2004), this court held that the defendant's sentence for possession of a firearm by a felon could not be enhanced under the minimum mandatory sentence provision of section 775.087, which applies to any person who actually possesses a firearm during the commission of certain offenses. This court explained that because the underlying offense in James, possession of a firearm by a convicted felon, could be proven either by an actual or a constructive possession theory, that conviction alone would be insufficient to apply the enhancement provision. Id. at 1245. The state must prove actual possession, which requires a jury finding. Id.; see Overfelt, 457 So.2d at 1387. In the present case, it is undisputed that Blanc did not actually possess, carry or use, etc., a firearm. The information specifically charged only Blanc's two co-defendants, not Blanc, with carrying, displaying, using, threatening or attempting use of a firearm and the arrest affidavit reflects that Blanc did not have a firearm. Therefore, the enhanced penalty under section 775.087(1) was not applicable to Blanc's sentencing. Based on the foregoing, we reverse the sentence and remand this case *458 to the trial court for re-sentencing in accordance with this opinion. REVERSED AND REMANDED. WARNER and HAZOURI, JJ., concur.	{ "pile_set_name": "FreeLaw" }
472 F.2d 960 UNITED STATES of America ex rel. Raymond G. LASKY,Petitioner-Appellant,v.Hon. J. Edwin LaVALLEE, Superintendent, Clinton CorrectionalFacility, Dannemora, New York, Respondent-Appellee. No. 211, Docket 71-1841. United States Court of Appeals,Second Circuit. Argued Oct. 18, 1972.Decided Jan. 19, 1973. Robert Hermann, Robert Kasanof, The Legal Aid Society, New York City, for appellant. John Proudfit, Iris A. Steel, Asst. Attys. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., State of New York, for appellee. Before WATERMAN, SMITH and KAUFMAN, Circuit Judges. WATERMAN, Circuit Judge: 1 This appeal is from a denial on June 9, 1971, without an evidentiary hearing, of a petition for a writ of habeas corpus filed by petitioner Lasky pro se on February 4, 1971 in the United States District Court for the Southern District of New York. On August 26, 1971 we granted petitioner's motion for a certificate of probable cause, for leave to proceed in forma pauperis, and for assignment of counsel. Upon a careful review of the entire record we are persuaded that petitioner's request for habeas corpus relief should be granted. Accordingly, we reverse the order below and order that petitioner be released from custody unless the State of New York shall resentence him within sixty days following the date our mandate is filed in the district court. 2 On September 9, 1965 a Dutchess County New York State grand jury indicted petitioner for the crimes of grand larceny in the first degree, burglary in the third degree, and conspiracy to commit burglary and larceny. After a jury trial he was found guilty on all the counts. On February 2, 1966, before petitioner was to be sentenced, the district attorney filed a fourth felony offender information under Section 1942 of the New York Penal Law of 19091 McKinney's Consol.Laws c. 40 charging Lasky with having been convicted of four prior felonies.2 At the hearing which followed, conducted by the sentencing judge, petitioner admitted he was the person who had been the subject of the prior convictions but he challenged the validity of all of them on constitutional grounds.3 This appeal involves Lasky's claim that the 1960 Arkansas conviction (see footnote 2) could not be used as a predicate offense for the enhancement of sentence because it was obtained when he was without the assistance of counsel.4 The sentencing judge then instructed Lasky that the burden was upon him to prove that the Arkansas conviction was void, and the hearing was adjourned until February 23, 1966. 3 When the hearing resumed Lasky took the stand. He testified that, indeed, he pleaded guilty to the Arkansas charges. However, he stated that he did not have the assistance of counsel there; and, of course, an affirmative waiver of assistance cannot be presumed. Lasky stated that he remembered telephoning a local attorney from the county jail following his Arkansas arrest but that he was unable to raise the money for the attorney's fee.5 He also testified that he talked to somebody at court who instructed him to plead guilty but that he did not know whether that man was a lawyer. When asked if he had heard of a man named Harry Robinson he answered: "I don't recall it. I might have heard of him." When asked whether Harry Robinson was appointed to defend him he answered: "I have been thinking of it. I don't have any recollection." 4 After Lasky testified the state introduced a certified copy of the Arkansas conviction and it has been examined by us. The document discloses that on April 4, 1960 Lasky pleaded guilty and that he appeared "in proper person"-a phrase historically meaning "by himself." Quite significantly, in view of the inclusion of this phrase, the document is silent as to whether Lasky was represented by counsel. Apparently the State also introduced a second Arkansas document, labeled a Penitentiary Commitment, which contained the "transcript" of the judgment of conviction for lodgment with the prison authorities. This document also recites that Lasky appeared before the court "in proper person" but even more significantly the printed words "by his attorney" which are part of the printed form on the face of this commitment document had been crossed out by typewriter typing. 5 At this point the trial judge again adjourned the hearing so as to enable the State to search out additional evidence. The hearing was resumed on March 2, 1966 and the district attorney appears to have placed into evidence a "record of a hearing" which he allegedly had received from the clerk of the Arkansas court, "showing that the defendant was represented by counsel, Mr. Harry Robinson." This statement identifying a "record of a hearing" is referred to in the stenographic minutes of the Dutchess County Court proceedings. However, that record is not before us.6 Petitioner suggests that this so-called "record" is only the docket sheet which the district attorney furnished the trial judge that same day and which we now have before us. We find reasonable and are inclined to accept petitioner's representation that a separate document never existed. Such a document, bearing so directly upon the length of time the prisoner would be deprived of his freedom, if, in fact, some other document than the docket sheet, would surely have been marked as a People's Exhibit and would have been carefully preserved by the State. In any event, the Arkansas court's docket sheet introduced by the State contained two handwritten entries, one dated March 7, and one dated April 4. The March 7 entry stated that Lasky and his codefendant, one Davis, pleaded not guilty and that "Harry Robinson was appointed to defend." It does not state that Harry Robinson was appointed to defend Lasky or that he ever appeared on Lasky's behalf. The April 4 entry stated that Lasky pleaded guilty to the charges and there is no indication whatever that an attorney was present at the time of the plea. In any event, at the conclusion of these twice adjourned hearings the New York state trial judge found Lasky to be a fourth felony offender and sentenced him to prison for the mandatory term of fifteen years to life, a term Lasky is presently serving in the Clinton Correctional Facility in Dannemora, Clinton County, New York. 6 The issue presented by this appeal is whether the credible evidence at the State's sentencing proceedings was sufficient to support the judge's finding that Lasky had counsel when he pleaded guilty in Arkansas.7 If Lasky was not represented by counsel New York State cannot use the conviction for the purpose of enhancing Lasky's sentence. See, e. g., Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). 7 The State argues that the record contains ample evidence to support the findings of the federal judge below and that this court is bound by the "clearly erroneous" standard of review. We cannot agree. Customarily when this court reviews the factual findings of the lower court the "clearly erroneous rule" applies (Rule 52(a) Fed.R.Civ.P.), but in this case, where the factual findings of the district judge are made solely on the basis of an interpretation of documentary records, and the credibility of witnesses is not in issue, we may make our own independent factual determination. See, e. g., Orvis v. Higgins, 180 F.2d 537, 538 (2 Cir. 1950), cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950); Luckenbach S. S. Co. v. U. S., 157 F.2d 250, 251 (2 Cir. 1946); Kind v. Clark, 161 F.2d 36, 46 (2 Cir. 1947), cert. denied, 332 U.S. 808, 68 S.Ct. 107, 92 L.Ed. 385 (1947); Moore, Federal Practice, Sec. 52.-04 at 2683 (2 ed. 1971). Also, inasmuch as this is a habeas corpus proceeding, the federal courts, both trial and appellate, must also determine what weight should properly be given to all relevant factual determinations of the New York state court whose judgment is challenged by the habeas. Under 28 U.S.C. Sec. 2254 a state court's factual determination shall be presumed to be correct if it is "evidenced by a written finding, written opinion, or other reliable and adequate written indicia." We have before us the stenographic minutes of the Dutchess County Court proceeding and the contents of such stenographic minutes might ordinarily qualify as reliable indicia to support the factual findings of the state court. However, in this case where reference is made in the minutes to the important "record" document of the Arkansas hearing and such a document, separate from the docket record, cannot be found, the reliability of the minutes is cast into doubt. Moreover, if one restrained of his liberty by state action claims the restraint arises from the deprivation of his federal constitutional rights and the state court's contrary factual determinations rest on a pertinent part of the record which the state cannot provide, the federal court is statutorily authorized to disregard the state court findings and substitute its own. 28 U.S.C. Sec. 2254(e). In this case the missing "record" of the Arkansas proceeding though searched for by the federal district court, by defense counsel, and presumably earlier by the state officers, remains missing. Moreover, petitioner argues with compelling force that the document referred to is really the Arkansas docket record, a record which is not missing. In view of the ambiguity of the stenographic minutes and the likelihood that the "record" referred to may well be the docket record, we conclude that we should disregard the findings of the state court and accordingly proceed to adjudicate the issues before us upon the evidence before us. 8 Once petitioner Lasky challenged the constitutionality of his Arkansas conviction the State had the burden of going forward with sufficient evidence to rebut Lasky's allegation that he was denied counsel. United States ex rel. Savini v. Jackson, 250 F.2d 349 (2 Cir. 1957); U.S. ex rel. Easterling v. Wilkins, 303 F.2d 883 (2 Cir. 1962). The State introduced: (1) the certified copy of the judgment which states that Lasky came "in proper person"; (2) the Penitentiary Commitment from which the words "by his attorney" are crossed out by a typewriter; (3) the March 7 docket entry which states as to two defendants than an Arkansas attorney, one Harry Robinson, "was appointed to defend"; and (4) the April 4 docket entry which makes no mention whatever of counsel being present at the time of Lasky's guilty plea. On the basis of this documentary record we do not find any credible evidence affirmatively indicating that Lasky was represented by counsel at any critical stage of the Arkansas proceedings, and we find that New York State has not sustained its burden of going forward.8 Although Lasky did not testify unequivocally that he was not represented by an attorney, the totality of his testimony leaves the clear impression that he doesn't remember being represented by counsel and that he doesn't believe he was represented. Moreover, the conviction document, silent when docket regularity would require that a counsel's appearance be noted, raises the presumption that Lasky did not have counsel. Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); see Oswald v. Crouse, 420 F.2d 373 (10 Cir. 1969); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). 9 None of the additional evidence presented by the State is sufficient to rebut this presumption. The ambiguous phrase of the March 7 docket entry that Harry Robinson was "appointed to defend" is too imprecise to constitute evidence one way or another, see Harris v. Boles, 349 F.2d 607 (4 Cir. 1965).9 The excision of the words "by his attorney" on the Penitentiary Commitment tends to indicate that, when convicted, Lasky was not represented by counsel.10 Inasmuch as the missing "record" of the Arkansas hearing is not before us and quite possibly is the docket record, we cannot assign independent evidentiary weight to that. On balance, therefore, it appears that there is, on the one hand, credible evidence indicating that Lasky did not have counsel, and, on the other hand, little or no probative evidence that he did have. Accordingly, we cannot permit the Arkansas conviction to be used by New York for the purposes of enhancement of sentence. As stated by Justice Douglas in Burgett v. Texas, supra: "To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526 (1966) ) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right." 389 U.S. at 115, 88 S.Ct. at 262. 10 In view of the foregoing it is apparent that nothing would be gained by a remand to the district court with instructions to conduct an evidentiary hearing on petitioner's claim. There is no evidence which could be submitted to the district court which has not already been before us. We therefore reverse the judgment below and order that petitioner-appellant Lasky be discharged from state custody unless within 60 days he is resentenced by the state court without the use of the 1960 Arkansas conviction to enhance the punishment given him for the New York crimes. See United States ex rel. Diblin v. Follette, 418 F.2d 408, 411 (2 Cir. 1969). 1 New York Penal Law of 1909 has been superseded by New York Penal Law of 1965, effective September 1, 1967 2 The four prior out of state felonies charged in the information are as follows: (1) Burglary and larceny, Circuit Court of Pulaski County (Little Rock) Arkansas, April 4, 1960, three year sentence; (2) Breaking and entering, Superior Court of Fairfield County (Bridgeport) Connecticut, November 14, 1958, one to three year prison term; (3) Forgery, Superior Court of Fairfield County, February 9, 1956, one year sentence; and (4) Forgery, in the Superior Court of Fairfield County on January 12, 1955, one year suspended sentence. Under New York law the 1955 forgery offense which resulted in only a suspended sentence could not be used as a predicate offense in a fourth felony offender information. People ex rel. Jobissy v. Murphy, 244 App.Div. 834, 279 N.Y.S. 762 (3d Dept.), aff'd mem. 268 N.Y. 695, 198 N.E. 562 (1935), cert. denied, 298 U.S. 661, 56 S.Ct. 752, 80 L.Ed. 1386 (1936); People ex rel. Mareley v. Lawes, 254 N.Y. 249, 172 N.E. 487 (1930); People ex rel. La Placa v. Murphy, 252 App.Div. 827, 299 N.Y.S. 336 (3d Dept. 1937), aff'd mem. 277 N.Y. 581, 13 N.E.2d 779 (1938). 3 Apparently the challenges to the Connecticut convictions later were discontinued, leaving only a challenge to the Arkansas conviction 4 A prior conviction cannot be used by a state in order to enhance punishment under a recidivist statute unless that conviction was obtained in a constitutional manner. See, e. g., Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); U. S. ex rel. Easterling v. Wilkins, 303 F.2d 883 (2 Cir. 1962); U. S. ex rel. Sileo v. Martin, 269 F.2d 586 (2 Cir. 1959); U. S. ex rel. Savini v. Jackson, 250 F.2d 349 (2 Cir. 1958) 5 The testimony of the hearings of February 2, February 23, and March 2 was taken down by a court reporter and these stenographic minutes were submitted to the district court below and have been submitted to us. The factual background described in the text is based on the submitted minutes. Although in his brief counsel for Lasky challenges the accuracy of some portions of the minutes he does not dispute the accuracy of the transcription of Lasky's own testimony 6 Neither the district judge below nor defense counsel have been able to secure or locate this "record," whatever it is or whatever it was represented to be, and the State has been unable to introduce a copy of it into evidence. Moreover, neither the present District Attorney nor the Public Defender of Dutchess County has ever heard of the "document" and there is no record of it in their files. There seems to be serious question whether such a separate "document record of an Arkansas hearing" other than the docket record ever existed 7 Lasky has clearly exhausted his state court remedies on the issue. By a 5-2 decision, Chief Judge Fuld and Judge Burke dissenting, the New York Court of Appeals affirmed the New York conviction as a fourth felony conviction. A majority of the highest New York court concluded that the burden of proving non-representation was properly placed upon the defendant and held that "on balancing the evidence brought forth by both the prosecution and the defense at the hearing, we can only conclude that the defendant failed to carry his burden of proof as required by law." People v. Lasky, 31 N.Y.2d 146, 335 N.Y.S.2d 266, 268, 286 N.E.2d 712 (1972). In dissent, Judge Fuld said that in his view "the appellant was not represented by counsel in Arkansas at the time of his conviction on April 4, 1960-unquestionably the most critical stage of the proceeding." 8 Petitioner claims that the burden of proof, i. e., the risk of non-persuasion, was on the State as a matter of constitutional law, and that the state trial judge was in error in instructing Lasky that the burden was on him. Although there is some authority for this proposition, see United States v. Lufman, 457 F.2d 165, 166-167 n. 2 (7 Cir. 1972); Woods v. United States, 457 F.2d 185 (7 Cir. 1972), we find no need, in the light of our above holding, to address ourselves directly to this issue 9 See also dissenting opinion of Chief Judge Fuld of the New York Court of Appeals, 31 N.Y.2d 146, 335 N.Y.S.2d 266, 270, 286 N.E.2d 712 (July 6, 1972) 10 The State suggests that the only reason the words "by his attorney" were "xed" out of the Penitentiary Commitment form was to conform it to the certified conviction document which did not contain the phrase. However, it seems even more plausible that if Lasky had had counsel during the court proceedings the clerk of the Arkansas court would have added the phrase "by his attorney" to the conviction document, thereby eliminating any need to excise the phrase from the printed Penitentiary Commitment form	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR PUBLICATION File Name: 09a0475n.06 No. 08-3702 FILED UNITED STATES COURT OF APPEALS Jul 09, 2009 FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk EDMOND BEDALLI, ) LJUBICA BEDALLI, ) JULJAN BEDALLI, and ) PETITION FOR REVIEW OF THE ANA BEDALLI, ) BOARD OF IMMIGRATION APPEALS ) Petitioners, ) OPINION ) v. ) ) ERIC H. HOLDER, JR., ) ) Respondent. ) ) Before: MOORE and GILMAN, Circuit Judges; and PHILLIPS, District Judge.* THOMAS W. PHILLIPS, District Judge. Petitioner Edmond Bedalli, a native Albanian and citizen of Montenegro,1 seeks review of the order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen asylum proceedings and additionally alludes to review of the denial of his motion to reconsider the asylum proceedings. Petitioner initially applied for asylum and alternatively for withholding of removal, which the immigration judge below denied and the Board of Immigration Appeals (“BIA”) affirmed without opinion. Over four years later, petitioner moved * The Hon. Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee, sitting by designation. 1 Bedalli’s wife Ljubica and children Juljan and Ana are included as petitioners. They are dependent on Edmond, however, and for simplicity’s sake, references in the record and herein are solely to Edmond and the singular “petitioner.” to reopen these proceedings, which motion the BIA denied as untimely on May 7, 2008. Petitioner separately filed a motion to reconsider on June 3, 2008, which the BIA denied on January 15, 2009. For the reasons set forth below, we DENY the petition for review. I. BACKGROUND Petitioner and his family are ethnic Albanians who formerly lived in Montenegro, of the former Yugoslavia. Petitioner alleges that he and his extended family have suffered a “long history of persecution at the hands of the communists and subsequent socialist governments” because of their activity in anti-communist Albanian politics. After moving to Montenegro in the early 1990s, petitioner was placed in the military reserves. On or about May 4, 1999, he received a draft notice calling him to active duty, which petitioner ignored. Accordingly, on or about May 22, 1999, the military police arrived at his house to arrest him. Although petitioner initially complied voluntarily, he later escaped custody and went into hiding. After fleeing to Italy, petitioner entered the United States via Philadelphia in August 1999. On March 3, 2000, petitioner applied for asylum, withholding of removal under the Immigration and Naturalization Act, and protection under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Petitioner claimed he would be incarcerated for evading military service and persecuted as an ethnic Albanian were he denied asylum and removed from the United States. His family having entered the United States in March 2000, all four family members were served with a Notice to Appear on or about January 31, 2001. -2- The immigration judge (“IJ”) denied petitioner’s application. First, the IJ held that petitioner had not met the standards for granting asylum, for which the applicant bears the burdens of proof and persuasion under 8 U.S.C. § 1158(b)(1)(B). Asylum may be granted if the applicant is determined to be a refugee. Id. § 1158(b)(1)(A). The IJ found that petitioner failed to meet this definition, having shown neither past persecution or a well-founded fear of future persecution, 8 C.F.R. § 208.13(b), as Slobodan Milosevic had fallen from power, there was general amnesty for military service evaders in both Serbia and Montenegro, and in any event it was reasonable to expect petitioner to return to his house in Montenegro, where he would be safe. Furthermore, petitioner had not established that there was a pattern or practice of persecuting Albanians in Montenegro. For these same reasons, the IJ also denied petitioner’s application for withholding of removal under the Immigration and Naturalization Act. See id. § 208.16(b) (standards for withholding of removal). The IJ likewise denied petitioner’s application for protection under the UN Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, as petitioner had not shown any evidence of past torture or of gross, flagrant, or mass violations of human rights and, in any event, there was evidence that petitioner could relocate elsewhere and avoid such persecution. Finally, the IJ denied petitioner’s application for voluntary departure (applicable to Edmond only, as the remaining family members were not statutorily eligible for voluntary departure) and ordered the removal of petitioner and his family members. On October 29, 2003, the BIA affirmed this decision without opinion, and on February 8, 2005, this court denied Bedalli’s petition for review. Bedalli v. Gonzales, No. 03-4524. On February 22, 2008, petitioner filed a motion to reopen with the BIA. Although motions to reopen must generally be filed within ninety days of the date on which the final administrative -3- decision was rendered, this time limitation does not apply, inter alia, “to a motion to reopen proceedings ... [t]o apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Petitioner argued that circumstances changed in Montenegro following its declaration of independence from the country then known as Serbia and Montenegro, the former Yugoslavia, in 2006, and Kosovo’s declaration of independence from Serbia in 2008. In support of his motion, petitioner filed, among other things, a 1995 Response to Information Request by the INS Resource Information Center in Washington, D.C., contending that ethnic Albanians were at risk if conscripted into the Serbian army or if they avoided conscription. Petitioner further argued that the Montenegrin government was persecuting ethnic Albanians, three of whom are naturalized U.S. citizens, by falsely arresting them as terrorists so that it could subject them to detention and torture. Finally, petitioner cited the demonstrations and riots against Albanians and the United States following Kosovo’s declaration of independence on February 17, 2008 and the United States’s support thereof as evidence that he would be persecuted upon his return. On May 7, 2008, the BIA denied the motion to reopen as untimely. It found that petitioner and his family had “failed to demonstrate how these circumstances would objectively affect their claim of persecution or torture.” Because petitioner had not adequately shown how the circumstances cited would affect him, the BIA found that the evidence was “inadequately material” and therefore petitioner was not subject to the exception to the ninety-day deadline. Petitioner then filed a motion to reconsider on June 3, 2008, which was denied on January 15, 2009. -4- The petition for review, filed on June 6, 2008, cites only the May 7, 2008 decision of the BIA denying Bedalli’s motion to reopen. Petitioner now argues, albeit in cursory references without elaboration, that the motion to reconsider should have been granted. The Attorney General (“AG”) opposes the petition, arguing that petitioner has not shown changed circumstances; that even if he had, they are not material; and that petitioner has failed to meet his burden of showing that the information was not previously available, particularly with regard to the 1995 report. The AG further argues that the BIA’s denial of petitioner’s motion to reconsider is not properly before this court for review. II. ANALYSIS A. Standard of review “The denial of a motion to reopen or reconsider a removal order is reviewed for an abuse of discretion.” Huang v. Mukasey, 523 F.3d 640, 654 (6th Cir. 2008) (quoting Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003)). “This Court will find an abuse of discretion if the denial of the motion to reopen [or reconsider] ‘was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.’ ” Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir. 2009) (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). B. Motion to Reopen A motion to reopen must generally be filed within ninety days after the issuance of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R § 1003.2(c)(2). There are few exceptions to this deadline; applicable to the instant case is an exception for a reapplication “for -5- asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229(c)(7)(C)(ii). “In order to justify the reopening of proceedings based on changed country conditions, the movant ‘cannot rely on speculative conclusions or mere assertions of fear of possible persecution, but instead must offer reasonably specific information showing a real threat of individual persecution.’ ” Al Roumy v. Mukasey, 290 F. App’x 856, 859 (6th Cir. 2008) (quoting Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004)). In support of his motion to reopen, petitioner submitted a 1995 report regarding the risks ethnic Albanians face if conscripted into the army or if they avoid being conscripted; a 2007 report from the Office of the Coordinator for Counterterrorism of the U.S. Embassy regarding terrorism and counterterrorism in Montenegro and specifically discussing the September 9, 2007 arrest of fourteen ethnic Albanians; an Amnesty International report on Montenegro, likewise discussing the events of September 9, 2007; a report from the Albanian American Civic League entitled, “The Albanian American Civic Condemns the Illegal Arrest and Torture of 14 Albanians, Three of Them U.S. Citizens, in Montenegro: Calls on the U.S. Government to Prevent a Cover-Up”; an article from the Detroit Free Press reporting on two of the three U.S. citizens arrested, who were Michigan residents; a news article by the Oakland Press about the third U.S. citizen arrested and his family’s struggle for his release; and the affidavit of Prenik Camaj, a family friend and expert on the former Yugoslavia. The BIA found these submissions were insufficiently material to petitioner’s claim and denied petitioner’s motion on that basis, not specifically addressing whether petitioner had demonstrated that circumstances had changed. The BIA held: -6- The respondents now submit evidence that various United States citizens have been arrested as terrorists in Montenegro. However, the respondents have failed to demonstrate how these circumstances would objectively affect their claim of persecution or torture. While the government of Montenegro might be aware of the respondents’ return to the country, we do not find that the respondents have demonstrated that such conditions have reasonably created a likelihood that they would be persecuted or tortured, and we, therefore, find that the evidence submitted in the respondents’ motion is inadequately material to their claim. As an initial matter, the first exhibit, a 1995 report regarding the risks ethnic Albanians face if they, like petitioner, avoid conscription in the army, was clearly available at the time of petitioner’s underlying application for asylum and withholding of removal and is therefore not considered as evidence of changed circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii) (ninety-day time limitation does not apply if evidence of changed circumstances is both material and “was not available and could not have been discovered or presented at the previous hearing”). While the BIA did not specifically exclude this evidence, neither did the BIA explicitly reference it in its opinion. The opinion instead focuses on the materiality of evidence of the September 9, 2007 arrests of fourteen ethnic Albanians, which primarily comprises the remainder of petitioner’s submissions. This court will likewise focus its analysis on the remaining evidence, with the specific finding that the 1995 report should not be considered. With regard to whether the BIA abused its discretion in finding that the remainder of the evidence was not material, the case of Kalaj v. Mukasey, 276 F. App’x 465 (6th Cir. 2008) (per curiam), is particularly instructive. The Kalajs were native Albanians seeking asylum or withholding of removal. In affirming the order of the BIA denying the Kalajs’ motion to reopen, we found: The Kalajs’ proffered “evidence” falls woefully short of this standard. It consists of a random collection of Internet articles principally describing on-going political tension between the ruling Democrats and the opposition Socialists in Albania, along with two country reports (one from the U.S. State Department and a second from a -7- now-defunct human rights organization) describing both positive and negative developments in Albania’s recent human rights record. There is nothing even remotely individualized in these documents, and we will not find that the BIA abused its discretion in refusing to reopen a case when presented with such equivocal and anecdotal evidence of changed country conditions. We have repeatedly rejected similar attempts by Albanian petitioners to reopen their asylum cases based on largely unsubstantiated allegations of worsening conditions in their country. Id. at 467. Similarly, in Grishaj v. Gonzales, petitioner was an ethnic Albanian from Kosovo. Grishaj v. Gonzales, 192 F. App’x 493, 494 (6th Cir. 2006). The court, inter alia, upheld the BIA’s denial of his motion to reopen, which he had supported with an updated report on the status of political and human rights conditions in Kosovo, because the submitted documents “did not offer material evidence sufficient to change the original finding that Grishaj has no well-founded fear of future persecution.” Id. at 498. Likewise, in Krcic v. Gonzales, petitioners, ethnic Albanians and citizens of Montenegro, had moved to reopen their proceedings based in part on worsening conditions in Serbia and Montenegro. Krcic. v. Gonzales, 186 F. App’x 541, 541 (6th Cir. 2006) (per curiam). Petitioners substantiated their motion to reopen “principally [with] articles and press releases describing the 2003 assassination of Prime Minister Zoran Djindjic, which led to a 42 day state of emergency.” Id. at 542. We upheld the BIA’s denial of the motion to reopen, finding that “there [was] nothing in the record to connect that assassination to the Krcics or to rebut the finding of the Board that ... ‘[t]he Report does not indicate widespread actions against ethnic Albanians in Montenegro.’” Id. at 542-43 (quoting BIA opinion below). Accordingly, we did not find that the BIA had abused its discretion in denying the motion to reopen. Id. at 543. -8- These cases demonstrate a general pattern of upholding the BIA’s denial of a motion to reopen where the petitioner had substantiated the untimely motion with generalized news articles and reports. In the instant case, the evidence submitted by petitioners is of a substantially similar nature, consisting primarily of news articles and other accounts of the September 9, 2007 arrest of fourteen2 ethnic Albanians, three of whom are U.S. citizens, for alleged terrorist activities in Montenegro. Petitioner has argued that the cited grounds of terrorism for this arrest was merely a pretense to allow for the persecution and torture of these ethnic Albanians. He then extrapolates from this apparently isolated incident, arguing that it demonstrates “that Albanians returning to Montenegro[] from Albania or the United States run the risk of being arrested, tortured and thrown into jail.” Accordingly, petitioner argues, he has proven that he has a well-founded fear of future persecution should he return to Montenegro. Yet this is pure conjecture. Even assuming arguendo the illegality of these arrests, petitioner has shown nothing to connect this incident to his plight. See Krcic, 186 F. App’x at 542 (“[T[here is nothing in the record to connect that assassination to the Krcics ....”). Moreover, his allegation that ethnic Albanians are being persecuted and tortured on a widespread basis and he therefore is certain to be persecuted and tortured is without substantiation. Even if it were substantiated, “[t]he feared persecution must relate to the alien individually, not to the population generally.” Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (quotation marks omitted). The most individualized information petitioner offered the BIA was the affidavit of Prenik Camaj. Mr. Camaj elaborates on petitioner’s family history and alleged history of persecution in Albania and Montenegro. This information, however, does not demonstrate any changed 2 The Amnesty International report submitted by petitioner states that seventeen individuals were arrested. -9- circumstances since petitioner’s initial application for asylum, and insofar as it discusses the events of September 9, 2007 and the ongoing persecution of ethnic Albanians, again, petitioner has failed to show how such incidents are material to his individual case. In sum, the evidence proffered by petitioner shows no “reasonably specific information showing a real threat of individual persecution.” Harchenko, 379 F.3d at 410 (quotation omitted). Accordingly, the BIA offered a rational explanation for denying petitioner’s motion to reopen, namely, that even assuming he had proven changed circumstances, he had not proven the materiality of those circumstances to his individual case. The BIA did not abuse its discretion, and therefore we affirm the decision of the BIA to deny petitioner’s motion to reopen. B. Motion to Reconsider Petitioner references his motion to reconsider in his brief on appeal, including it as an issue in his Statement of the Issues and arguing in his Conclusion that the BIA “erred in not [r]eopening Petitioner’s case as the factual basis for Petitioner’s Motion to Reopen and Motion for Reconsideration demonstrated the persecution and clear prejudice Petitioner suffered.” Yet because he did not include his motion to reconsider in his petition for review, there is somewhat of an ambiguity as to whether petitioner is attempting to petition for review thereof. To the extent he is, we find that this court does not have jurisdiction to consider the BIA’s denial of petitioner’s motion to reconsider. 8 U.S.C. § 1252(a)(5) provides that “[n]otwithstanding any other provision of law ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter.” A petition for review must be filed within thirty days after the date -10- of a final order of removal. Id. § 1252(b)(1). A separate petition must be filed for each order, however, or the petitioner waives review thereof. More specifically, An order of deportation becomes final when issued, irrespective of whether a motion to reopen or reconsider subsequently is filed. See Stone v. INS, 514 U.S. 386, 395 (1995) (holding that the filing of a motion to reopen or reconsider does not affect the finality of an underlying deportation order). As a consequence, a party who seeks reopening or reconsideration must file separate petitions for review within 30 days of each final order. Id. A party who fails to file a timely petition for review of an order waives appellate review of that order, as the statutory time for filing is both mandatory and jurisdictional. Id. at 405 (citing Missouri v. Jenkins, 495 U.S. 33, 45 (1990)). Qeraxhiu v. Gonzales, 206 F. App’x 476, 479 (6th Cir. 2006) (emphasis added) (internal citations to other case reporters removed). In the instant case, on June 3, 2008, petitioner filed a motion to reconsider. His petition for review, filed on June 6, 2008, identifies only an appeal of the BIA’s May 7, 2008 decision dismissing his motion to reopen as untimely. Moreover, petitioner has not filed a timely petition for review of the BIA’s order denying his motion to reconsider. Accordingly, there is no means of review of this order. 8 U.S.C. § 1252(a)(5) (“Notwithstanding any other provision of law ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter ....”); id. § 1252(b)(1) (“The petition for review must be filed not later than 30 days after the date of the final order of removal.”); Qeraxhiu, 206 F. App’x at 479; see also, e.g., Mu Ju Li v. Mukasey, 515 F.3d 575, 578 (6th Cir. 2008) (discussing Stone v. INS and noting that “[a]ccording to the [Supreme] Court, the statute’s consolidation provision [8 U.S.C. § 1252(b)(6)] contemplates that if the BIA issues an order denying the motion to reconsider, it is a separate order requiring a separate petition for review.”). -11- III. CONCLUSION Because petitioner has not shown that the denial of his motion to reopen was made without a rational explanation, inexplicably departed from established policies, or rested on another impermissible basis, we DENY his petition for review. In addition, since petitioner failed to petition for review of the order denying his motion to reconsider, this court does not have jurisdiction over the review thereof. -12-	{ "pile_set_name": "FreeLaw" }
117 B.R. 113 (1990) In re Louis B. YOUMANS, Debtor. Diana E. MUELLER, Trustee for Louis B. Youmans, Plaintiff, v. Louis B. YOUMANS, Eileen L. Youmans, Mainstay Federal Savings & Loan Association, New Jersey National Bank and Frederic J. Gross, Defendants. Bankruptcy No. 88-04500, Adv. No. 89-1290TS. United States Bankruptcy Court, D. New Jersey. August 15, 1990. 114 Diana E. Mueller, Cranbury, N.J., for plaintiff. Michael L. Detzky, Freehold, N.J., for defendants Louis B. and Eileen L. Youmans. MEMORANDUM OPINION STEPHEN A. STRIPP, Bankruptcy Judge. In this adversary proceeding plaintiff Diana E. Mueller, chapter 7 trustee, seeks to sell certain real property free and clear of liens and interests under § 363(b) and (h) of title 11, United States Code ("Bankruptcy Code" or "Code"), and to determine the validity, priority and extent of liens. The subject property, commonly known as 1420 Shafto Road, Tinton Falls, New Jersey, was owned by defendants Louis B. and Eileen L. Youmans as tenants by the entirety when Mr. Youmans filed his bankruptcy petition. The trustee believes there is substantial equity in the property, and she therefore wishes to sell it free and clear of all liens and interests to liquidate the interest of Mr. Youmans' estate in bankruptcy for distribution to his creditors. Mr. and Mrs. Youmans object to such a sale. On this motion they seek a ruling that Mrs. Youmans' interest should be measured in a manner which would lead to the conclusion that she owns substantially more than a one-half interest. They argue that she has one-half a life estate plus a remainder, that the percentage share of such interest must be measured according to actuarial tables, and that such measurement gives her substantially more than a half interest. The trustee argues that Mrs. Youmans' interest is a half interest, and the net proceeds of sale would be divided accordingly. Mr. and Mrs. Youmans defined their motion as one to determine applicable standards to measure the parties' interests in real property. The Court construes the motion as one for partial summary judgment 115 under Bankruptcy Rule 7056. This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(K) and (N). This shall constitute the Court's findings of fact and conclusions of law. I. Louis Youmans, an attorney[1], filed a petition for relief under chapter 13 of the Bankruptcy Code on July 8, 1988.[2] Chapter 13, entitled "Adjustment of Debts of an Individual with Regular Income," permits debtors to retain possession of their property while they attempt to confirm and consummate a plan to pay their creditors. However, Mr. Youmans was unable to meet the requirements for confirmation of a chapter 13 plan, and on June 6, 1989 an order was entered converting this case from chapter 13 to chapter 7. One of the purposes of chapter 7, entitled "Liquidation," is to sell those assets of a debtor which have equity and to distribute the net proceeds among the debtor's unsecured creditors. Such sales are the trustee's responsibility. The trustee in this case alleges that the subject property has a value of $205,000; that the aggregate amount due on the first and second mortgages is approximately $50,000; that costs of sale would be an estimated $20,500; that the net proceeds would be $134,500; and that one-half of the net proceeds, an estimated $67,250, would be available from such sale for distribution to Mr. Youmans' creditors, with the other half of the net proceeds going to Mrs. Youmans. The Court will assume for purposes of this motion that a sale of the property would realize net proceeds of approximately $134,500.[3] The dispute on this motion is how those net proceeds would be divided between the debtor's estate in bankruptcy and Mrs. Youmans. II. The filing of a bankruptcy petition creates an estate which under Code § 541 consists essentially of all legal or equitable interests of the debtor in property as of the commencement of the case. The trustee is the representative of the estate, and under Code § 704(1) a chapter 7 trustee must "collect and reduce to money the property of the estate for which such trustee serves, and close such estate as expeditiously as is compatible with the best interests of parties in interest." Code § 363(h) provides that the trustee may sell both the estate's interest and the interest of any co-owner in property in which the debtor had, at the time of the commencement of the case, an undivided interest as a tenant in common, joint tenant, or tenant by the entirety, but only if (1) partition in kind of such property among the estate and such co-owners is impracticable; (2) sale of the estate's undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co-owners; (3) the benefit to the estate of a sale of such property free of the interests of co-owners outweighs the detriment, if any, to such co-owners; and (4) such property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power. Experience has demonstrated that in cases such as this, § 363(h)(1), (2) and (4) are 116 usually stipulated or easy to prove, although the Court makes no findings on this motion as to their presence in this case. The ultimate battle in such cases is usually over § 363(h)(3), which requires that the Court find that the benefit to the estate of a sale of the entire property outweighs any detriment to co-owners who have not filed a bankruptcy petition. Thus, to summarize the applicable provisions of the Bankruptcy Code, where a debtor in a chapter 7 case was the co-owner at the commencement of the case of real property in which there is equity over liens, the trustee has a duty to attempt to sell such property and distribute the estate's share of the net proceeds among the holders of allowed unsecured claims. The Bankruptcy Court will usually authorize such sale if the benefit to the estate outweighs any detriment to the co-owners. III Under the Bankruptcy Act which was in effect prior to enactment of the Bankruptcy Code in 1978, the trustee did not have the power to sell real property over the objection of a co-owner. The following passage summarizes the situation which led to enactment of Code § 363(h): Generally, when one of the coowners of property owned jointly with another filed a petition in bankruptcy under the Bankruptcy Act, the trustee could sell only the bankrupt's interest and could not affect the interest of the other coowner. In most instances, a sale of the trustee's right, title, and interest in a joint tenancy or tenancy by the entirety produced only a nominal return for the estate since the purchaser acquired only an expectant estate, contingent upon surviving the other coowner. If the trustee were able to sell the entire estate owned by both coowners and account to the nonbankrupt coowner for such owner's pro rata interest, the purchase price and the estate's share would undoubtedly be higher than when the bankrupt's share was sold alone. Accordingly, in recognition of the economic realities with respect to the interests of coowners and in an effort to maximize the size and amount of the estate property, Congress empowered the trustee or debtor in possession to sell the entire estate, including the other coowner's interest, subject to certain conditions. 1 Norton Bankr. L. & Prac. § 24.18 (1981). Matters had been particularly difficult in cases where tenancies by the entirety were involved since the discharge of one spouse might preclude collection of a judgment against the non-bankrupt spouse from the property. 2 Collier on Bankruptcy ¶ 363.09, at pp. 363-36 to -37 (15th ed. 1989). It is therefore clear that Code § 363(h) was enacted to enable the trustee to realize more than had previously been available for the estate's interest in real property through sale of the property free and clear of all interests if the conditions listed in § 363(h) are met. IV The Supreme Court has held in Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), that the federal courts must generally look to state law to determine property interests: Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Id. at 55, 99 S.Ct. at 918. Under New Jersey law, "[e]ach tenant by the entirety is a tenant in common with the other during the joint lives of the spouses. Upon the death of a spouse, the survivor is then the sole owner." Newman v. Chase, 70 N.J. 254, 259, 359 A.2d 474, 477 (1976). Real property held by spouses as tenants by the entirety may not be partitioned. By contrast, real property held by tenants in common may be partitioned. Id. at 260-61, 359 A.2d at 477. A tenant by the entirety can alienate his or her right of survivorship, and a judgment creditor of either spouse may 117 levy and execute upon such right. King v. Greene, 30 N.J. 395, 412, 153 A.2d 49, 60 (1959). The purchaser at an execution sale of the interest of a debtor spouse in real property becomes a tenant in common with the nondebtor spouse. Newman v. Chase, 70 N.J. at 260, 359 A.2d at 477. However, partition is not automatically available in such situations under New Jersey law. Id. at 262, 359 A.2d at 478. It is within the equitable discretion of the Superior Court to deny partition. Id. at 266, 359 A.2d at 478. "Tenancies by the entirety, although originally based on the unity of husband and wife at common law, survive as a means of protecting marital assets during coverture and as security for one spouse on the death of the other." Freda v. Commercial Trust Company of New Jersey, 118 N.J. 36, 46, 570 A.2d 409, 414 (1990), citing Newman v. Chase. However, those social purposes are superseded by others when property held in tenancy by the entirety is sold: But whatever social purpose this tenancy was designed to serve in the interest of married parties and whatever the reasons for its continued existence in this State, there is no justifiable basis for extending it to the personal property which replaces it. To indulge in the further fiction necessary to achieve such a result serves no useful purpose and acts to frustrate justice. Furthermore, it runs counter to the policy of this State against recognizing the existence of tenancies by the entirety in personalty. [emphasis added] Fort Lee Sav. & Loan Ass'n v. LiButti, 106 N.J.Super. 211, 216-17, 254 A.2d 804, 807 (App.Div.1969) (Carton J., dissenting), rev'd on dissent below 55 N.J. 532, 264 A.2d 33 (1970). LiButti cites with approval the case of In re Ved Elva, Inc., 260 F.Supp. 978 (D.N.J.1966), in which the court held that a bankruptcy trustee's sale[4] of real property held in tenancy by the entirety destroyed the right of survivorship and rendered it worthless, so that a creditor who had levied only upon the debtor husband's interest was not entitled to any part of the sale proceeds: The Trustee's sale destroyed the right of survivorship of the debtor-husband, which petitioner could have sold before the fee title became vested in the Trustee who did sell, just as effectively as would have the death of petitioner's debtor before the other spouse. . . . So that no part of the proceeds of the Trustee's sale represented the debtor-husband's potential, future survivor interests the estate of the entirety with all its incidences, peculiar to spouses in New Jersey real estate, King v. Greene, supra, having been destroyed. [emphasis added] Id. at 982. Comparison of King v. Greene, Newman v. Chase and Freda v. Commercial Trust Company of New Jersey, on the one hand, with Fort Lee Sav. & Loan Ass'n v. LiButti and In re Ved Elva, Inc. on the other hand, leads to the following conclusions. The policy of the State of New Jersey reflected in the tenancy by the entirety favors protecting a marital residence during coverture to stabilize the marriage and protect the nondebtor spouse and any dependent children. However, if for some reason the property is nevertheless sold prior to the death of one spouse, the right of survivorship is completely destroyed and has no further value, because tenancies by the entireties in personal property do not exist in New Jersey. It follows that when hypothesizing such a sale for any reason, in or out of bankruptcy, no value should be ascribed to the right of survivorship after sale. If the right of survivorship is not a property interest which survives sale and constitutes part of the sale proceeds, then what are the owners' remaining interests, and how are they to be measured? Unless a husband and wife agree to a different arrangement before purchasing real property, they generally consider themselves to be equal owners, even if one spouse contributes more than one-half of 118 the purchase price. A legal presumption of equality of interests has therefore evolved. We are satisfied that based upon both the pronounced weight of authority and sound public policy the rule is and should be that where title is knowingly taken in both names and the wife provides the purchase money the appropriate presumption is gift by the wife to the husband of that undivided joint interest in the property which the deed purports to vest in him. Trotta v. Trotta, 103 N.J.Super. 295, 300, 247 A.2d 145, 148 (App.Div.1968). If the ownership interests of tenants by the entirety are presumed to be equal, then it follows that each is a half owner. The case law confirms that conclusion. In Interchange State Bank v. Riegel, 190 N.J.Super. 139, 144, 462 A.2d 198 (App.Div.1983), the court described each owner's interest as a half interest. For that proposition the court cited Newman v. Chase, in which it was held that the nondebtor co-owner was accountable to the person succeeding to the debtor's interest for one-half of the imputed rental value of the house. 70 N.J. at 267, 359 A.2d at 481. Newman v. Chase relied for that conclusion on Lohmann v. Lohmann, 50 N.J.Super. 37, 45, 141 A.2d 84 (App.Div.1958), in which it was held that in the event of an ouster by a tenant by the entirety, an ousted co-tenant has a right to one-half of the reasonable rental value of the premises. In Leonard v. Leonard, 124 N.J.Super. 439, 443-44, 307 A.2d 625, 627 (App.Div. 1973), the court held that where five parcels of real property owned by a former husband and wife are partitioned by transferring three parcels to one party and two to the other, the party receiving properties greater in value than his or her proportionate share must pay the other party the amount required to equalize the partition. And in ESB, Inc. v. Fischer, 185 N.J.Super. 373, 448 A.2d 1030 (Ch.Div.1982), the court set aside a fraudulent conveyance of real property by a husband and wife to the wife alone. The court required payment of one-half of the imputed rental value to the plaintiff, a levying judgment creditor of the husband. The court also held: In the event defendant wife chooses to convey the property to a third party, plaintiff shall be entitled to one-half of the net proceeds up to the amount of the outstanding balance on the debt. Id. at 381, 448 A.2d at 1034. The court concluded from the foregoing in Loeber v. Loeber, 12 B.R. 669, 674 (Bkrtcy.D.N.J.1981), that "[u]pon a division, severance or sale, barring a prior agreement to the contrary, the co-tenants share equally." Therefore, if real property formerly held in tenancy by the entirety and now held in tenancy in common by a bankruptcy trustee and nondebtor spouse is sold by the trustee, each of the owners is entitled to one-half of the net proceeds. V Butner v. United States, supra, holds that property interests are defined by state law "[u]nless some federal interest requires a different result. . . ." [emphasis added] 440 U.S. at 55, 99 S.Ct. at 918. Even if state law were to the contrary, cases under Code § 363(h) are among those referred to in Butner in which a federal interest may require a different result. It is important to note that in Newman v. Chase, the plaintiff had purchased the interest of the debtor spouse from his bankruptcy trustee for a nominal sum. As previously noted, under the Bankruptcy Act then in effect the trustee could sell only the debtor's interest in property. However, enactment of Code § 363(h) reflected Congressional dissatisfaction with that situation, and was intended to authorize sale of the entire property to increase cash available to the bankruptcy estate. Norton Bankr. L. & Prac., supra. Thus Code § 363(h) was intended to avoid the result in cases such as Newman v. Chase, by removing the prohibition against partition in bankruptcy cases and authorizing it if, inter alia, the benefit to the estate of such sale outweighs any detriment to the coowner. Congress has therefore determined that federal interests will sometimes require a different result in such situations than state interests might require. 119 Both state and federal law require a balancing of the interests of a nondebtor spouse and a sheriff's sale purchaser or bankruptcy trustee who are co-owners of real property. Since Newman v. Chase, the scales have usually tipped under state law in favor of the nondebtor spouse: "[w]here, as in the present case, a bankrupt husband lives with his young family in a modest home, we hold that it is within the equitable discretion of the court to deny partition to a purchaser of the husband's interest, leaving the creditor to resort to some other remedy." 70 N.J. at 266, 359 A.2d at 480. The problem with that conclusion in a bankruptcy case is, there usually is no other remedy to which the creditors can resort. Most adversary proceedings under Code § 363(h) arise in chapter 7 cases in which the marital residence is the primary or only property of the estate. Except for an occasional debt which is not discharged by virtue of Code § 523 because it was incurred by fraud or for other reasons set forth therein, discharge of a debtor in chapter 7 under Code § 727(b) terminates his liability for all prepetition unsecured claims. Therefore, if the creditors do not collect anything from liquidation of the estate's interest in the marital residence, as a matter of law they do not generally have another opportunity to collect after chapter 7 because their claim is wiped out. Because the suggestion in Newman v. Chase that the creditors look elsewhere or wait cannot be pursued after the typical chapter 7 case, there are different equities on the scales of justice here than there are outside of bankruptcy. That difference was one of the reasons for the enactment of Code § 363(h). If the bankruptcy courts must measure the property interests in such cases in the manner which Mr. and Mrs. Youmans propose here, the creditors will effectively be left in the same position that they held under the Bankruptcy Act, because sale of real property to liquidate a small ownership interest will likely occur far less often than sale to liquidate a one-half interest. A sheriff's sale purchaser or bankruptcy trustee is entitled to one-half of the net proceeds under ESB, Inc. v. Fischer, supra, if the nondebtor spouse consents to a sale of the property. Therefore, the method of measurement proposed by Mr. and Mrs. Youmans could only be used if the nondebtor spouse objects to the sale. Making the determination of the percentage shares of ownership contingent upon whether the nondebtor co-owner consents to sale or not would defeat the purpose of Code § 363(h) and effectively reinstate the pre-Code law. It follows that even if state law did require usage of a less favorable method of measurement of ownership interests when the nondebtor co-owner objects to sale, the federal interests embodied in Code § 363(h) require usage of the same method employed where the nondebtor co-owner consents to sale. Under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2, state law is suspended or void to the extent that it conflicts with federal law. VI In support of their position that Mrs. Youmans' interest is one-half a life estate plus a remainder and that such interest must be measured according to actuarial tables, Mr. and Mrs. Youmans rely upon the unreported decision in In re Fisher, No. 88-4129 (D.N.J.1989), and upon several cases which it cites. In In re Fisher (not to be confused with ESB, Inc. v. Fischer, supra), the bankruptcy trustee proposed to sell the estate's interest in certain real property held in tenancy by the entirety to the non-debtor spouse. The trustee apparently measured the nondebtor spouse's interest in the manner proposed by Mr. and Mrs. Youmans. A creditor objected to the sale, and then withdrew the objection, but the Bankruptcy Court retained jurisdiction and refused to approve the sale on the ground that the nondebtor spouse's share should be one-half of the equity. The District Court reversed on an unopposed appeal. The District Court relied upon the case of United States v. Rodgers, 461 U.S. 677, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983), which interpreted Internal Revenue Code § 7403, which permits the IRS to sell jointly owned property to satisfy a tax debt provided that a nondebtor co-owner is paid 120 his or her share of the sale proceeds. In Rodgers, the IRS proposed to sell property free and clear of a nondebtor spouse's homestead interest under Texas law. The Supreme Court held that Internal Revenue Code § 7403 authorized such sale. The case includes the following statement: The exact method for the distribution required by § 7403 is not before us at this time. But we can get a rough idea of the practical consequences of the principles we have just set out. For example, if we assume, only for the sake of illustration, that a homestead estate is the exact economic equivalent of a life estate, and that the use of a standard statutory or commercial table and an 8% discount rate is appropriate in calculating the value of that estate, then three nondelinquent surviving or remaining spouses, aged 30, 50 and 70 years, each holding a homestead estate, would be entitled to approximately 97%, 89%, and 64%, respectively, of the proceeds of the sale of their homes as compensation for that estate. In addition, if we assume that each of these hypothetical nondelinquent spouses also has a protected half-interest in the underlying ownership rights to the property being sold, then their total compensation would be approximately 99%, 95%, and 82%, respectively, of the proceeds from such sale. [emphasis in original; footnotes omitted.] Id. at 698-99, 103 S.Ct. at 2145. In Greene v. Levenhar, 30 B.R. 976 (Bkrtcy.E.D.N.Y.1983), a Bankruptcy Court relied on the passage from Rodgers quoted above to conclude that measurement under Bankruptcy Code § 363(h) of interests in tenancies by the entirety in New York must be done in the manner suggested by Rodgers. In In re Fisher the New Jersey District Court followed Rodgers and Levenhar, and criticized Loeber, supra, which held that the nondebtor spouse's share should be one-half of the equity. This Court finds Rodgers and Levenhar to be distinguishable, and the reliance placed upon them by In re Fisher is therefore misplaced. First of all, the property rights in Rodgers were defined by Texas law, and the property rights in Levenhar were defined by New York law. As Rodgers noted when attempting to compare Texas homestead rights with life estate and remainder interests, "analogy is somewhat hazardous in this area," because subtle differences in definitions of property interest can cause significant differences in results.[5]A fortiori, it is hazardous to compare Texas homestead rights with New York or New Jersey tenancies by the entireties. There may be significant differences between the laws of Texas, New York and New Jersey, or between the types of property interests in question, which limit the value of such comparisons.[6] Moreover, such comparisons are unnecessary because as noted in section IV above, New Jersey case law recognizes that tenants by the entirety and their successors in interest each own a one-half interest. The second reason why Rodgers is distinguishable is that Rodgers interpreted Internal Revenue Code § 7403, which is a different federal statute reflecting different federal interests. If the IRS cannot collect delinquent taxes through sale under Internal Revenue Code § 7403, the possibility exists that it may collect from other sources at some other time. However, as previously noted, in the typical bankruptcy case if the creditors don't collect from proceeds of sale under Bankruptcy Code § 363(h), they will never collect because the debtor is discharged of all debts. In enacting § 363(h) Congress expressed its intention that that result should be avoided in appropriate cases. Thirdly, even as applied to Texas homestead law, the statement in Rodgers quoted above is by its own terms admittedly dictum. 121 Because dicta are by definition statements not needed to decide a case, and which have not been tested by the adversarial process which enlightens the determination of issues, dicta are much less reliable than ratio decidendi, even when they are the dicta of Supreme Court justices. Who knows what the IRS could have shown in Rodgers about measurement of homestead rights under Texas law if the parties had put it in issue? For all of the foregoing reasons, this Court declines to follow Rodgers, Levenhar and In re Fisher, and follows ESB, Inc. v. Fischer and Loeber on the question of measurement at issue here. VII Mr. and Mrs. Youmans also argue that Mrs. Youmans has more than a one-half interest because she allegedly paid "a significant portion" of the down payment on the property and a disproportionate share of mortgage expenses and repairs.[7] Assuming, without finding, that these allegations are true, under New Jersey law Mrs. Youmans still owns only a one-half interest by virtue of the holding in Trotta v. Trotta, supra. As for the argument that Mrs. Youmans is entitled to credit if she paid a disproportionate share of mortgage payments and repairs, the case of Dorf v. Tuscarora Pipe Line Co., Ltd., 48 N.J.Super. 26, 37, 136 A.2d 778, 783 (App.Div.1957), held that expenditures made by a spouse on property held by the entirety are presumed to be gifts. That presumption may be rebutted by proof that such payments "were made with the intention, understanding or agreement that they should not be considered gifts, but such proof must be certain, reliable and convincing." Id. Mr. and Mrs. Youmans have offered no such evidence on this motion. It follows that absent proof by clear and convincing evidence to the contrary at trial, Mrs. Youmans will be conclusively presumed to own a one-half interest in the property. VIII As noted at the outset, the subject motion sought only partial summary judgment as to the standards applicable to measuring the parties' property interests. It has been held herein that where a bankruptcy trustee succeeds to the interest in New Jersey real property which a debtor spouse held in tenancy by the entirety with a nondebtor spouse at the commencement of a bankruptcy case, the bankruptcy estate and the nondebtor spouse each own one-half of the property, and the proceeds of any sale of the property will be divided accordingly. This opinion does not determine the ultimate issue of whether the property in this case shall be sold under Code § 363(h). As previously noted, that question usually boils down to whether the benefit to the estate of sale outweighs any detriment to the nondebtor spouse. The question is a difficult one where there is substantial equity which could be liquidated, but the nondebtor spouse has minor children and sale of the property would be a serious disruption of their lives, perhaps leaving the family without comparable substitute housing. That is of course why Newman v. Chase and its progeny have held as they have. By contrast, it has also been held that even where a nondebtor spouse and children will suffer substantial hardship, sale will be authorized under § 363(h) where it is the only way funds would become available for distribution to the debtor's creditors. Maiona v. Vassilowitch, 72 B.R. 803, 807 (Bkrtcy.D.Mass. 1987). The answer will always depend upon the facts of the case in question.[8] The attorney for the trustee is to submit an order consistent with this opinion under the five-day rule. NOTES [1] According to the New Jersey Law Journal, Thursday, May 24, 1990, 125 N.J.L.J. Index p. 1362, the New Jersey Supreme Court on May 18 suspended Mr. Youmans from the practice of law for two years for various offenses. The Supreme Court also ruled that restoration of Mr. Youmans' license will depend on the disposition of other matters under investigation. [2] This case is not to be confused with In re Louis B. Youmans, P.A., Case No. 85-02812, filed as a chapter 11 case on May 29, 1985, converted to chapter 7 on January 28, 1986, and still pending. The Court has recently been informed by the trustee in that case that there are insufficient funds therein to pay anything to its unsecured creditors. [3] This assumption shall not constitute a finding of fact for purposes of any subsequent trial in this adversary proceeding. It should also be noted that under Code § 522(d)(1), the debtor in this case is presumably entitled to exempt $7,500 in equity, and to receive that amount from the estate's share of any sale proceeds. [4] In Ved Elva both spouses filed a bankruptcy petition, so the Bankruptcy Act prohibition against sale of the interest of a nondebtor co-owner was not applicable. [5] 461 U.S. at 685-86, 103 S.Ct. at 2138. [6] For example, because the Supreme Court in Rodgers analogized the Texas homestead right to a life estate plus a remainder, the District Court in In re Fisher analogized each spouse's interest in a New Jersey tenancy by the entirety to one-half a life estate plus a remainder. However, 41 C.J.S. Husband and Wife, § 34 at p. 471 (1944) states regarding tenancies by the entirety that "the right of the survivor to the whole estate is merely an incident of an estate by the entirety and does not constitute a remainder, either vested or contingent." [emphasis added] [7] Letter brief dated March 7, 1990 in support of motion, p. 5. [8] There is no evidence in this case that Mr. and Mrs. Youmans have filed for divorce, and this opinion therefore does not address closely related questions as to the standards and forum for determining property interests in a marital residence where the spouses are simultaneously the subject of divorce and bankruptcy proceedings. The Superior Court divides the parties' property interests in a divorce case according to principles of equitable distribution. In such cases the Superior Court has discretion to transfer property interests between spouses without regard to the fact that up to that point they have usually each held a one-half interest. However, it is now beyond dispute in New Jersey that equitable distribution is subject to perfected liens existing at the time of entry of a judgment of equitable distribution. Freda v. Commercial Trust Company of New Jersey, supra; Interchange State Bank v. Riegel, supra; Sisco v. New Jersey Bank, 158 N.J.Super. 111, 385 A.2d 890 (App.Div.1978). It is also beyond dispute that as a matter of federal law, a bankruptcy trustee has the rights of a judgment creditor who levies on the debtor's property as of the date the bankruptcy petition is filed. Bankruptcy Code § 544(a)(1) and (2); In re Blease, 605 F.2d 97 (3rd Cir.1979). By operation of law the trustee is therefore deemed to have levied on the petition date on the debtor's one-half interest in jointly owned property. Since equitable distribution is subject to perfected liens, a serious question exists as to whether equitable distribution can affect a bankruptcy estate's one-half interest in a jointly-owned marital residence. As far as the question of forum is concerned, the District Court, and hence this Court by reference, has exclusive jurisdiction over all property of the estate by virtue of 28 U.S.C. § 1334(d). Bankruptcy Code § 362(a)(3) provides that the automatic stay applies to any act to exercise control over property of the estate. Therefore, where one or both of the parties to a divorce case files a bankruptcy petition, the Superior Court does not have authority to determine interests of a debtor in marital property unless relief from the automatic stay is obtained. Where only one party has filed a bankruptcy petition, the other often moves for relief from the automatic stay to permit the Superior Court to determine their property rights in the divorce case. In Kohn v. Hursa, 87 B.R. 313 (Bkrtcy.D. N.J.1988), it was held that 28 U.S.C. § 1334(c)(2) requires that the Bankruptcy Court abstain in such cases and permit the Superior Court to determine the property rights. I disagree with Hursa that mandatory abstention applies, because one of the elements of mandatory abstention is that the proceeding must be noncore, i.e. related, and in my opinion a proceeding to determine a debtor's rights in a marital residence is a core proceeding under 28 U.S.C. § 157(b)(2)(N) and (O). That does not preclude permissive abstention under 28 U.S.C. § 1334(c)(1), and I have heretofore abstained on occasion in such cases upon conditions intended to protect the rights of creditors. The concern which has been the basis for such conditions is that the parties can enter into a consent judgment providing for a distribution of property interests in their divorce case which is collusive or fraudulent as to the interests of the debtor's creditors. Since the creditors are not parties to the divorce case, there is presumably no reason for the Superior Court to consider the creditors' interests unless someone speaks on their behalf. I have heretofore decided the forum for such property divisions on a case-by-case basis. However, for the reasons stated in the first paragraph of this footnote, I now question whether it is ever appropriate to abstain in such cases, if as a matter of law equitable distribution cannot determine the bankruptcy estate's interest in the marital residence to be less than one-half. The answer to these questions is beyond the scope of this case.	{ "pile_set_name": "FreeLaw" }
807 F.2d 177 Fowlerv.C.I.R. 85-7716 United States Court of Appeals,Ninth Circuit. 12/19/86 1 U.S.T.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
203 So.2d 450 (1967) Anna L. PRUITT et al. v. Andrew W. KEY et al. 6 Div. 408. Supreme Court of Alabama. October 26, 1967. 451 Walter Joe James, Jr., Haleyville, for appellants. Tweedy & Beech, Jasper, for appellees. HARWOOD, Justice. This is an appeal from a judgment and decree denying a petition filed by Anna L. Pruitt and Leroy C. Pruitt, seeking to have the custody of four children awarded to them. The children are Wilford Andrew Dewayne Key, age 12 years, Anna Marie Key, age 6 years, Loyed Lee Key, age 4 years, and Patricia Jane Key, age 2 years. They are the children of Loyed Chandler Key, and Ethel L. Key, deceased. The record shows that Loyed C. Key and his wife Ethel moved from Alabama to the state of Indiana sometime in 1960, and lived there continuously until Ethel was killed by Loyed on 21 March 1965. Ethel's body was returned to Winston County, Alabama, for burial and Loyed Key and the children returned to Alabama for the funeral. After the funeral Loyed Key and his children, accompanied by his father and mother, Andrew W. Key and Beadie Adella Key, were returning to Loyed's home in Indiana, when in Kentucky, Loyed was arrested under an Indiana warrant charging him with the murder of his wife Ethel. Andrew W. Key and Beadie A. Key continued on to Indiana with the four children. Loyed, after his arrest, had requested his father (the grandfather of the children) to take the children back to Alabama and rear them. This the grandparents agreed to do, and the purpose of continuing the trip on to Indiana was to gather up the clothing of the children. The appellant, Anna L. Pruitt, was the sister of Mrs. Loyed Key, and therefore the aunt of the children. She and Mr. Pruitt assisted the Key grandparents in gathering together the children's belongings in Indiana. At this time Mrs. Pruitt offered to keep the children but Mr. Key replied that he had promised his son to take the children and rear them and he wanted to fulfill this obligation. The Key grandparents and the children returned to the Key home in Alabama on 27 March 1965. On 29 March 1965, the Keys filed a petition in the Circuit Court of Walker County Alabama, in Equity, seeking the custody of the children, and on that same day that court issued an order granting temporary custody, care, and control of the children to Mr. and Mrs. Andrew W. Key. On 15 April 1965, Loyed Key pleaded guilty to the murder of his wife Ethel, and was sentenced to life imprisonment in the Indiana State Prison. On 4 May 1965, Mr. and Mrs. Pruitt filed a petition in the Circuit Court of Grant County Indiana seeking to have the custody, 452 care, and control of the children awarded to them. On 12 May 1965, after a hearing, the Circuit Court of Walker County Alabama, entered a final order granting the control of the children to Mr. and Mrs. Key. On 20 May 1965, the Circuit Court of Grant County Indiana, entered an order awarding the temporary control of the children to Mr. and Mrs. Pruitt. It also appears that Mr. and Mrs. Pruitt sought to intervene in the proceedings in the Circuit Court of Walker County Alabama, on 29 June 1965, but this effort was belated and unsuccessful. Thereafter, on 22 December 1965, Mr. and Mrs. Pruitt filed a petition in the Circuit Court of Walker County Alabama seeking custody of the children. After a full hearing, the Circuit Court of Walker County Alabama entered a decree making extensive findings of fact and adjudging that the decree rendered on 12 May 1965 by the Circuit Court of Walker County Alabama, was a legal, valid, and binding decree as to the matter set out therein, and that the order rendered by the Circuit Court of Grant County Indiana on 20 May 1965, was not binding on the Circuit Court of Walker County Alabama, and therefore continued the custody of the children in the Key grandparents, and restrained all parties from removing the children from the State of Alabama without written permission of the court. The maternal relatives of said children were given reasonable visitation rights upon approval of such visits by the grandfather, Andrew W. Key. It is from this decree that this appeal was perfected. In the hearing below it was shown that Anna Pruitt and Leroy Pruitt are approximately 43 years of age; that they have been married some 26 years and are childless. Andrew Key is approximately 59 years of age and his wife is approximately 57 years of age. They have nine children all of whom are over the age of 21 years and all of whom are married. There are some 13 children of these marriages, that is, grandchildren of the Keys. Both the Pruitts, who live in Muncie, Indiana, and the Keys who reside in Walker County, Alabama, are substantial citizens and enjoy good reputations in their respective communities. While not wealthy, Mr. Key and Mr. Pruitt earn substantial incomes sufficient for the support of their families and each is able to pay for the support of the four children. While counsel for the appellant makes much of the difference in the ages of the Keys and the Pruitts, the testimony shows that Mr. and Mrs. Key are in excellent health and are fully able to carry out the additional burdens of caring for the four children. It is also significant that in the hearing below Andrew Dewayne Key, the eldest of the children and who was 13 years of age at the time of the proceedings below, testified that it was his desire that he be permitted to live with his Key grandparents. The evidence further shows that the two children of school age were promptly enrolled in the schools of Walker County, Alabama, where according to their teachers they are doing good scholastic work and are well adjusted and appear to be happy. Numerous witnesses familiar with the Key domestic setup, testified that all of the children appear to be well adjusted in their life with the Keys, are happy, well clothed, and healthy. The evidence further shows that Mr. and Mrs. Key have in addition to the custodial proceedings, processed adoption proceedings, and as adopted children of the Keys the children are entitled to receive medical and hospital insurance benefits from the United Mine Workers of America. Counsel for appellant first argues that the lower court failed to give full faith and 453 credit to the decree of the Circuit Court of Grant County, Indiana. This argument overlooks the fact that the temporary order granting the custody of the children to the Keys was entered on 4 May 1965, and that this order was made final by the Circuit Court of Walker County, Alabama, on 12 May 1965. While it is true that the appellants filed a petition for custody of the children in the Circuit Court of Grant County, Indiana, on 4 May 1965, no order was entered by the Indiana court until 20 May 1965, when that court granted temporary custody of the children to the Pruitts. The evidence is also undisputed that at the time of the orders entered by the Circuit Court of Walker County, the children were in the jurisdiction of that court and have continuously been within the jurisdiction of that court since they were brought to Alabama, while on the other hand, the children were not in Indiana at any time that the Indiana court entered its orders. The residence of a child alone is usually enough to induce a court to accept jurisdiction in a custody case. Leflar, Conflict of laws, Section 180. The full faith and credit clause of the United States Constitution does not compel a court to set aside a judgment rendered in an action involving the same issue which is subsequently adjudicated with a different result by a court of a sister state. To so conclude would result in giving greater faith and credit to the judgment of the other state than to the judgment duly entered in the court of the state rendering the first judgment. Hammell v. Britton, 19 Cal.2d 72, 119 P.2d 333. Counsel for appellant further argues that the children were wrongfully brought into Alabama by Mr. and Mrs. Key, and that therefore, as a matter of comity, the courts of Alabama should honor and enforce the Indiana decree. See State v. Black, 239 Ala. 644, 196 So. 713; Kugle et al. v. Harpe, 234 Ala. 494, 176 So. 617. This doctrine is, however, based on the premise of a forceable and surreptitious withdrawal of a child from a state whose courts had already assumed jurisdiction to determine the custody of the child. We do not find such condition in this case. It would seem only normal that the grandparents of the four children having them in custody at the time of the arrest of their father, and being importuned by the father to keep the children with them and take them back to Alabama and assume the responsibility of rearing them, would naturally return to their home with the children. No court had assumed jurisdiction to determine the custody of the children at this time, and we can read nothing wrongful in the action of the grandparents in the premises. Counsel for appellant further argues that the court erred in its decree in awarding the custody of the children to the Keys and in not awarding the children to the Pruitts. Counsel states that the evidence is without material conflict, and therefore no presumption is indulged in favor of the findings of the lower court. This is correct, and therefore the sole question is whether the court has misapplied the law to the undisputed facts. The paramount governing legal principle applicable to child custody cases is the welfare of the child, both presently and in the future. This principle is so firmly established as to require no citation of authorities. Counsel has cited and heavily relies upon Wright v. Price, 226 Ala. 591, 147 So. 886, wherein this court reversed and rendered a decree of the lower court awarding the custody to a maternal uncle as against the paternal grandmother. The uncle was in far better financial condition than was the grandmother. The evidence further showed that the grandmother, while she 454 had custody of the child had taken it on monthly visits to Kilby Prison to visit the child's father who was under sentence for having killed the child's mother. The court considered this an unwholesome situation. In the present case the father is imprisoned in Indiana, far removed from Alabama and the circumstances of the killing of the children's mother has never been discussed. They have never been taken to visit the father in Indiana, and so far as deducible from the evidence, such a visit is improbable. The financial condition of the parties is not so disparate as to be a serious factor. No two child custody cases are alike. The factors to be considered are as variable as the actions of the varied individuals seeking judicial determination of this most difficult and delicate question. Certainly in this type of case, the trial court who hears and sees the witnesses testify is particularly advantaged as compared with a reviewing court which must draw its conclusion from cold print. But the cases state that if the evidence is undisputed no presumption is to be indulged in favor of the findings of the trial court. However, we are now concerned only with whether the Chancellor misapplied the law to the undisputed facts, not with the findings made on undisputed facts. No presumption attends the Chancellor's application of the law to the facts. Actually, were we in doubt, we do not see how it could be rationally asserted that the legal principle governing, i. e., the welfare of the child, was misapplied in this case. The standards and guidelines are only generalities. After a study of this entire record, we are in accord with the Chancellor's decree, without resort to any presumptions. Affirmed. LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.	{ "pile_set_name": "FreeLaw" }
658 F.Supp. 322 (1986) MAURO v. BOARD OF HIGHER EDUCATION, et al. No. 86 Civ. 1831 (EW). United States District Court, S.D. New York. July 3, 1986. 323 Nicholas J. Mauro, pro se. Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, for defendants; Nicole A. Gordon, Grace Goodman, of counsel. EDWARD WEINFELD, District Judge. Plaintiff, a former instructor in the business department of Kingsborough Community College ("Kingsborough"), commenced this action against the Board of Higher Education, Kingsborough, City University of New York Chancellor Joseph P. Murphy, Kingsborough President Leon Goldstein, Vice President Israel Glasser, and the chairman of Kingsborough's business department, Melvin Levine. Plaintiff asserts claims of discrimination based on his race, color, gender and national origin in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Defendants move to dismiss the complaint on the ground that plaintiff's claims are time-barred. Two issues are presented by defendants' motion: 1) is plaintiff's Title VII claim time-barred for plaintiff's failure to file his EEOC complaint within 300 days of the discriminatory act; and 2) is plaintiff's § 1981 claim barred by the applicable statute of limitations.[1] Plaintiff pro se, a white Italian-American male, was informed by letter on November 16, 1981, that he had not been reappointed for the following academic year (1982-1983). By letter dated January 20, 1982, plaintiff was informed that his appeal from the decision not to reappoint him had been denied. Plaintiff's last day of employment was August 30, 1982. He filed his EEOC complaint on March 15, 1983. On November 8, 1985, the EEOC issued plaintiff a Right to Sue Letter, stating that plaintiff had failed to file his claim with the EEOC within 300 days of the alleged discriminatory act. Thereafter, plaintiff filed this complaint with the Pro Se office on January 13, 1986. Title VII Claim To be timely, a Title VII claim must be filed with the EEOC "within 300 days after the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(e). "The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past." Delaware State College v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). It is undisputed that plaintiff received notice of his termination on November 16, 1981. He filed his EEOC complaint 484 days later, on March 15, 1983. Thus, plaintiff's 324 Title VII claim is time-barred unless the Court applies the doctrine of equitable tolling. He contends he is entitled to such relief. The 300-day limitations period is not a jurisdictional prerequisite to suit in federal court; it is "a requirement that, like a statute of limitations, is subject to waiver, estoppel and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). The Second Circuit has held that "[t]he essence of the doctrine `is that a statute of limitations does not run against a plaintiff who is unaware of his cause of action.'" Cerbone v. ILGWU, 768 F.2d 45, 48 (2d Cir.1985) (quoting Long v. Abbott Mortgage Corp., 459 F.Supp. 108, 113 (D.Conn.1978)); see also Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60 (2d Cir.1986). The 300-day period is not tolled or delayed pending the employee's realization that the conduct was discriminatory unless the employee was actively misled by his employer, he was prevented in some extraordinary way from exercising his rights, or he asserted his rights in the wrong forum, in which event tolling of the time period might be permitted as a matter of fairness.... An `extraordinary' circumstance permitting tolling of the time bar on equitable grounds might exist if the employee could show it would have been impossible for a reasonably prudent person to learn that his discharge was discriminatory. Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir. 1985) (emphasis added). "[W]hen an employer's conduct is `extraordinary' enough ... equitable tolling will defer the start of the EEOC filing period from the time of the discriminatory action to the time the employee should have discovered the action's discriminatory nature." Dillman, 784 F.2d at 60. Plaintiff has not offered any basis to support the application of the doctrine of equitable tolling. While plaintiff's brief is replete with speculative allegations of conspiracy, plaintiff has presented no factual matter which in the slightest degree supports a charge that his employer actively misled him or that he was prevented in some "extraordinary" way from exercising his rights. By his own admission, Mauro was advised as early as January 1982 by his grievance officer, Dr. Joseph Muzio, to consider bringing charges of discrimination. (Plaintiff's Brief at 29-30). In May 1982, plaintiff received a copy of a report entitled, "A History of Italian-American Discrimination at City University of New York." (See Exh. M; Plaintiff's Brief at 34). Yet, plaintiff failed to take any action. According to plaintiff: Almost every day, Muzio and the plaintiff [sic] met to discuss the plaintiff's [sic] situation and invariably Muzio raised the issue of discrimination. He urged the plaintiff [sic] to return to the KCC library and review the Chancellor's Reports again. The plaintiff [sic] was adverse to his suggestion. Nevertheless, leaving nothing to chance, in late July or early August of 1982 ... [plaintiff] returned to the KCC library for a second look at the reports. (Plaintiff's Brief at 35.) During this second visit to the library, plaintiff learned that Doris Dingle, a black female instructor in the education department at Lehman College, another college within the City University of New York system, had been retained despite not having completed her doctorate. It is upon this fact that plaintiff claims he was the victim of unlawful discrimination. Plaintiff's rationale for waiting from November 16, 1981 to March 15, 1983 to file his EEOC complaint boils down to the argument that he did not believe he had been the victim of discrimination; that he had to be convinced and was not convinced until after he saw the Calandra report and after he learned that Doris Dingle, employed at a different college in the CUNY system, had been retained. When plaintiff had that information, *325 he was represented by an attorney and the 300-day period had not expired. Plaintiff offered no explanation for why he waited an additional 7 or 8 months to file his EEOC complaint. In sum, plaintiff's argument is nothing more than a post hoc explanation for his failure to assert his claim in a timely fashion. Mauro's employers did not interfere with his ability to exercise his rights nor are there any extraordinary circumstances present to warrant tolling the expiration of the 300-day period until March 15, 1983, 16 months after Mauro was notified he would be terminated. Moreover, Mauro has not shown that it would have been "impossible for a reasonably prudent person to learn that his discharge was discriminatory" long before July or August 1982. Miller, 755 F.2d at 24. In view of the almost constant prodding from Muzio and others as early as January 1982, plaintiff has failed to sustain this burden. "Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.". Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) (per curiam). Accordingly, plaintiff's Title VII claim is dismissed. § 1981 Claim Our Court of Appeals has consistently held that the statute of limitations for § 1981 actions is 3 years. See Ingram v. Madison Square Garden Center, Inc., 709 F.2d 807, 811 (2d Cir.1983); Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d Cir.1976), cert. denied, 434 U.S. 968, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977); Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir.1978). Plaintiff received notice of his termination on November 16, 1981 and his last day of employment was August 30, 1982. Using either of these dates, plaintiff filed his complaint in this action after the 3-year limitations period expired. Plaintiff's § 1981 claim is dismissed. The Clerk of the Court shall enter an order dismissing plaintiff's complaint. So ordered. NOTES [1] Originally, defendants contended that plaintiff's Title VII claim was barred because plaintiff had failed to file his complaint within 90 days of receiving his EEOC right to sue letter. At oral argument on June 3rd, defendants dropped this argument, having been informed that plaintiff had filed his complaint with the Pro Se office within the 90-day period.	{ "pile_set_name": "FreeLaw" }
949 F.2d 1158 Willifordv.Bastrop County* NO. 91-8300 United States Court of Appeals,Fifth Circuit. NOV 18, 1991 1 Appeal From: W.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA APPRILL WALDEN, Plaintiff, v. Civil Action No. 15-1034 (TJK) PATIENT-CENTERED OUTCOMES RESEARCH INSTITUTE, Defendant. MEMORANDUM OPINION Plaintiff Apprill Walden alleges that her former employer, Defendant Patient-Centered Outcomes Research Institute (“PCORI”), violated the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq., by discriminating against her on the basis of her disability and retaliating against her after she requested accommodations for that disability, a protected activity under the statute. ECF No. 1 (“Compl.”); ECF No. 26 (“Opp.”). PCORI denies these allegations and moves for summary judgment. ECF No. 23 (“Mot.”). For the reasons set forth below, PCORI’s motion will be granted. Background A. Factual Background PCORI is an independent, non-profit organization established by the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). Mot., Statement of Undisputed Material Facts (“Def.’s SOF”) ¶ 1. The organization’s mission is to help patients, clinicians, and others make informed health care decisions by, among other things, funding “patient-centered comparative clinical effectiveness research” and disseminating the results of that research to the public. Id. ¶ 2. PCORI’s in-house communications department is responsible for publishing research results, interfacing with the media, and keeping the organization’s staff members apprised of any relevant news. Id. ¶ 4; ECF No. 23-1 (“Stencel Decl.”) ¶ 7. In May 2014, PCORI hired Walden to serve as the communications department’s “Senior Media Relations Specialist,” a position it created to reduce the amount of work it typically outsourced to an external communications firm. Def.’s SOF ¶¶ 7-8. The position’s responsibilities included assisting in the day-to-day management of media relations activities, responding to press inquiries, preparing staff for interviews, and monitoring news coverage. Id. ¶ 14; ECF No. 26-1 (“Walden Dep.”) at 24-25. The position paid an annual salary of $75,000. Def.’s SOF ¶ 9. Walden was expected to “complete assignments with sufficient levels of accuracy on or before deadlines.” Stencel Decl. ¶ 125. As a full-time employee, she was entitled to 240 hours of paid time off (“PTO”) per year, accruing semi-monthly, to use on vacation, sick leave, medical appointments, or for other reasons. Def.’s SOF ¶¶ 16-17. In June 2014, prior to starting her job at PCORI, Walden was involved in a car accident, resulting in injuries to her neck, back, and spine. Opp., Statement of Disputed Facts (“Pl.’s SOF”) ¶ 2. These injuries limited her ability to “work, walk, stand, drive and sit for long periods.” Id. After starting work on June 16, 2014, Walden informed her direct supervisor, Christine Stencel, that she needed to attend regular medical appointments and physical therapy sessions as part of her rehabilitation. Walden Dep. at 43-44; Def.’s SOF ¶¶ 10, 12. During Walden’s first two weeks, Stencel allowed her time off to attend medical appointments and to move into a new apartment, despite the fact that she had not yet accrued any PTO. Def.’s SOF ¶¶ 21-22. 2 From June through November 2014, Walden took time off to go to medical appointments and physical therapy sessions. Id. ¶¶ 29, 31. During this time period, according to her medical records, she attended at least twenty-four such sessions. Id.; ECF No. 28 (“Pl.’s Med. Rec.”) at 29-30, 33-34, 36-39, 41, 43-44. But Walden asserts that Stencel occasionally denied her requests to use PTO to attend to these matters. Pl.’s SOF ¶ 10. Stencel claims that Walden was often given permission to leave for medical reasons during normal working hours without having to use her PTO. Def.’s SOF ¶¶ 29-30. Stencel also claims that she made “every effort” to grant Walden’s requests for PTO, whether her reasons were medical or non-medical. Stencel Decl. ¶ 110. In any event, Walden also asserts that Stencel was “uncomfortable” with her disability, Pl.’s SOF ¶ 8, and sent her a “barrage of emails to distract her” while she attended these appointments, id. ¶ 13. Walden also claims that Stencel told her to “skip” medical appointments “multiple times,” and that this happened on “at least ten” occasions. Walden Dep. at 76-77. In particular, Walden cites one incident where Stencel allegedly stated that she should “probably skip” her physical therapy session because a project was due the next day. Id. at 78-79. Walden states that “most of the time” she was not able to make up the physical therapy appointments she skipped and was sometimes “charged a fee for not showing up” or “a late fee for arriving there late.” Id. at 77-78. For her part, Stencel denies ever asking Walden to skip medical appointments and, in fact, claims to have discouraged her from doing so. Stencel Decl. ¶ 113. According to Walden’s medical records, during her tenure at PCORI, she missed seven physical therapy sessions (in August and September 2014), at least four of which she appears to have cancelled to complete work assignments. Pl.’s Med. Rec. at 36, 38-39, 41, 43; Def.’s SOF ¶ 32. But Stencel asserts 3 that, at the time, she was not aware that Walden missed these sessions for that reason. Stencel Decl. ¶¶ 114-115. Walden asserts that when she began working at PCORI, the amount of work she was assigned was manageable. Pl.’s SOF ¶ 5. But according to PCORI, at that time Walden was assigned discrete tasks that comprised only a subset of her position’s full responsibilities. Def.’s SOF ¶¶ 42-44, 51. Stencel asserts that she intended to—and did—assign Walden additional responsibilities over time as Walden became more familiar with PCORI. Id. ¶ 44. One of Walden’s job responsibilities was tracking news coverage about PCORI, which the parties call “media monitoring.” Id. ¶¶ 14, 48; Walden Dep. at 144. Around “the July timeframe,” Walden received additional media-monitoring tasks that she characterizes as duplicative. Walden Dep. at 141-142. For example, Walden asserts that she was asked to track media mentions of PCORI using two different electronic formats. Id. at 142-43. According to Walden, after she had already completed the assignment in one of the two formats, Stencel said that “it was no longer needed.” Id. at 142. PCORI asserts that Walden did not demonstrate proficiency in the tasks that were assigned to her in her first few months, and that Stencel was dissatisfied with Walden’s performance. Def.’s SOF ¶¶ 45-50. Stencel often rewrote documents Walden drafted, identified mistakes Walden made, and sent Walden detailed feedback about how to improve. Id.; see Stencel Decl., Exs. 2-18, at 17-123. Nonetheless, Walden asserts that, during this time period, Stencel “on occasion” told her that she “was doing a good job.” Walden Dep. at 189; Pl.’s SOF ¶ 11. PCORI admits that, throughout the course of her employment, Walden received “some positive comments about her work,” but asserts that much of the feedback she received was negative. Def.’s SOF ¶ 66. 4 In early October 2014, Walden met with PCORI’s Director of Communications, William Silberg, and Director of Human Resources, Mitch Eisman, to voice several concerns, including that Stencel had unduly increased her workload and required her to skip medical commitments. Pl.’s SOF ¶ 13. Later that month, on October 28, Walden met with Eisman and Stencel to request accommodations for her disability: an arrangement where she could work at home part- time, and an ergonomic chair and standing workstation for her use when she was in the office. Def.’s SOF ¶¶ 33-34; Walden Dep. at 45. Walden’s doctor had recommended that she work at home three days per week for at least eight weeks. ECF No. 26-4; Pl.’s SOF ¶ 16; Walden Dep. at 45. Eisman and Stencel agreed to Walden’s requests, but authorized her to work at home only two, not three, days per week. Def.’s SOF ¶ 36. On November 13, Stencel and Walden discussed the work-at-home arrangement in greater detail. Id. ¶ 35. Walden claims that Stencel used this discussion to “interrogate” her and demand that the arrangement include “periodic check-ins.” Opp. at 19-20. But in any event, the next day, Stencel formally approved the arrangement, and it went into effect three days later. Def.’s SOF ¶¶ 35-36. The arrangement was originally scheduled to end in January 2015, but PCORI allowed it to continue indefinitely, and it remained in effect until Walden’s last day working there in April 2015. Id. ¶ 37; Walden Dep. at 118. Once the work-at-home arrangement began, Walden was generally able to attend her physical therapy sessions, which were usually twice per week. Def.’s SOF ¶¶ 38-39; Pl.’s SOF ¶ 18. However, Walden alleges that after the meeting to discuss her accommodation, she began receiving an increased workload, including assignments that were duplicative. Walden Dep. at 139-141. But, during her deposition, the only example of such duplicative work that she could recall—additional media-monitoring tasks—occurred in the July timeframe. See id. at 141-42. 5 At other times, Walden described an increased workload interfering with her medical appointments before her work-at-home arrangement was implemented. Id. at 75-77. In addition, she claimed to have discussed her increased workload at the very meeting in which she requested her work-at-home arrangement in October. Id. at 105. Again, at least according to PCORI, Walden’s increased workload over time was a result of the fact that she was being eased into her job. Def.’s SOF ¶¶ 42-44, 51. PCORI asserts that, after the work-at-home arrangement began, Walden continued to struggle to complete her work in a timely fashion, and her written work product frequently contained errors. Id. ¶¶ 52-55. Walden claims that this criticism was new—a marked contrast to the earlier, positive feedback she had received from Stencel. See Pl.’s SOF ¶ 19. On or about November 25, 2014, one week after the arrangement began, Walden and Stencel met to discuss Stencel’s concerns about Walden’s performance and Walden’s concerns about her workload. Def.’s SOF ¶ 52. Shortly after the meeting, Stencel suggested that they revisit these issues again, once Walden had spent about six months working at PCORI. Id. ¶ 54. Although this sort of “six-month review” is not mandatory, PCORI states that its managers are encouraged to conduct them where appropriate. Stencel Decl. ¶ 86. On January 16, 2015, Stencel conducted Walden’s six-month review. Pl.’s SOF ¶ 25. During this discussion, Stencel again stated specific reasons why Walden’s performance was lacking, and Walden again expressed concerns about her increased workload. Id.; Def.’s SOF ¶ 58. After the discussion, and at Walden’s request, Stencel sent Walden a list of specific errors that she had made that month. Def.’s SOF ¶ 60. On February 26, 2015, Stencel conducted Walden’s annual performance review. Id. ¶¶ 61-62; Pl.’s SOF ¶ 26. Walden had been working at PCORI for less than a year at that point, 6 but annual performance reviews for all employees were conducted at around the same time, regardless of the employee’s start date. Def.’s SOF ¶ 62. In her evaluation, Stencel rated Walden’s performance at 2.19/5.00 (a rating between “Inconsistent” and “Proficient”), and expressed concerns about Walden’s time management, the quality of her work product, and the fact that she often left tasks incomplete before taking time off. Id. ¶ 63. In contrast, Walden rated her own performance at 3.42/5.00. Id. About a month after receiving her annual evaluation, in mid-March 2015, Walden was placed on a Performance Improvement Plan (“PIP”). Id. ¶ 64. The PIP called for Walden to: (1) assume the full responsibilities of her position as Senior Media Relations Specialist; (2) improve her accuracy and eliminate errors in her work product; and (3) improve her time management. Id. ¶ 65. In a meeting with Eisman, Stencel, and Silberg to discuss the PIP, Walden claims that Silberg “indicated to Walden . . . that they had ‘done enough in providing accommodations for [her] disability.’” Pl.’s SOF ¶ 27. Moreover, Walden claims that Eisman, Stencel, and Silberg all “threatened [her with] termination” if she did not comply with the PIP within four weeks. Id. Soon afterward, on March 25, 2015, Walden resigned. Def.’s SOF ¶ 67. In her resignation letter, Walden accused Stencel of giving her low performance reviews and placing her on a PIP because Stencel “dislike[d] that [she had] a serious medical condition and required accommodations for it.” Id. ¶¶ 67-68. Upon receiving Walden’s email, Stencel immediately forwarded it to Eisman, who tried to speak with Walden about her allegations. Id. ¶ 68; Mot. at 27. Walden, however, declined to speak with him. Def.’s SOF ¶ 69. Walden’s last day of work at PCORI was April 7, 2015. Id. ¶ 70. During her time at PCORI, Walden took a substantial amount of time off, both for medical and non-medical reasons. Id. ¶¶ 26, 28. By her last day at PCORI, she had fully utilized 7 her accrued PTO and, in fact, had overdrawn her PTO by thirty-four hours. Id. ¶ 25. Moreover, aside from Walden’s regularly scheduled work-at-home days, she was absent from the office for some or all of the workday for approximately half of the total days she worked at PCORI. Id. ¶¶ 26, 31, 40, 41. After Walden resigned, PCORI posted advertisements for two open positions in the communications department: “Senior Media Relations Specialist” (Walden’s former position) and “Media Relations Specialist” (a newly created position). Pl.’s SOF ¶ 28; ECF No. 26-11 at 4-7. Some of Walden’s responsibilities as Senior Media Relations Specialist were reassigned to this new position. Compare ECF No. 26-11 at 4-7, with ECF No. 26-2 (“PCORI Offer Ltr.”) at 7-8. PCORI asserts that it created the new position to fully “reduce and eliminate” its reliance on its external communications firm. ECF No. 29 (“Reply”) at 18; see also Stencel Decl. ¶¶ 12-13, 127. B. Procedural Background Walden filed her complaint on July 1, 2015. Compl. PCORI filed a motion to dismiss on August 18, 2015. ECF No. 8. On March 31, 2016, the Court granted the motion in part and denied it in part, dismissing Walden’s hostile-work-environment and constructive-discharge claims but allowing her disparate-treatment and retaliation claims under the DCHRA to move forward. ECF No. 11; Walden v. PCORI, 177 F. Supp. 3d 336 (D.D.C. 2016). PCORI answered Walden’s complaint on April 18, 2016. ECF No. 15. After the close of discovery, on September 16, 2016, PCORI moved for summary judgment. Mot. On October 14, 2016, Walden filed her opposition to PCORI’s motion. Opp. On November 4, 2016, PCORI filed a reply in support of its motion. Reply. 8 Legal Standard Summary judgment must be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is capable of affecting the outcome of the litigation under the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). Once the movant meets its “initial responsibility of informing the district court of the basis for its motion,” the non-movant has the “burden to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Grimes v. District of Columbia, 794 F.3d 83, 94-95 (D.C. Cir. 2015) (internal quotation marks omitted). “In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.” Light v. DOJ, 968 F. Supp. 2d 11, 22 (D.D.C. 2013) (citing Liberty Lobby, 477 U.S. at 255). However, the non-movant cannot “rely in opposing summary judgment on mere allegations.” Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006). She 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 (1986). “[I]f the non-movant’s evidence is ‘merely colorable’ or ‘not significantly probative,’ summary judgment may be granted.” Bradley v. D.C. Pub. Sch., 222 F. Supp. 3d 24, 28 (D.D.C. 2016) (quoting Liberty Lobby, 477 U.S. at 249-50). In addition, where the non-movant bears the burden of proof at trial, she must make an evidentiary showing “sufficient to establish the existence of [each] essential element to [her] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Otherwise, “the plain language of 9 Rule 56(c) mandates the entry of summary judgment.” Id. Indeed, a “complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. Also, “the non-moving party cannot rely upon inadmissible evidence to survive summary judgment; rather, [she] must rely on evidence that would arguably be admissible at trial.” Evans v. Sebelius, 674 F. Supp. 2d 228, 238 (D.D.C. 2009) (citing Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)). Analysis A. Discrimination (Count I) The DCHRA forbids covered employers from discriminating against any individual “wholly or partially for a discriminatory reason based upon [an] actual or perceived . . . disability.” D.C. Code § 2-1402.11(a).1 To demonstrate discrimination in violation of the DCHRA, a plaintiff must prove that (1) she had a disability, (2) she was qualified for her position with or without a reasonable accommodation, and (3) she suffered an adverse employment action because of her disability. Giles, 794 F.3d at 5. 1 The Court looks to case law interpreting federal anti-discrimination statutes when analyzing Walden’s claims under the DCHRA. Such claims are “consistently tested using the analytical framework announced in federal court decisions under federal anti-discrimination statutes.” Mitchell v. Nat’l R.R. Passenger Corp., 407 F. Supp. 2d 213, 247 (D.D.C. 2005). For example, “[w]hen evaluating claims brought under the DCHRA, ‘decisions construing the [Americans with Disabilities Act] are considered persuasive.’” Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1, 5 (D.C. Cir. 2015) (quoting Grant v. May Dep’t Stores Co., 786 A.2d 580, 583-84 (D.C. 2001)). “[C]ourts [will also] look to Title VII and its jurisprudence” in analyzing DCHRA claims. Stevens v. Nat’l R.R. Passenger Corp., 517 F. Supp. 2d 314, 320 (D.D.C. 2007), aff’d, 275 F. App’x 14 (D.C. Cir. 2008); see Elhusseini v. Compass Grp. USA, Inc., 578 F. Supp. 2d 6, 18 (D.D.C. 2008) (collecting cases). 10 In evaluating the third element, where there is no direct evidence of disability discrimination,2 the Court utilizes the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to analyze any circumstantial evidence cited by the plaintiff. See Giles, 794 F.3d at 5; Hollins v. Fed. Nat’l Mortg. Ass’n, 760 A.2d 563, 571 (D.C. 2000). Under this framework, the plaintiff bears the initial burden of showing a prima facie case of discrimination. Giles, 794 F.3d at 6 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). If the plaintiff is successful, the burden then shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the action challenged by the plaintiff. Id. “If the defendant does so, then the question on summary judgment becomes whether, based on the totality of the parties’ evidence, a reasonable jury could determine that the defendant’s proffered explanation was pretext for discrimination.” Conn v. Am. Nat’l Red Cross, 149 F. Supp. 3d 136, 143 (D.D.C. 2016) (citing Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494-95 (D.C. Cir. 2008)). For the reasons stated below, the Court finds that no reasonable jury could find for Walden on her discrimination claim under the DCHRA because she has failed to meet her initial burden of showing a prima facie case of discrimination. In particular, she has failed to demonstrate that she suffered an adverse employment action. Moreover, even if she had met her 2 “Direct evidence of discrimination is evidence that, if believed by the fact finder, proves the particular fact in question without any need for inference. Such evidence includes any statement or written document showing a discriminatory motive on its face.” Manuel v. Potter, 685 F. Supp. 2d 46, 60 n.11 (D.D.C. 2010) (quoting Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006)). “[D]irect evidence is rare.” Sims v. District of Columbia, 33 F. Supp. 3d 1, 9 (D.D.C. 2014) (quoting Portis v. First Nat. Bank, 34 F.3d 325, 328 (5th Cir. 1994)). Walden has failed to provide any direct evidence to show that PCORI discriminated against her on the basis of her disability. The evidence that she characterizes as “direct,” Opp. at 17-18, does not show a discriminatory motive on its face, and is considered alongside her other alleged circumstantial evidence of discrimination, see infra Section III.A.2. 11 burden of demonstrating a prima facie case, no reasonable jury could conclude that PCORI’s proffered reasons for its actions were pretext for unlawful discrimination. 1. Walden’s Prima Facie Case of Disability Discrimination To make out a prima facie case of disability discrimination, a plaintiff must show that she (1) had a disability within the meaning of the statute; (2) was qualified for the position with or without a reasonable accommodation, and (3) suffered an adverse employment action because of her disability. Swanks v. WMATA, 179 F.3d 929, 934 (D.C. Cir. 1999). An adverse employment action “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Blackwell v. SecTek, Inc., 61 F. Supp. 3d 149, 158 (D.D.C. 2014) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)). Such an action must “materially affect . . . the terms, conditions, or privileges of employment . . . such that a reasonable trier of fact could find objectively tangible harm.” Id. (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)). “In most circumstances, an adverse employment action will ‘inflict direct economic harm,’” such as decreasing an employee’s grade or salary. Id. (quoting Burlington Indus., 524 U.S. at 762). “[W]hile adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Otherwise, “[m]inor and even trivial employment actions that ‘an irritable, chip-on-the-shoulder employee did not like [could] form the basis of a discrimination suit.’” Id. (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). “An employment decision does not rise to the level of an actionable adverse action . . . unless there is a ‘tangible change in the duties or working conditions constituting a material employment disadvantage.’” Dorns v. Geithner, 692 F. Supp. 2d 119, 131 (D.D.C. 2010) 12 (quoting Walker v. WMATA, 102 F. Supp. 2d 24, 29 (D.D.C. 2000)). The requirement that an adverse employment action be tangible “guards against ‘judicial micromanagement of business practices’ and ‘frivolous suits over insignificant slights.’” Id. at 132 (quoting Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549, 1556 (D.C. Cir. 1997), and Russell, 257 F.3d at 818). Notwithstanding this threshold, “a series of independent actions, none of which are adverse actions standing alone, may constitute an adverse action collectively.” Id. at 134. However, “there is no ‘bright line rule’ for determining when such impact has occurred.” Id. (quoting Baloch v. Norton, 517 F. Supp. 2d 345, 363 (D.D.C. 2007), aff’d, 550 F.3d 1191 (D.C. Cir. 2008)). Ultimately, when determining whether individual actions in the aggregate should be considered an adverse employment action, “courts must exercise their judgment carefully on a case-by-case basis.” Baloch, 517 F. Supp. 2d at 363. Walden claims, in scattershot fashion, that the following actions taken by PCORI amount to adverse employment actions, either individually or in the aggregate: (1) Stencel “consistently” denying her requests for PTO; (2) Stencel “occasionally” ordering her to “skip” physical therapy sessions; (3) her increased workload; (4) her “preliminary” six-month review and six-month review;3 (5) her negative annual performance review; (6) her “unfair” performance assessments; and (7) her PIP. Opp. at 16. Even considering all the evidence in the light most favorable to Walden, the Court finds that no reasonable factfinder could conclude that she suffered an adverse 3 Walden refers to the discussion that she had with Stencel on or about November 25, 2014, as a “preliminary” six-month review, Walden Dep. at 117, a characterization that PCORI disputes, Reply at 17 n.15. Both parties agree that the discussion between Walden and Stencel on January 16, 2015, was, in fact, a six-month review. Def.’s SOF ¶ 58; Pl.’s SOF ¶ 25. 13 employment action. The Court will address each of these potential adverse employment actions in turn.4 First, Walden’s claim that Stencel “consistently” denied her requests for PTO does not constitute an adverse employment action. Id. Walden testified that her PTO requests were denied on “at least a few occasions.” Walden Dep. at 28. Significantly, however, Walden does not assert that these denials kept her from ultimately using all the PTO that she accrued, even if she was not able to use it precisely as she preferred. In fact, the uncontroverted documentary evidence shows that, by the time she left her job at PCORI, Walden had used thirty-four more PTO hours than she had accrued. Def.’s SOF ¶ 25; ECF No. 23-3 (“Eisman Decl.”) at 10-11. Thus, her allegation that she was denied PTO on some occasions, without more, could not have had a materially adverse impact on the terms of her employment. See Lumpkins-Benford v. Allstate Ins. Co., 987 F. Supp. 2d 807, 824 (N.D. Ill. 2013) (finding no adverse employment action where plaintiff claimed she was “denied the privilege of being able to utilize the days in her Paid Time Off Bank whenever and however she [chose]” because she used all the PTO days available to her), aff’d, 567 F. App’x 452 (7th Cir. 2014). 4 The Court notes that it disregards the hearsay evidence provided by Walden, as it must. The “general rule is that ‘hearsay evidence cannot be considered on a motion for summary judgment.’” Bortell v. Eli Lilly & Co., 406 F. Supp. 2d 1, 11 (D.D.C. 2005) (quoting Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994)). In particular, Walden repeatedly refers to an Equal Employment Opportunity Commission (“EEOC”) intake file, which was created after she left her job at PCORI, containing the EEOC investigator’s notes, Walden’s intake questionnaire, and attachments to that questionnaire. ECF No. 26-3. As PCORI points out, this intake file is hearsay that the Court cannot consider. See EEOC v. Howard Univ., 70 F. Supp. 3d 140, 148-49 (D.D.C. 2014) (holding that an EEOC investigator’s “unsworn” notes were hearsay); Fox v. Leland Volunteer Fire/Rescue Dep’t, Inc., No. 12-cv-354 (LWF), 2015 WL 1058954, at 7-8 (E.D.N.C. Mar. 11, 2015) (concluding that plaintiff’s EEOC intake questionnaire was hearsay), aff’d in part, vacated in part on other grounds, 648 F. App’x 290 (4th Cir. 2016); Cruz v. Aramark Servs., Inc., 213 F. App’x 329, 332-33 (5th Cir. 2007) (holding “unsworn” statements and letters in plaintiff’s EEOC file to be hearsay). 14 Second, Walden’s assertion that Stencel “occasionally” ordered her to “skip” physical therapy sessions does not rise to the level of an adverse employment action. Opp. at 16. Walden testified that she was told by Stencel to skip physical therapy sessions “multiple times,” and later clarified that this occurred on “at least ten” occasions. Walden Dep. at 76-77. But she describes only one of those occasions, on which Stencel told her that she should “probably skip” a physical therapy session to finish a project due the next day. Id. at 75-76, 79. It is not clear from her testimony how many times she actually heeded Stencel’s requests to skip therapy. Walden’s uncontroverted medical records show that she missed seven physical therapy sessions (all in August and September 2014) during her almost ten months working at PCORI, although they do not, of course, show what portion of the seven were missed at Stencel’s urging. Pl.’s Med. Rec. at 36, 38-39, 41, 43; Def.’s SOF ¶ 32. The documentary evidence also shows that, from June until mid-November 2014, prior to the start of her work-at-home arrangement, Walden attended at least twenty-four physical therapy sessions. Def.’s SOF ¶¶ 29, 31; Pl.’s Med. Rec. at 29, 30, 33-34, 36-39, 41, 43-44. And Walden concedes that, after her work-at-home arrangement began in mid-November 2014, she was generally able to attend her physical therapy sessions through the end of her employment in April 2015. Def.’s SOF ¶¶ 38-39; Pl.’s SOF ¶ 18. Even viewed in the light most favorable to Walden, this evidence does not demonstrate an adverse employment action. Of course, as a threshold matter, mere requests by Stencel to Walden to skip physical therapy—without Walden actually having done so—do not constitute adverse employment actions. Such requests could hardly “materially affect . . . the terms, conditions, or privileges of employment . . . such that a reasonable trier of fact could find objectively tangible harm.” Douglas, 559 F.3d at 552. 15 Walden’s cancellation of seven (or even ten) appointments during her employment at PCORI, even if at Stencel’s direction, is simply not significant enough for a reasonable factfinder to consider it a change to the terms and conditions of her employment; it is therefore not material. See Ramsey v. Moniz, 75 F. Supp. 3d 29, 54 (D.D.C. 2014) (finding a denial of medical leave on three occasions “was de minimis and, consequently, not material”); see also Dorns, 692 F. Supp. 2d at 133 (“[E]ven assuming that the denial of . . . sick leave is actionable, the amount in question here is too de minimis to be considered ‘material’ or ‘significant.’”). That is especially true here, where Walden has not challenged PCORI’s assertion that part of her job required completing assignments “on or before deadlines.” Stencel Decl. ¶ 125. Walden herself testified that Stencel asked her to miss physical therapy sessions occasionally in order to meet those deadlines. Walden Dep. at 75-77, 79. That is hardly surprising, and it is consistent with the terms and conditions of Walden’s employment, rather than a change to them. In addition, Walden has also not demonstrated that these cancellations materially affected the terms of her employment by causing her harm. For example, she has not shown, especially in light of the work-at-home arrangement she was subsequently afforded, that missing these appointments caused any setbacks in the rehabilitation of her injuries. See Gurley v. LaHood, 504 F. App’x 498, 501 (7th Cir. 2013) (finding a denial of medical leave was not a “significant change in benefits” because plaintiff admitted that his hand was “adequately” treated in the leave he was granted). She does allege that she was sometimes “charged a fee for not showing up” to a physical therapy session or “a late fee for arriving there late.” Walden Dep. at 77-78. However, she offers no specifics as to how much the fees were, or how frequently she had to pay them. Id. at 77-78. And in any event, such indirect economic harm, unlike “a reduction in salary or 16 benefits,” is not typically a change to terms of employment. Blackwell, 61 F. Supp. 3d at 160 (internal quotation marks omitted). Third, Walden’s claim that her workload was increased does not constitute an adverse employment action. Walden asserts that she was given more media-monitoring tasks, and that those tasks were duplicative. Walden Dep. at 144-45. However, according to PCORI’s offer of employment dated May 19, 2014, Walden’s job responsibilities included “[m]onitor[ing] coverage of PCORI by traditional and new media outlets in both trade and consumer media arenas.” PCORI Offer Ltr. at 7. So even by her own account, Walden was merely asked to do more of the same tasks she was already assigned. Ordinarily, if “not accompanied by some other adverse change in the terms, conditions or privileges of employment,” an “increased workload does not constitute an actionable injury.” Mack v. Strauss, 134 F. Supp. 2d 103, 113 (D.D.C. 2001), aff’d, No. 01-5122, 2001 WL 1286263 (D.C. Cir. Sept. 28, 2001); see Rattigan v. Gonzales, 503 F. Supp. 2d 56, 73 (D.D.C. 2007) (“[I]ncreased workload[]” is a “familiar complaint[] in virtually every workplace and every industry,” but it does not typically “give rise to a discrimination claim”). Indeed, “courts have recognized that increases in workload or changes in responsibility are not [typically] adverse employment actions, but rather constitute only the ordinary tribulations of the workplace, which employees should expect.” Lester v. Natsios, 290 F. Supp. 2d 11, 29-30 (D.D.C. 2003) (collecting cases) (internal quotation marks omitted). Here, Walden’s vague allegation that some of the media-monitoring work she was asked to do was duplicative does not come close to demonstrating that her increased workload was accompanied by or led to an adverse change, financial or otherwise, in her terms of employment. 17 Fourth, PCORI’s six-month review and preliminary six-month review of Walden’s performance are not adverse employment actions. Opp. at 16. Walden claims that these reviews were a departure from the terms of her employment offer letter from PCORI, which she alleges “states that she was subject to an annual review only.” Id. at 11. But she mischaracterizes the letter, which states merely that “PCORI will conduct formal performance reviews annually,” leaving open the possibility of additional reviews. PCORI Offer Ltr. at 5. Thus, these additional reviews were not a material change to the terms of Walden’s employment. See Ransom v. Ctr. For Nonprofit Advancement, 514 F. Supp. 2d 18, 25-26 (D.D.C. 2007) (employer’s nine meetings with plaintiff to review her unsatisfactory job performance did not constitute an adverse employment action); cf. Hunter v. Clinton, 653 F. Supp. 2d 115, 122 (D.D.C. 2009) (employer’s “increased scrutiny” of plaintiff’s work was not an adverse employment action). To the extent that Walden argues her additional reviews were adverse because they were critical of her performance, it is well established (as discussed in greater detail below) that negative performance evaluations are not adverse employment actions. Donovan, 559 F.3d at 553. Fifth, a negative performance evaluation, such as the one that Walden received, Opp. at 16, does not ordinarily constitute an adverse employment action without some link to a tangible economic harm. “There is a ‘thick body of precedent [that] . . . refutes the notion that formal criticism or poor performance evaluations are necessarily adverse actions.’” Dorns, 692 F. Supp. 2d at 133 (quoting Brown v. Brody, 199 F.3d 446, 458 (D.C. Cir. 1999)). The “effect of a poor evaluation is ordinarily too speculative to be actionable.” Donovan, 559 F.3d at 553. A negative evaluation is not typically considered an adverse employment action “unless [it is] tied to the employee’s bonus, or result[s] in some other material employment action.” Turner v. Shinseki, 824 F. Supp. 2d 99, 116 (D.D.C. 2011); see also Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. 18 Cir. 2002) (noting that “formal criticisms or reprimands without additional disciplinary action” are not adverse employment actions), but see Russell, 257 F.3d at 819 (finding an adverse employment action where a lower performance rating led to a reduced bonus). Because Walden does not claim that her annual performance evaluation resulted in a reduction of her compensation, or otherwise show how the evaluation effected a significant change in her employment status, her negative annual performance evaluation does not qualify as an adverse employment action. Sixth, the “unfair” informal performance assessments that Walden received did not constitute adverse employment actions. Opp. at 16. Walden asserts that Stencel and Silberg, after granting her request for a work-at-home arrangement in October 2014, became “severely critical” of her work and performance. Pl.’s SOF ¶ 22. She makes no attempt to explain why she considers this criticism “unfair.” Opp. at 16. Regardless, like negative performance evaluations, informal criticism is not ordinarily considered an adverse action unless it affects the employee’s grade or salary. See Burton v. Batista, 339 F. Supp. 2d 97, 110 (D.D.C. 2004). “Certainly employers are permitted to criticize an employee’s work without giving rise to a . . . cause of action.” Id. Given that Walden does not claim that these “unfair” performance assessments affected her grade or salary, and does not otherwise show a material change in her employment status, they do not amount to adverse employment actions. Finally, Walden’s PIP does not rise to the level of an adverse employment action. PIPs are not typically adverse employment actions without some additional effect on an employee’s grade or salary. See Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (finding that a PIP was not an adverse employment action because plaintiff did not present evidence suggesting she suffered any significant change in employment status). Beyond the mere fact that she was placed 19 on a PIP, Walden claims that Silberg, Stencel, and Eisman all threatened to terminate her if she did not comply with it within four weeks. Pl.’s SOF ¶ 27. And, in fact, Walden’s PIP explicitly stated that improvement was expected within four weeks, and that “termination [was] a possible consequence.” ECF No. 26-9.5 But this argument gets Walden no further. It is not uncommon for a PIP to include a warning that non-compliance could lead to termination—but such warnings alone do not give rise to an adverse employment action. See, e.g., Kelly v. Mills, 677 F. Supp. 2d 206, 217, 222 (D.D.C. 2010) (no adverse employment action where PIP was accompanied by a letter stating that improvement was necessary in order to avoid “reassignment, reduction in grade or removal from the Federal Service”), aff’d, No. 10-5049, 2010 WL 5110238 (D.C. Cir. Dec. 14, 2010). Rather, “placement on the PIP must have resulted in an adverse action.” Chowdhury v. Bair, 604 F. Supp. 2d 90, 96 (D.D.C. 2009). In other words, “an unrealized risk of a future adverse action, even if formalized, is too ephemeral to constitute an adverse employment action.” Russell, 257 F.3d at 819-20. PCORI’s actions did not result in an adverse employment action here, since Walden eventually resigned on her own accord. Def.’s SOF ¶ 67. In summary, each action challenged by Walden, for reasons discussed above, falls short of an adverse employment action. The Court also concludes that these actions, even if taken together, still do not amount to an adverse employment action. See, e.g., Dorns, 692 F. Supp. 2d at 132-34 (finding that refusal of a request for transfer, a poor performance review, a refusal to grant permission to attend training sessions, and a denial of an advancement for sick leave did not, in the aggregate, constitute an adverse employment action); Brodetski v. Duffey, 199 F.R.D. 5 Insinuating that her termination was likely, Walden asserts that a colleague from one of her prior jobs told her that “not even the most seasoned media relations professional could overcome [this] PIP.” Opp. at 12 (citing Walden Dep. at 150-51). However, the Court cannot credit this statement because it is hearsay. Greer, 505 F.3d at 1315. 20 14, 21 (D.D.C. 2001). As a result, the Court need not determine whether Walden has met the other elements required for a prima facie case of discrimination. 2. Whether PCORI’s Stated Reasons for its Actions Were Pretext for Disability Discrimination Even if Walden had shown that she was subjected to an adverse employment action, she would also have to rebut any legitimate, non-discriminatory reason that PCORI claimed justified its actions. To do so, she must “produce[] sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). PCORI argues that Walden performed poorly throughout the course of her employment. Mot. at 16-17. The uncontroverted record evidence shows that Stencel routinely rewrote documents Walden drafted, pointed out mistakes Walden made, and sent Walden detailed feedback about how she could improve. Def.’s SOF ¶¶ 45-50; see Stencel Decl., Exs. 2-25 at 17-149. PCORI offers at least sixteen examples, from June (when Walden began work there) through November 2014, where Walden’s work product required substantial revisions. Reply at 20 n.17; see Stencel Decl., Exs. 2-18 at 17-123. PCORI also cites numerous occasions when Stencel gave Walden feedback on her work product or guidance with respect to her job duties. See, e.g., Stencel Decl. ¶¶ 31, 42-43, 52, 59, 74. Moreover, according to PCORI, Walden struggled with time management, took too long to complete routine tasks, and left projects unfinished before taking PTO or attending her medical appointments. Mot. at 36; Stencel Decl. ¶¶ 35-36. Stencel met with Walden on several occasions to discuss how Walden might better manage her time and more effectively perform her duties. See, e.g., Stencel Decl. ¶¶ 74-76, 93; Eisman Decl. ¶¶ 27, 30. Yet, according to PCORI, Walden’s job performance still did not 21 improve, resulting in Walden receiving low marks on her annual performance review and, not long afterward, placement on a PIP. Mot. at 36. PCORI’s dissatisfaction with Walden’s work is a legitimate and nondiscriminatory reason for many of the actions it took, including conducting Walden’s additional performance reviews, giving her a negative annual performance review, and placing her on a PIP. See Robertson v. Dodaro, 767 F. Supp. 2d 185, 191-92 (D.D.C. 2011); see, e.g., Dews-Miller v. Clinton, 707 F. Supp. 2d 28, 52 (D.D.C. 2010) (holding that supervisors’ dissatisfaction with employee’s work was a legitimate, nondiscriminatory reason for rating employee as “minimally successful” on her performance evaluations); Hussain v. Gutierrez, 593 F. Supp. 2d 1, 9 (D.D.C. 2008) (failure “to perform routine duties in a timely fashion” constitutes “a legitimate, non- discriminatory reason for terminating” an employee). PCORI has also offered other legitimate reasons for the other actions it took. For example, PCORI claims that Walden’s workload increased only because she was asked to do all the tasks in her job description, not just some of them (as she was allowed to do initially). Stencel Decl. ¶¶ 25-26. Because PCORI has provided legitimate, nondiscriminatory reasons for its actions, to survive summary judgment, Walden must “point to facts that would demonstrate that the employer’s explanation was not worthy of belief, or there was another, discriminatory motive at work.” Giles v. Transit Employees Credit Union, 32 F. Supp. 3d 66, 73 (D.D.C. 2014), aff’d, 794 F.3d 1 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 1171 (2016); see also Nichols v. Billington, 402 F. Supp. 2d 48, 65 (D.D.C. 2005). Walden has not provided sufficient evidence that would allow a reasonable factfinder to conclude that the reasons PCORI offered for its actions were pretext for discrimination. She points to the following: (1) two statements by PCORI that it had “done enough” in providing her 22 with accommodations for her disability; (2) Stencel’s “behavior” during two discussions about her disability; (3) Stencel’s denials of PTO requests and orders to “skip PTO;” (4) Stencel’s refusal to agree to Walden’s request to work at home three days per week; (5) her “substantially increased workload;” (6) Silberg’s “behavior” after meeting with Eisman and Walden; (7) her preliminary six-month review and six-month review; and (8) her “unfair performance assessments” after her request for accommodations. Opp. at 17-24. The Court will consider each of Walden’s arguments, and the record evidence supporting them, in the light most favorable to her. First, Walden asserts that in a meeting to discuss her PIP, Silberg told her that PCORI had “done enough in providing accommodations for [her] disability,” Pl.’s SOF ¶ 27, and her PIP stated that, “PCORI [had] made every reasonable effort to accommodate [her] requests for an alternative work schedule as well as frequent PTO requests,” ECF No. 26-9 at 4; see also Opp. at 18. However, these statements—made in the context of evaluating Walden’s job performance—merely reflected PCORI’s belief that it had provided Walden with the accommodations she had requested in accordance with the law. See Rashad v. WMATA, 945 F. Supp. 2d 152, 163 (D.D.C. 2013) (finding that employer’s statement that “[d]espite the burden . . . [it] has granted [plaintiff’s] accommodation request” did not support claims of discrimination and retaliation). These statements would not permit a reasonable factfinder to conclude that Walden’s PIP, or any of PCORI’s actions, was the result of discriminatory animus. Second, Walden claims that Stencel’s “behavior” while discussing her disability is evidence of pretext. Opp. at 19. In particular, she asserts that Stencel appeared “uncomfortable” and “squirmish” on two occasions—when she first disclosed her disability and when she requested a work-at-home arrangement. Id.; Walden Dep. at 97-100. However, Walden’s 23 “subjective belief” that Stencel’s “body language communicated discriminatory intent . . . is not sufficient to overcome summary judgment.” Yue Yu v. McGrath, 597 F. App’x 62, 67 (3d Cir. 2014); see also Johnson v. Perez, 66 F. Supp. 3d 30, 42 (D.D.C. 2014) (finding no evidence of pretext where employer was purportedly “tense and uncomfortable” around plaintiff, who was black, but not around her white co-workers), aff’d, No. 15-5034, 2015 WL 5210265 (D.C. Cir. July 1, 2015). Third, Walden claims that Stencel “at times denied and ordered Walden to ‘skip’ PTO.” Opp. at 19. But there is nothing about this allegation that a reasonable factfinder could find demonstrates discriminatory pretext. In terms of her PTO use, as already discussed, the evidence shows that Walden was permitted to use thirty-four more PTO hours than she actually accrued. Def.’s SOF ¶ 25; Eisman Decl. at 10-11. Moreover, Stencel’s denial of Walden’s PTO request in December 2014 (the only denial of her PTO that Walden identifies with specificity) is wholly unconnected to Walden’s disability; that request was apparently for a vacation, not for a physical therapy appointment. Walden Dep. at 160-61. To the extent that Walden suggests that Stencel’s telling her to skip her medical appointments (whether or not she had to use PTO to attend them) was a pretext for disability discrimination, Opp. at 19, she stands on even weaker ground. Walden herself testified that Stencel’s actions in this regard were not motivated by disability discrimination. She testified that Stencel generally told her to “skip” physical therapy for work-related reasons, such as the completion of “priority assignments.” Walden Dep. at 75-77. For example, on the one occasion she described, Stencel told her that she should “probably skip” her physical therapy session “because this [project] is something that’s due tomorrow.” Id. at 78-79. Walden has not called into question PCORI’s evidence showing that her job required her to meet these deadlines. 24 Stencel Decl. ¶ 125. Accordingly, on this record, a reasonable factfinder could not conclude that Stencel’s alleged requests for Walden to miss these physical therapy appointments give rise to an inference that PCORI was motivated by discriminatory animus. Fourth, Walden points to the way in which PCORI accommodated her disability as evidence of pretext. Opp. at 19-20. As mentioned above, PCORI granted Walden’s request for an ergonomic chair and a standing workstation. Def.’s SOF ¶¶ 33-34; Walden Dep. at 45. And for purposes of the work-at-home arrangement, Stencel permitted Walden to work at home two days per week, rather than the three days per week that her doctor recommended. Def.’s SOF ¶ 36. This accommodation is plainly not evidence from which a reasonable factfinder could conclude that PCORI’s actions were pretext for discrimination. See, e.g., Swann v. Office of Architect of Capitol, 73 F. Supp. 3d 20, 30-31 (D.D.C. 2014) (finding that employer’s decision to place a lock on a unisex locker room, in place of providing the separate female locker room requested by plaintiff, could not be considered pretext evidence for discrimination or retaliation), aff’d, No. 15-5001, 2015 WL 5210251 (D.C. Cir. Aug. 18, 2015). In fact, as already described, PCORI’s accommodation was in some ways more generous than what was recommended by Walden’s doctor. The doctor recommended that the arrangement last eight weeks, yet PCORI allowed it to continue for approximately five months, up until Walden’s last day working there. Def.’s SOF ¶¶ 36-37. Walden also asserts that Stencel endorsed this work-at-home arrangement only after “interrogating” Walden and insisting that the arrangement be accompanied by “periodic check- ins.” Opp. at 20. She suggests that this is a “departure from established procedures,” which can be probative of a pretext for discrimination, Allen v. Johnson, 795 F.3d 34, 45 (D.C. Cir. 2015), but she utterly fails to produce evidence of what those procedures were. For its part, PCORI 25 asserts that holding such discussions preceding the establishment of a work-at-home arrangement, and having “periodic check-ins,” are standard protocol. Reply at 16. PCORI’s claim finds confirmation in the agreement memorializing Walden’s arrangement, which specifically states that “[t]he most successful flexible work arrangements occur when the manager and employee discuss and work through the details of the proposed arrangement in advance.” Stencel Decl., Ex. 42 at 241. It also states that the “employee’s role” is to “[r]egularly evaluate the arrangement with [his or her] supervisor and implement agreed upon changes.” Id. at 240. In the end, of course, Stencel approved the work-at-home arrangement. Def.’s SOF ¶¶ 35-36. There is simply no basis here from which a reasonable factfinder could conclude that PCORI’s actions were pretexts for discrimination. Fifth, Walden claims that, after she had requested a work-at-home arrangement, she was given a “substantially increased” workload that “one person could not handle.” Opp. at 20. She asserts that this increased workload included additional media-monitoring tasks, and that such tasks were duplicative. Walden Dep. at 143. To demonstrate that this added workload was overly burdensome, Walden points to the fact that, shortly after her departure, PCORI created a second position to assume several of the responsibilities originally assigned to Walden’s position. Opp. at 22-24. For its part, PCORI responds that the new position was created to account for the additional work PCORI would take on to fully “reduce and eliminate” its reliance on its external communications firm. Reply at 18; Stencel Decl. ¶¶ 12-13, 127. With respect to a pretext analysis, Walden fails to show how her allegations of increased workload—which she describes only in the most opaque way—suggest that PCORI was motivated by discriminatory animus. The only example of increased workload that Walden described involved performing media-monitoring tasks that were included in the description of 26 her job when she applied for it. Walden Dep. at 141-42, 144. Simply put, she provides no evidence that would cast doubt on PCORI’s explanations for (1) her increased workload (that she was given additional media-monitoring assignments over time because she had been performing only a fraction of her assigned duties), or (2) the creation of a new position after she resigned (to fully eliminate its reliance on an external communications firm). To the extent that Walden argues that the timing of this increased workload is significant, “[t]iming standing alone is not sufficient absent other evidence of pretext.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015) (quoting Boyd v. State Farm Ins. Cos., 158 F.3d 326, 330 (5th Cir. 1998)). Moreover, Walden disclosed her disability to PCORI immediately after the start of her employment in June. Walden Dep. at 43-44. So there is little, if any, temporal link between PCORI’s knowledge of her disability and Walden’s allegation of increased workload after she requested a work-at-home arrangement in late October. In fact, the evidence does not even support Walden’s claim that she received an increased workload only after requesting a work-at-home arrangement. Opp. at 20-21. She did make this claim at one point during her deposition. Walden Dep. at 139-141. But the only specific example of her increased workload she recalled—the duplicative media-monitoring tasks— occurred in the “July timeframe.” Id. at 142. At other times, Walden described an increased workload interfering with her medical appointments before her work-at-home arrangement was implemented. Id. at 75-77. In fact, she claims to have discussed her increased workload at the very October meeting she now claims precipitated her increased workload. Id. at 105. Taken as a whole, her testimony is broadly consistent with PCORI’s assertions that her workload was increased gradually over time, to permit her to learn about PCORI. There is simply no basis to 27 conclude that the timing of her increased workload in relation to her request for a work-at-home arrangement suggests discrimination. Sixth, Walden claims that Silberg’s “behavior” after she met with him and Eisman in early October 2014 is evidence of a discriminatory motive. Opp. at 21. Walden asserts that she voiced concerns about Stencel at the meeting; in particular, she relayed that Stencel had increased her workload and required her to skip medical appointments. Pl.’s SOF ¶ 13. But there is nothing about Silberg’s subsequent conduct from which a reasonable juror could infer discriminatory intent. Walden points to two instances that took place after the meeting—one where Silberg revised her draft “media update,” Stencel Decl., Ex. 15 at 108-11, and another where Silberg stated that Walden had circulated the wrong draft “e-alert,” Stencel Decl., Ex. 18 at 119-23. See Opp. at 10. But Silberg had revised Walden’s written work prior to the meeting as well. Stencel Decl., Ex. 8 at 73-75. That is hardly surprising: Silberg was the head of PCORI’s communications department. Therefore, Silberg’s supposedly improper “behavior” consisted merely of doing his job. Seventh, Walden asserts that she was subjected to a preliminary six-month review and six-month review that no other employees were required to undergo. Opp. at 21-22. A “departure from established procedures” can be probative of a pretext for discrimination, Allen, 795 F.3d at 45, but on the record here no reasonable factfinder could conclude that such a departure occurred. Walden claims that her employment offer letter from PCORI states that she was only subject to an annual review. Opp. at 21. But, as already discussed, the letter merely states that annual reviews will be conducted, leaving open the possibility of additional performance reviews. PCORI Offer Ltr. at 5. Walden’s only other evidence showing a departure from established procedures is her own statement that certain unnamed colleagues had 28 “never heard of a 6-month review, only an annual review.” ECF No. 26-7 at 5. However, this evidence cannot be credited at summary judgment because it is hearsay. Greer, 505 F.3d at 1315; see Hernandez v. Pritzker, 741 F.3d 129, 134 (D.C. Cir. 2013) (finding plaintiff’s “own statement claiming two colleagues told her about the openings” to be “‘pure hearsay” that “counts for nothing in an opposition to summary judgment” (internal quotation marks omitted)). Of course, Walden could have deposed the colleagues who had “never heard of a 6-month review,” but she declined to do so. See Carter v. George Wash. Univ., 387 F.3d 872, 880 (D.C. Cir. 2004) (at summary judgment, no need to consider plaintiff’s inadmissible hearsay evidence regarding a committee’s interview of candidates other than plaintiff where she did not depose any of the committee members or candidates). Finally, Walden claims that Stencel became dissatisfied with her work only after Walden met with Eisman and Silberg in early October 2014. Opp. at 24. Walden states that, after this meeting, Stencel “became severely critical” of her work and gave her “unfair” evaluations. Id. at 21-22. According to Walden, before that time, PCORI was satisfied with her job performance. Walden Dep. at 193. She asserts, and PCORI admits, that Stencel occasionally praised Walden’s work during her tenure at the organization. Opp. at 24; Def.’s SOF ¶ 66.6 In response, PCORI provides “uncontradicted evidence in the record that [it] harbored concerns about the quality of [Walden’s] performance” both before and after the October 6 Walden also claims that “the in-house editorial team would get back to her with minimal to no edits.” Pl.’s SOF ¶ 21; Walden Dep. at 158-59. This evidence is not probative of pretext because Walden reported only to Stencel and (on occasion) Silberg, not to anyone on the in- house editorial team. “[I]t is the supervisor’s perception of the employee that is relevant, not the perceptions of his coworkers.” Mastrangelo v. Nat’l R.R. Passenger Corp., No. 01-cv-0582 (TFH), 2006 WL 416181, at 7 (D.D.C. Feb. 22, 2006); see also Gonda v. Donahoe, 79 F. Supp. 3d 284, 299 (D.D.C. 2015) (“[C]oworkers’ beliefs about a plaintiff’s work performance are anecdotal opinions without weight.”). 29 meeting. Glass v. Lahood, 786 F. Supp. 2d 189, 215 (D.D.C. 2011), aff’d, No. 11-5144, 2011 WL 6759550 (D.C. Cir. Dec. 8, 2011). PCORI points to numerous examples, from June through early October 2014, where Stencel rewrote Walden’s work or identified mistakes that Walden had made. Def.’s SOF ¶¶ 45-50; see Stencel Decl., Exs. 2-13, at 17-105. Both parties agree that Stencel was critical of Walden’s work after the October meeting, and that Walden received low marks on her annual performance review and was subsequently given a PIP. See Mot. at 36; Opp. at 21. Even viewing this record in the light most favorable to Walden, the evidence simply does not support her claim that PCORI became dissatisfied with her work only after Walden met with Eisman and Silberg in early October 2014. The record is replete with documentary evidence showing Walden’s performance deficiencies before October, none of which she specifically contests. In the end, none of the evidence Walden cites suggests that PCORI’s stated reasons for its actions—in particular, its dissatisfaction with her work—were pretext for disability discrimination. She has not, for example, contravened the specific evidence documenting PCORI’s concerns. See Waterhouse v. District of Columbia, 298 F.3d 989, 995 (D.C. Cir. 2002) (plaintiff failed to show pretext where she “did not contravene—and in fact admitted—many of the deficiencies the defendants cited concerning her performance”). Although Stencel may have occasionally praised Walden’s work, “[i]nstances of positive feedback do not suggest pretext” where there is “substantial evidence that her superiors were dissatisfied with her work performance and her failure to improve.” Gonda v. Donahoe, 79 F. Supp. 3d 284, 299 (D.D.C. 2015). And there is nothing in the record to suggest that PCORI did not honestly believe in its negative assessment of Walden’s work performance. See Brady, 520 F.3d at 496. As is the case here, “[i]f the employer’s stated belief about the underlying facts is reasonable in light of the 30 evidence . . . there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the underlying facts.” Id. at 495. Therefore, even if Walden had shown that she was subjected to an adverse employment action, she has provided no basis for a reasonable factfinder to conclude that the reasons PCORI gave for its actions were pretext for disability discrimination. As a result, Walden’s discrimination claim under the DCHRA cannot survive summary judgment. B. Retaliation (Count II) Under the DCHRA, covered employers may not “coerce, threaten, retaliate against, or interfere with any person in the exercise or enjoyment of, or on account of having exercised or enjoyed . . . any right granted or protected under this chapter.” D.C. Code § 2-1402.61. A prima facie case of retaliation requires a plaintiff to show, “first, that she engaged in protected activity; second, that she was subjected to adverse action by the employer; and third, that there existed a causal link between the adverse action and the protected activity.” Broderick v. Donaldson, 437 F.3d 1226, 1231-32 (D.C. Cir. 2006) (quoting Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)).7 If a plaintiff meets that burden, the burden shifts to the defendant to articulate a legitimate and nondiscriminatory reason for the adverse employment action. See Siddique v. Macy’s, 923 F. Supp. 2d 97, 107 (D.D.C. 2013) (citing Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010)). If such a reason is articulated, the Court considers “whether a reasonable jury could infer retaliation from all the evidence, which includes not only the prima facie case but also the evidence the plaintiff offers to attack the employer’s proffered explanation for its action and other evidence of retaliation.” Id. (quoting Gaujacq, 601 F.3d at 577). 7 “A DCHRA retaliation claim effectively mirrors . . . a claim ‘under the federal employment discrimination laws.’” Lewis v. Gov’t of D.C., 161 F. Supp. 3d 15, 34 (D.D.C. 2015) (quoting McCain v. CCA of Tenn., Inc., 254 F. Supp. 2d 115, 124 (D.D.C. 2003)). 31 Even assuming that Walden has made out a prima facie case here, the Court finds that no reasonable jury could infer that she was retaliated against from the evidence in the record. With respect to Walden’s retaliation claim, PCORI offers the same legitimate, nondiscriminatory reasons for its actions as it did in connection with her discrimination claim: mainly, that Walden performed poorly throughout the course of her employment. And in support of her retaliation claim, Walden relies almost exclusively on the same evidence that she proffered to show pretext in connection with her discrimination claim. Opp. at 29-30. Here too, and for the same reasons already discussed in the discrimination context, the Court finds that Walden fails to create a material dispute as to whether PCORI retaliated against her. See supra Section III.A.2. Walden offers one new argument, but it adds little to her case. She asserts that her “wealth of experience at major companies and government organizations [was] recognized by PCORI before she started at the organization.” Opp. at 29. However, a “plaintiff’s subjective assessment of her own qualifications . . . cannot serve to establish pretext under the law.” Young v. Perry, 457 F. Supp. 2d 13, 19 (D.D.C. 2006). In light of all of the evidence, the Court also concludes that no reasonable factfinder could find for Walden on her DCHRA retaliation claim. Therefore, PCORI is entitled to summary judgment on it, as well. Conclusion For the foregoing reasons, PCORI’s motion for summary judgment will be GRANTED, and the Court will enter judgment in its favor, in a separate order. /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: March 30, 2018 32	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1239 ___________________________ Robert Crawford lllllllllllllllllllll Plaintiff - Appellant v. Carolyn W. Colvin, Acting Commissioner of the Social Security Administration lllllllllllllllllllll Defendant - Appellee ____________ Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau ____________ Submitted: September 23, 2015 Filed: December 7, 2015 ____________ Before LOKEN, BEAM, and SHEPHERD, Circuit Judges. ____________ BEAM, Circuit Judge Robert Crawford appeals the district court's1 order affirming the decision of the Commissioner of the Social Security Administration denying Crawford's application for supplemental security income. Crawford applied for benefits on August 16, 2007, 1 The Honorable Terry I. Adelman, United States District Judge for the Eastern District of Missouri. claiming his disability began on January 1, 2004. The Commissioner denied the application, and Crawford appealed to an administrative law judge (ALJ). The ALJ found Crawford was not disabled under the Social Security Act. The Appeals Council denied review, and Crawford appealed to the district court. The district court then reversed and remanded for lack of substantial evidence on the record concerning Crawford's ability to perform his past relevant work. Upon remand, the ALJ found that Crawford was not disabled because he could perform sedentary work. The Appeals Council again denied review, making the ALJ's decision the final decision of the Commissioner. On appeal to the district court, the court affirmed the ALJ's decision. Crawford now appeals, and we affirm because the decision is supported by substantial evidence on the record. I. BACKGROUND Crawford was born on September 16, 1969. In his application, Crawford alleges that the following conditions prevent him from working: swelling in his legs, shortness of breath, low heart rate, sleep apnea, Chronic Obstructive Pulmonary Disease (COPD), congestive heart failure, depression, and morbid obesity. He has a high school education and some semi-skilled past relevant work experience. His work history is sporadic, and his highest income for a single year is $6,869. He smokes between one-and-a-half and two packs of cigarettes a day, drinks two six- packs of beer on a daily basis when he has the money, and has had issues with cocaine addiction. He requires the use of home services but is able to prepare simple meals, sweep, and mop. Occasionally he walks to get around, and his hobbies include reading and completing crossword puzzles. Crawford also states that his conditions affect his ability to lift, squat, bend, stand, and walk, such that he can only lift between ten and fifteen pounds and can only walk fifty feet before needing to rest and elevate his legs. He is currently taking a number of medications. -2- Contrary to Crawford's claims, a third-party observation by the Social Security Administration showed he had no problems reading, breathing, understanding, concentrating, talking, or answering during his interview. As for credibility, according to the ALJ, "the relevant medical records show[ed] that the claimant's overall treatment history and the objective medical evidence fail[ed] to fully support the claimant's allegations about the severity of his limitations." Medical records from 2007 through 2012 consistently revealed that Crawford had a normal gait, a normal range of motion, an intact memory, no sensory deficiency, no irregular swelling in his legs, and mostly clear lungs. He also denied psychiatric problems in several medical records. Because of the inconsistencies between Crawford's testimony and the objective medical records, the ALJ determined Crawford was "not credible in his allegations about the severity of his work-related limitations." Following the five-step sequential evaluation process used by the Social Security Administration to determine disabilities of adults, the ALJ held that Crawford was not involved in substantial gainful activity; had a severe medically determinable physical impairment; had no disabling impairment; and had a Residual Functional Capacity (RFC) limited to sedentary work. See 20 C.F.R. § 416.920(a)- (e). More specifically, the ALJ described Crawford's RFC as follows: The claimant has the maximum [RFC] to lift and carry 10 pounds occasionally and less than 10 pounds frequently. Total in an eight-hour day, he can stand and walk for no more than two hours, and he can sit for six hours. He must avoid concentrated exposure to respiratory irritants. At the fourth step of the analysis, the ALJ found that Crawford could not participate in his past relevant work. At the fifth step, the ALJ noted that because Crawford's "non-exertional limitations do not significantly erode the sedentary occupational base, there are jobs that exist in the national economy that the claimant can perform when -3- his vocational factors and [RFC] are considered." Thus, based on the Medical- Vocational Guidelines, the ALJ found Crawford was not disabled. On appeal, Crawford argues (1) that the ALJ wrongfully rejected the opinion of Crawford’s treating nurse practitioner, Patrick Drummond, and (2) that the ALJ erred at step five by using the Medical-Vocational Guidelines to find him not disabled. II. DISCUSSION We review the district court's determination to grant or deny Social Security benefits de novo. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). We must "'affirm the ALJ's finding if supported by substantial evidence on the record as a whole.'" Id. (quoting Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)). All evidence, including "'evidence that both supports and detracts from the ALJ's decision,'" must be considered. Id. (quoting Medhaug, 578 F.3d at 813). Substantial evidence exists when there is enough evidence in the record "'that a reasonable mind might accept it as adequate to support a decision.'" Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (quoting Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007)). This is a lower standard than a preponderance of the evidence. Id. Moreover, great deference is given to the ALJ's decision. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). Thus, if the record shows two positions that are plausible and can be supported by substantial evidence, we must follow the ALJ's position and affirm its decision. Perkins, 648 F.3d at 897. A. Crawford’s Nurse Practitioner Patrick Drummond, a nurse practitioner, treated Crawford in January of 2010 and concluded that Crawford had the maximum capacity to lift less than ten pounds frequently, could stand or walk for a total of two hours in a normal workday, and -4- could sit for a total of eight hours during a normal workday. Drummond also opined that Crawford could never climb, balance, stoop, kneel, crouch, bend, or reach, but he could occasionally handle, finger, feel, see, hear, and speak. Crawford claims that the ALJ wrongly rejected Drummond's opinion. We disagree. First, to establish a disability or impairment, the Social Security Administration requires "evidence from acceptable medical sources." 20 C.F.R. § 416.913(a). Such acceptable medical sources include licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech- language pathologists. Id. "In addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, [the Commissioner] may also use evidence from other sources . . . ." Id. § 416.913(d) (emphasis added). Other sources include nurse practitioners, physicians' assistants, chiropractors, educational personnel, and social welfare agency personnel, among others. Id. Thus, Drummond, as a nurse practitioner, was not an acceptable medical source. Id. § 416.913(a). As such, the ALJ had the option, within his discretion, to consider Drummond's opinion so long as it was not wholly inconsistent with other opinions from Crawford's treating physicians. This nuance, discussed below, highlights the major problem with Drummond's opinion and is the primary reason the ALJ correctly gave less weight to his medical opinion. Second, the ALJ did not err by failing to rely on Drummond's medical opinion because of the great weight of evidence to the contrary. "An ALJ may 'discount or even disregard the opinion of a treating physician where other medical assessments are supported by better or more thorough medical evidence, or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions.'" Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). If an ALJ may discount a treating physician's opinion for inconsistencies, an ALJ may certainly discredit a nurse practitioner's inconsistent opinion. Drummond's opinion stated that Crawford was -5- unable to lift or carry ten pounds but could walk or stand for up to two hours per day and sit for up to eight hours a day. This assessment directly conflicts with statements made by Crawford on the record. Crawford stated on numerous occasions, including on his Social Security Administration Function Report, that he could carry between ten and fifteen pounds. Medical evidence on the record also discredits Drummond's allegation that Crawford could never reach, climb, balance, or stoop. Crawford attested to his ability to reach in his function report and by admitting he can perform normal activities associated with daily living. Specifically, the evidence shows that Crawford can dress himself and is mobile enough to do some chores around the house such as cook simple meals, sweep, and mop. Moreover, most of the medical records from licensed physicians unambiguously state that Crawford has a normal gait and can balance enough to stand and walk without assistance. For example, in 2007, Dr. Gholson, one of Crawford's treating physicians, explicitly stated that the claimant did not have a disability that prevented him from engaging in gainful activity. Finally, the ALJ considered the parts of Drummond's opinion that were consistent with other medical opinions. The ALJ found that Crawford had a maximum RFC to stand or walk for no more than two hours and sit for six hours. These findings come directly from Drummond's January 2010 evaluation. Drummond's analysis on the other issues, however, was appropriately left out as discussed above. Therefore, the ALJ correctly considered all evidence on the record, including Drummond's opinion, and correctly gave each medical opinion the appropriate weight. The ALJ properly considered Crawford's impairments supported in the record. Thus, the ALJ did not err in rejecting the inconsistent parts of Drummond's medical opinion. B. Medical-Vocational Guidelines In regards to the five-step sequential evaluation process used by the Social Security Administration to determine disabilities of adults, both Crawford and the -6- Commissioner agree with the ALJ that Crawford is not involved in substantial gainful activity; has a severe medically determinable physical impairment; has no disabling impairment; has an RFC limited to sedentary work; and cannot participate in his past relevant work. See 20 C.F.R. § 416.920 (a)-(f). Thus, the only issue here is whether Crawford can perform another type of work; and more specifically, whether it was appropriate for the ALJ to rely on the Medical-Vocational Guidelines in making this determination. Crawford argues that the ALJ erred in applying the Medical- Vocational Guidelines because he suffers from significant nonexertional impairments that diminish his RFC to perform the full range of activities listed in the Guidelines. According to Crawford, the ALJ should have considered a vocational expert's testimony. We disagree. In step five of the sequential evaluation process the burden shifts to the Commissioner to show that the claimant can perform other types of work and that the particular type of work is available in the national economy. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992). The Commissioner considers the claimant's RFC along with the claimant's "age, education, and work experience to see if [the claimant] can make an adjustment to other work." 20 C.F.R. § 416.920(a)(4)(v). If the claimant is able to make an adjustment, he or she is not disabled under the Social Security Act. Id. The Social Security Administration uses the Medical-Vocational Guidelines to make this determination "where an individual with a severe medically determinable physical or mental impairment(s) is not engaging in substantial gainful activity and the individual's impairment(s) prevents the performance of his or her vocationally relevant past work." 20 C.F.R. Part 404, Subpart P, App. 2. Whether the Guidelines may be used in deciding this final step depends on whether the claimant's limitations are exertional or nonexertional. An exertional limitation "affect[s] [one's] ability to meet the strength demands of [a] job[]" such as "sitting, standing, walking, lifting, carrying, pushing, and pulling." 20 C.F.R. § 404.1569a(a). Nonexertional limitations include anxiety, depression, difficulty -7- concentrating, memory deficiencies, sight and hearing impairments, difficulty tolerating dust or fumes, and "manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching." See id. § 404.1569a(c)(1). If the limitations are exertional, the ALJ may rely solely on the Guidelines. Robinson, 956 F.2d at 841. If the limitations are nonexertional, however, the Guidelines can be used only if the record as a whole shows that "'the nonexertional impairment does not diminish the claimant's [RFC] to perform the full range of activities listed in the Guidelines.'" Lucy v. Chater, 113 F. 3d 905, 908 (8th Cir. 1997) (quoting Thompson v. Bowen, 850 F.2d 346, 349-50 (8th Cir. 1988)). Crawford's obesity and COPD are nonexertional limitations. Thus, because Crawford's limitations are, in part, nonexertional and the ALJ relied on the Guidelines without seeking a vocational expert, the primary issue is whether there is substantial evidence on the record to show that Crawford's nonexertional limitations restrict performance such that he is unable to perform the full range of sedentary work as described in his RFC. If these limitations restrict Crawford's performance of sedentary work, the Guidelines should not have been used. The objective evidence on the record shows that Crawford's nonexertional limitations (obesity and COPD) do not restrict his ability to perform sedentary work, and thus, the ALJ correctly relied upon the Guidelines in order to find Crawford not disabled. First, Crawford's statements regarding his disability and functional capacity are not supported by medical reports and, in fact, contradict some of the medical reports. An ALJ has a "statutory duty" to "assess the credibility of the claimant," and thus, "an ALJ may disbelieve a claimant's subjective reports of pain because of inherent inconsistencies or other circumstances." Eichelberger v. Barnhart, 390 F.3d 584, 589-90 (8th Cir. 2004). Crawford claims that the ALJ erred in relying on the Guidelines because his obesity and COPD do, in fact, limit his ability to perform even sedentary work. He claims he has problems with his legs, trouble breathing, heart issues, and other problems associated with obesity. He claims he can stand for only twenty to thirty minutes before needing to rest; cannot sit without worsening his -8- problems; and cannot bend, stoop, or crouch. Contrary to Crawford's testimony, however, the medical records show that Crawford is able to sit for six hours a day, stand or walk for two hours per day, and lift ten pounds. Moreover, a majority of the medical reports noted that Crawford has a normal range of motion, a normal gait, and clear lungs. The record also discloses that Crawford could walk without assistance and did not have debilitating swelling in his legs. Based on these discrepancies, the ALJ correctly found that Crawford's allegations about the severity of his disability and the resulting impact were not credible. Second, when determining whether a person is disabled, the Commissioner "consider[s] all . . . symptoms, including pain, and the extent to which [the] symptoms can reasonably be accepted as consistent with the objective medical evidence, and other evidence." 20 C.F.R. § 416.929(a) (emphasis added). As shown above, the symptoms Crawford attested to are inconsistent with the objective medical evidence found on the record, and hence, need not be given great weight when considered against objective medical evidence. Eichelberger, 390 F.3d at 589. Crawford's credibility is further reduced by his previous failure to comply with medical treatment; continued tobacco and alcohol use; occasional cocaine use; and minimal work history. Thus, the ALJ correctly discredited Crawford's testimony and relied on the medical evidence on the record, which shows that Crawford's nonexertional limitations (obesity and COPD) do not restrict his ability to perform sedentary work. Although "[a]n RFC for less than a full range of sedentary work reflects very serious limitations," the Social Security Administration has never stated that morbid obesity automatically prevents a person from working, especially when the work is sedentary. SSR 96-9p, 1996 WL 374185 (July 2, 1996). And here, the evidence clearly shows that Crawford can sit for six hours a day, walk or stand for two hours a day, lift and carry ten pounds, and breathe in a clean environment despite his nonexertional limitations. Thus, his obesity and COPD (nonexertional limitations) do not significantly erode the occupational base at the sedentary level. -9- We conclude that the ALJ did not err by failing to obtain vocational expert testimony and instead relying solely on the Medical-Vocational Guidelines because Crawford's "'nonexertional impairment[s] [do] not diminish [his RFC] to perform the full range of [sedentary] activities.'" Lucy, 113 F. 3d at 908 (quoting Thompson, 850 F.2d at 349-50). Accordingly, substantial evidence on the record supports the ALJ's decision at step five that Crawford is not disabled because he can adjust to other work in the economy. III. CONCLUSION The judgment of the district court is affirmed. ______________________________ -10-	{ "pile_set_name": "FreeLaw" }
43 F.3d 364 Basil SHELL and Marlene Shell, Appellees,v.AMALGAMATED COTTON GARMENT and Allied Industries Fund andAmalgamated Life Insurance, Appellants. No. 94-2060. United States Court of Appeals,Eighth Circuit. Submitted Nov. 14, 1994.Decided Dec. 19, 1994. Mark Philip Wine, Minneapolis, MN, argued (Mark P. Wine, Linda J. Soranno and Christopher J.A. Curry, on the brief), for appellants. Frank J. Rajkowski, St. Cloud, MN, argued, for appellees. Before BEAM, Circuit Judge, FRIEDMAN,* Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge. MORRIS SHEPPARD ARNOLD, Circuit Judge. 1 In mid-1990, Basil Shell was very seriously injured in a car accident. His medical expenses eventually totaled approximately $140,000, for which he submitted claims to his insurance plan. Although the insurance plan did not dispute his eligibility for payment of those claims, it insisted that before the claims would be processed and paid, Mr. Shell would have to execute a document granting a "primary lien" to the insurance plan on any proceeds that he might obtain "as a result of any judgement [sic ], settlement or other means, of any claim or cause of action" against a third party. Mr. Shell declined to execute the document, whereupon, in mid-1991, the insurance plan refused to process his claims. 2 About six weeks later, Mr. Shell and his wife sued the insurance plan in state court, asserting a claim under Mr. Shell's health insurance contract. The insurance plan removed the case to federal district court, since the insurance contract was subject to the Employee Retirement Income Security Act (ERISA), see 29 U.S.C. Secs. 1001-1461. On a motion for partial summary judgment, the district court held in September, 1992, that the express terms of the insurance contract did not require Mr. Shell to execute the lien document sought. The district court held that the express terms of the insurance contract did allow the right of subrogation to the insurance plan but that that right did not accrue until after Mr. Shell recovered a judgment or settlement from a third party. The district court therefore ordered the insurance plan to process Mr. Shell's claims. 3 In mid-November, 1992, with the knowledge of the insurance plan, Mr. Shell agreed to settle, for $500,000, all of his claims against third parties related to the accident. At that point, the insurance plan had actually paid approximately $13,350 of Mr. Shell's medical expenses. The settlement documents specified that $63,300 would be held in escrow, pending resolution of the insurance plan's subrogation claim. Between mid-November and mid-December, 1992, when Mr. Shell finally executed all of the settlement documents, the insurance plan paid approximately $48,525 more for medical expenses. After mid-December, 1992, the insurance plan paid approximately $27,600 more for medical expenses. 4 On cross-motions for summary judgment, the district court held that the insurance plan's subrogation right applied only to the amount paid before mid-November, 1992, when Mr. Shell agreed to settle his claims against third parties. The insurance plan appeals, arguing that it is entitled to subrogation with respect to the entire amount paid toward Mr. Shell's medical expenses (approximately $89,475). We affirm the judgment of the district court.1 I. 5 The insurance contract states that it "shall control ... the conditions which [eligible persons] must satisfy to become covered" and that "[t]his Plan is the legal document governing all benefits." ("Plan" in the insurance contract refers to the contract itself, as distinguished from the entity administering the insurance program, which is referred to as the "Fund" in the insurance contract. For the sake of simplicity, however, we refer to the actual documents as the insurance contract and to the administering entity as the insurance plan.) The insurance contract specifies that "[w]hen benefits are paid ... under the terms of this Plan, the Fund shall be subrogated to the rights of recovery of [the insured person] against any person or entity who is liable for the injury ... for which the benefits were paid.... Such subrogation rights shall extend only to the recovery by the Fund of the benefits it has paid." Under the insurance contract, the board of trustees of the plan "shall have the exclusive right to interpret any and all of the provisions of this Plan and to determine any questions arising thereunder or in connection with administration of this Plan." 6 The insurance contract gives the plan the power to interpret the contract's provisions. Judicial review of such an interpretation is centered, therefore, on the question of whether the plan's interpretation of the insurance contract is an abuse of discretion. See, e.g., Kennedy v. Georgia-Pacific Corp., 31 F.3d 606, 609 (8th Cir.1994). We have variously defined an interpretation that would be an abuse of discretion as being "extremely unreasonable," id.; "virtually" the same as arbitrary and capricious, Lutheran Medical Center v. Contractors, Laborers, Teamsters, and Engineers Health and Welfare Plan, 25 F.3d 616, 620 n. 2 (8th Cir.1994); and " 'extraordinarily imprudent,' " Cox v. Mid-America Dairymen, Inc., 965 F.2d 569, 572 (8th Cir.1992), quoting G.G. Bogert and G.T. Bogert, The Law of Trusts and Trustees Sec. 560 at 204 (rev. 2d ed. 1980). We review de novo the district court's conclusion in that respect. See, e.g., Kennedy, 31 F.3d at 609. 7 The plan's interpretation of the insurance contract is that the subrogation provisions allow the plan to assert a right to reimbursement from the settlement proceeds for all medical benefits that it pays for Mr. Shell, regardless of when the actual payment is made. In determining whether that interpretation is an abuse of the plan's discretion, we consider "whether the interpretation contradicts the plan's clear language, whether the interpretation renders any plan language internally inconsistent or meaningless, whether the interpretation is consistent with earlier interpretations, whether the interpretation is consistent with the plan's goals, and whether the plan satisfies ERISA requirements." Id. II. 8 In holding that the plan's interpretation of the insurance contract's subrogation provisions was an abuse of discretion, the district court noted that the plain language of the insurance contract limits the plan's recovery to the amount it "has paid," rather than to any amount it "has paid or will pay." The district court also noted that the rights of a party with a subrogation interest in an injured person's claim are no greater than the rights of the injured person himself and concluded, therefore, that once the injured person settles a claim and thus extinguishes his own right to further pursuit of that claim, the rights of the party with the subrogation interest in the claim are extinguished as well. The district court stated that an interpretation allowing the party with a subrogation interest to recover for amounts paid by it after a settlement would not only contradict the plain language of the insurance contract but would also render the term "subrogation" meaningless. We agree with the analysis of the district court. 9 We observe, as well, that according to a letter from Mr. Shell's lawyer to the insurance plan's lawyer, the settlement proceeds were not only for medical expenses for Mr. Shell but for "loss of means of support" for Mr. Shell's wife and daughter (and, presumably, for Mr. Shell's own loss of past and future income). We do not have a copy of the settlement documents and therefore cannot draw any conclusions with respect to how much of the settlement proceeds was to be considered applicable to medical expenses. See, e.g., Kennedy v. Georgia-Pacific Corp., 31 F.3d 606, 611 (8th Cir.1994). Finally, we note that, unlike some other insurance contracts, the contract in this case has no reimbursement language separate from the subrogation provisions. See, e.g., McIntosh v. Pacific Holding Co., 992 F.2d 882, 884 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 441, 126 L.Ed.2d 375 (1993). III. 10 For the reasons stated, we affirm the judgment of the district court. * The HONORABLE DANIEL M. FRIEDMAN, Senior Circuit Judge, United States Court of Appeals for the Federal Circuit, sitting by designation 1 The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota	{ "pile_set_name": "FreeLaw" }
Matter of Luis R. v Maria Elena G. (2014 NY Slip Op 05792) Matter of Matter of Luis R. v Maria Elena G. 2014 NY Slip Op 05792 Decided on August 13, 2014 Appellate Division, Second 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 August 13, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentTHOMAS A. DICKERSON, J.P. JOHN M. LEVENTHAL LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX, JJ. 2013-08591 (Docket No. G-8926-12) [1]In the Matter of Luis R. (Anonymous), appellant, vMaria Elena G. (Anonymous), respondent. Miriam Chocron, Hicksville, N.Y., for appellant. Kellie Stabile, Westbury, N.Y., attorney for the child. DECISION & ORDER In a guardianship proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Nassau County (Singer, J.), dated July 31, 2013, which, upon the granting of the guardianship petition in an order of the same court dated April 16, 2013, and after a hearing, in effect, denied his motion for the issuance of an order declaring that the subject child, Cristian F. M. G., is dependent on the Family Court and making specific findings that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law, and that it would not be in his best interests to be returned to his previous country of nationality or last habitual residence, so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petitioner's motion is granted, it is declared that Cristian F. M. G. is dependent on the Family Court, and it is found that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, abandonment, or similar parental conduct defined under State law, and that it would not be in his best interest to return to El Salvador, his previous country of nationality and last habitual residence. In August 2012, the petitioner filed a petition pursuant to Family Court Act article 6 for custody of his nephew, Cristian F. M. G. (hereinafter the child), for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, abandonment, or similar parental conduct defined under State law, and that it would not be in his best interests to be returned to El Salvador, his previous country of nationality and last habitual residence, so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27). Thereafter, the petitioner moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. In an order dated April 16, 2013, the Family Court granted the guardianship petition. In an order dated July 31, 2013, made after a hearing, the Family Court, in effect, denied the petitioner's motion. Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 U.S. Stat 5044) and 8 CFR 204.11, a "special immigrant" is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual [2]appointed by a State or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (see 8 USC § 1101[a][27][J][i]; Matter of Maria P.E.A. v Sergio A. G. G., 111 AD3d 619, 620; Matter of Trudy-Ann W. v Joan W., 73 AD3d 793, 795), and that it would not be in the juvenile's best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c][6]; Matter of Maria P. E. A. v Sergio A. G. G., 111 AD3d at 620; Matter of Trudy-Ann W. v Joan W., 73 AD3d at 795). This Court's power to review the evidence is as broad as that of the hearing court, and where, as here, the record is sufficiently complete to make our own factual determinations, we may do so (see Matter of Gabriel H. M. [Juan B. F.], 116 AD3d 855, 857; Matter of Kamaljit S., 114 AD3d 949). Based upon our independent factual review, the record establishes that the child's father is deceased, and therefore, reunification is not possible (see Matter of R., 118 AD3d 889). Since the statutory reunification requirement may be satisfied upon a finding that reunification is not viable with just one parent, we need not address the petitioner's contention that the record supports the conclusion that the child's reunification with his mother was not a viable option (see Matter of Gabriel H. M. [Juan B. F.], 116 AD3d at 857; Matter of Marcelina M.-G. v Israel S., 112 AD3d 100, 110-113). We further find that the record reflects that it would not be in the child's best interests to be returned to El Salvador. Thus, the Family Court erred by, in effect, denying the petitioner's motion for the issuance of an order making the requisite declaration and special findings so as to enable the child to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we declare that the child is dependent on a juvenile court, and we find that the child is unmarried and under 21 years of age, that reunification of the child with one or both of his parents is not viable due to the death of his father, and that it would not be in the best interests of the child to be returned to El Salvador. DICKERSON, J.P., LEVENTHAL, AUSTIN and HINDS-RADIX, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
THIRD DIVISION ELLINGTON, P. J., DILLARD and MCFADDEN, 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 12, 2015 In the Court of Appeals of Georgia A15A0456, A15A0457. THE STATE v. BROWN, et al. ELLINGTON, Presiding Judge. The Superior Court of Fulton County entered directed verdicts of acquittal in favor of Javaris Brown, Meyetta King, and Kevin Rouse on charges of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (A); possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1); and other violations of the Georgia Controlled Substances Act. In Case No. A15A0457, the State appeals, contending, inter alia, that the judgments must be vacated as having been entered when jurisdiction lay in this Court and not in the trial court. In addition, in Case No. A15A0456, the State appeals from two interlocutory rulings, contending that the trial court abused its discretion in granting the defendants’ motions to exclude certain evidence as a sanction for discovery violations and in granting the defendants’ motions to exclude evidence of other, uncharged crimes. For the reasons explained below, we vacate the judgments of acquittal and reverse in part the evidentiary rulings. Case No. A15A0457 1. The trial court directed verdicts of acquittal on all counts. As a threshold matter, therefore, we must determine whether the State has any right to appeal. Ordinarily, the State may not appeal a trial court’s grant to a criminal defendant of a directed verdict of acquittal based on an insufficiency of the evidence to support a conviction, in that a new trial would be barred by the double jeopardy clause of the Fifth Amendment. The government cannot appeal such a directed verdict of acquittal, even if it is erroneously granted. (Citations omitted.) State v. Williams, 246 Ga. 788-789 (1) (272 SE2d 725) (1980).1 In this regard, the State contends that, when the trial court called the case for trial, it 1 See Tolbert v. Toole, _ Ga. _ (767 SE2d 24) (2014); State v. Vansant, 208 Ga. App. 772, 776 (2) (431 SE2d 708) (1993), reversed in part on other grounds, Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994); State v. Fly, 193 Ga. App. 190, 191 (2) (387 SE2d 347) (1989); State v. Warren, 133 Ga. App. 793, 795-796 (213 SE2d 53) (1975). See also State v. Caffee, 291 Ga. 31, 33 (2) (728 SE2d 171) (2012) (“The State does not have the right to appeal decisions in criminal cases unless there is a specific statutory provision granting the right.”) (citation omitted). 2 lacked the authority to do so. Specifically, the State contends that it was authorized pursuant to OCGA § 5-7-1 (a) (5) to appeal from certain evidentiary rulings entered by the trial court a few days before the scheduled trial, that it filed a notice of appeal that was sufficient to divest the trial court of jurisdiction of the case and invest this Court with jurisdiction (Case No. A15A0456), and that the trial court will be reinvested with jurisdiction only after this Court disposes of the pending appeal, when we issue a remittitur and the same is filed in the trial court. Because the trial court lacked jurisdiction when it called the instant case for trial, the State contends, the judgments of acquittal must be vacated. The record shows the following proceedings. The defendants were arrested and indicted in April 2014. On July 3, 2014, the State filed pursuant to OCGA § 24-4-404 (b) notice of intent to introduce evidence of other acts of Brown and Rouse.2 On August 4, 2014, Brown filed a motion to suppress evidence seized pursuant to a search warrant executed on April 23, 2014. On August 18, 2014, Rouse filed a motion to suppress evidence seized on April 23, 2014, when he was detained outside the searched premises.3 2 See Division 3, infra. 3 See Division 2, infra. 3 The trial court conducted a hearing on the evidentiary issues on August 7, September 9, and September 10, 2014. On September 11, 2014, the trial judge signed an order excluding certain evidence as a sanction for discovery violations and excluding the other-acts evidence, and the clerk of court stamped the order “filed” on September 12, 2014. The court placed the case on a trial calendar for September 17, 2014. On September 12, 2014, the State filed a notice of appeal in the trial court pursuant to OCGA § 5-7-1 (a) (5). That Code section provides that in criminal cases the State may appeal “[f]rom an order, decision, or judgment excluding any . . . evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first[.]” To take such an appeal, the State must file “the notice of appeal . . . within two days of such order, decision, or judgment[,]” and the prosecuting attorney must “certif[y] to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding[.]” Id. On September 12, 2014, the State also filed a separate “Certificate of Purpose” in which the prosecuting attorney stated, “I hereby certify that the State’s appeal of this Court’s order excluding evidence as a sanction 4 for discovery violations and excluding OCGA § 24-4-404 (b) evidence is not taken for purpose of delay, and the evidence is a substantial proof of a material fact in the proceedings.” The trial court called the case for trial on September 17, 2014. The State notified the court that it had filed a notice of appeal from the September 12, 2014 rulings and argued that its notice of appeal had divested the trial court of jurisdiction to try the case. The defendants disputed this, arguing that the State failed to comply with the procedural requirements of OCGA § 5-7-1 (a) (5) (B). Specifically, they argued that the Statute requires the State to serve the trial judge directly with the required certification, that is, the State’s filing of its Certificate of Purpose in the office of the clerk of the trial court was insufficient to certify to the trial court that such appeal was not taken for purpose of delay and that the excluded evidence was substantial proof of a material fact. They also argued that the State’s appeal was in fact for purpose of delay. They argued that, given the abuse of discretion standard of review that would be applied by this Court, the State could not prevail on appeal. The prosecuting attorney reiterated that the appeal was not taken for purpose of delay and stated that it was necessary to appeal the court’s evidentiary rulings because, without the excluded evidence, the State could not carry its burden of proof at trial. The trial 5 court found that, although “[t]he State filed a document purporting to be . . . [the] certification” required by OCGA § 5-7-1 (a) (5), the State did not provide it “to the trial court” as required. The trial court also found that the State’s purpose in appealing was delay. The trial court ruled that the State’s appeal was invalid and that the court would proceed with the trial. The defendants all announced ready for trial. The State declined to participate, on the basis that the pending appeal divested the trial court of jurisdiction. The trial court then impaneled a jury. The State having failed to adduce any evidence, the defendants each moved for a directed verdict, and the trial court entered a directed verdict of acquittal as to each defendant. If, contrary to the trial court’s ruling, the State’s September 12, 2014 notice of appeal was effective under OCGA § 5-7-1 (a) (5), then that notice of appeal deprived the trial court of jurisdiction to try the defendants until the State’s appeal was resolved and the trial court received the remittitur from this Court. Chambers v. State, 262 Ga. 200, 201-202 (1), (2), (3) (415 SE2d 643) (1992) (holding that the State’s appeal of an order suppressing evidence deprived the trial court of jurisdiction to try the accused and any proceeding so conducted in the trial court was coram non judice and vacating the resulting judgment and that the return of the remittitur reinvests the 6 trial court with jurisdiction).4 Although a notice of appeal must be filed in the trial court, the appellate court “alone has the authority to determine whether such filing is sufficient to invoke its jurisdiction.” (Citation and punctuation omitted.) Hughes v. Sikes, 273 Ga. 804, 805 (1) (546 SE2d 518) (2001). Thus, we owe no deference to the trial court’s analysis of whether the State’s notice of appeal from the court’s evidentiary rulings was effective. In this case, it is undisputed that the State filed its notice of appeal from the trial court’s evidentiary ruling within two days after the ruling was entered, that is, the date a written judgment was received and stamped “filed” by the clerk of the trial court. See OCGA § 5-6-31 (“The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of [the Appellate Practice Act].”); In the Interest of K. D., 272 Ga. App. 803, 805 (613 SE2d 239) (2005); Brown v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997).5 Further, it is undisputed that the State filed with the clerk of the trial court a certification 4 See also Styles v. State, 245 Ga. App. 90, 92 (537 SE2d 377) (2000) (Blackburn, P.J., specially concurring) (explaining that the supersedeas resulting from an appeal in a criminal case applies to all “proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters”). 5 See also Christopher J. McFadden et al., Ga. Appellate Practice, § 10.3 (updated November 2014). 7 executed by the prosecuting attorney, who is an officer of the court, that the appeal was not taken for purpose of delay and that the evidence excluded in the appealed rulings was material. We conclude that this was sufficient to invoke the jurisdiction of this Court.6 We find no basis for concluding that the prosecuting attorney’s certification of purpose and necessity “to the trial court” can only be satisfied by personally serving the judge presiding over a case.7 When the General Assembly has intended that certain communications be made personally to a judge – as compared to matters that are to be submitted to a trial court as a governmental entity and made part of the official court records by filing in the office of the clerk of court – it has so provided.8 Moreover, it is undisputed that, before the trial judge moved forward with 6 See OCGA § 5-7-2 (b) (1) (A certificate of immediate review shall not be required to appeal from an order suppressing or excluding evidence under OCGA § 5-7-1 (a) (5).). 7 See OCGA § 5-7-6 (“This chapter[, that is, OCGA §§ 5-7-1 through 5-7-6,] shall be liberally construed to effectuate the purposes stated in this chapter.”). 8 See OCGA §§ 17-7-170 (“[A] demand for speedy trial shall be filed with the clerk of court and served upon the prosecutor and upon the judge to whom the case is assigned or, if the case is not assigned, upon the chief judge of the court in which the case is pending.”); 44-14-161 (a) (“When any real estate is sold on [nonjudicial] foreclosure. . . , no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and 8 impaneling a jury in this case, the prosecuting attorney personally informed the judge of the pending appeal, on the record and in open court. There is no issue of any lack of actual notice. Finally, even if this Court were inclined to question the prosecuting attorney’s representation that the State did not file its appeal from the trial court’s evidentiary rulings for purpose of delay, we find no support in the record for finding that delay was the State’s purpose, especially in light of the fact that the trial court’s pretrial rulings excluded virtually all of the inculpatory evidence that the State planned to offer9 and effectively doomed the entire prosecution. For the foregoing reasons, we conclude that the State’s pretrial notice of appeal was effective and deprived the trial court of jurisdiction to try the defendants pending resolution of the appeal. State v. Vansant, 208 Ga. App. at 776 (2), affirmed in relevant part, Vansant v. State, 264 Ga. at 319 (3). Because the trial court lacked jurisdiction to proceed with a trial of the defendants, such proceedings were without approval thereon.”). See also Uniform Superior Court Rules 16.1 (A notice of an attorney’s leave of absence shall be submitted to the clerk of the court and, in addition, “[a] copy of the notice shall be sent, contemporaneously, to the judge before whom an action is pending and all opposing counsel.”); 17.1 (B) (A written notice of an attorney’s conflict shall be given “to opposing counsel, to the clerk of each court and to the judge before whom each action is set for hearing (or, to an appropriate judge if there has been no designation of a presiding judge).”). 9 See Divisions 2 and 3, infra. 9 legal effect and the directed verdicts of acquittal are void. Chambers v. State, 262 Ga. at 201-202 (2). The final order of acquittal of all defendants is hereby vacated, and we turn to the underlying appeal. Case No. A15A0456 2. The State contends that the trial court abused its discretion in granting the defendants’ motion to exclude certain evidence, which was seized when investigators executed a search warrant, based on the court’s finding that the State violated its reciprocal discovery obligations. When a criminal defendant elects to engage in reciprocal discovery under Georgia’s Criminal Procedure Discovery Act, the State and the defendant are required to produce certain types of evidence and information. See OCGA § 17-16-1 et seq. If it comes to the attention of the trial court that either the State or the defendant has failed to comply with the requirements of the Act, the court has wide latitude in fashioning a remedy for such violation. OCGA § 17-6-6; Wilkins v. State, 291 Ga. 483, 486-487 (5) (731 SE2d 346) (2012); Leger v. State, 291 Ga. 584, 588 (2) (b) (732 SE2d 53) (2012); Jones v. State, 290 Ga. 576, 577-578 (2) (722 SE2d 853) (2012). As we have noted, this broad discretion allows such remedy as is warranted “to ensure a fair trial.” (Citation omitted.) Blankenship v. State, 229 Ga. App. 793, 10 794 (494 SE2d 758) (1997). See Burton v. State, - Ga. App. - (Case No. A14A1864, decided December 18, 2014) (accord). For example, when the State violates the Act by failing to timely identify a witness, “[i]t is usually a sufficient remedy for the defense to be afforded an opportunity to interview the witness.” (Citation and punctuation omitted.) Leger v. State, 291 Ga. at 588 (2) (b). Although the Act authorizes a trial court to prohibit the State from introducing evidence that it failed to disclose as required, “[e]xclusion of evidence is a particularly harsh sanction and should be imposed only where there is a showing of prejudice to the defendant and bad faith by the State.” (Citation and punctuation omitted.) Id. at 586 (2). “[T]he remedy a trial court fashions to cure a discovery violation is reviewed on appeal only for abuse of discretion.” (Citation omitted.) Jones v. State, 290 Ga. at 578 (2). The record shows the following. In early 2014, the Atlanta Police Department received information that illegal drugs were being sold out of 1808 Brewer Boulevard, a single-family house. An investigator arranged for a confidential source to buy cocaine and marijuana there, on April 7 and April 16. After the second controlled buy, the investigator obtained a search warrant for the premises. A team executed the search warrant on April 23, 2014. When the team arrived, Rouse was beside his car in the driveway, and Brown and King were inside the house. Brown 11 jumped out of a window and was immediately captured. Officers found a total of over 50 grams of cocaine, 9.72 grams of marijuana, and three scales in the kitchen and 10.27 grams of cocaine in one of the bedrooms. Officers arrested Brown and King. In a search incident to that arrest, officers found 11.51 grams of a Schedule 1 controlled substance10 in Brown’s sock. King told officers that Rouse had been selling drugs from the house. Officers then searched Rouse and seized a large quantity of cash that he had in his pocket and 16.81 grams of heroin that was concealed in his underwear. In their motions to suppress all evidence seized as a result of the search, the defendants argued that the issuance of the search warrant was not supported by probable cause, that they were merely present in the house at the execution of the warrant, and that there was not probable cause to arrest them. Before the hearing on the motions to suppress, the State represented to the trial court that it had provided discovery to the defendants. At the motions hearing on August 7, 2014, the State advised the court that investigators had recorded the execution of the search warrant, but the State had not produced the recording to the defendants. The court suspended 10 See OCGA § 16-13-25 (3) (DDD) (ethylone). 12 the hearing to allow the State to make a supplemental discovery response and to allow the defendants an opportunity to review the recording. The hearing resumed on September 9, 2014. During the State’s direct examination of the investigator who obtained the search warrant, the prosecutor asked whether the investigator had conducted surveillance on 1808 Brewer Boulevard before arranging for controlled purchases by her confidential source. The investigator replied that she had gone to the house twice in the weeks before the controlled buys. She saw some people going in and out of the house but could not determine what they were doing there. When asked whether she included information about the surveillance in her affidavit in support of her application for a warrant, the investigator responded, “I think I just have it in my . . . personal notes,” but testified that she had discussed the surveillance with the magistrate who handled the warrant application. Defense counsel cross-examined the investigator about her surveillance and whether she had written down information about the surveillance and turned it over to the State. The investigator responded that she had written it down but had not turned it over to the State. At this point, the trial court asked where the investigator “maintain[ed] a log about the surveillance[,]” and the investigator replied, “on the computer. We just type our own notes.” The trial court asked whether defense counsel 13 wanted “time with [those] notes” before proceeding with the hearing and, when they said they did, suspended the hearing to allow the State to “get the notes off the computer” and produce them to the defendants. When the hearing reconvened the following day, the prosecuting attorney reported that the investigator had searched her computer and her files and had prepared a narrative summary of everything she could remember about the surveillance. The investigator testified that she had used the wrong terminology in referring to a “log” or “personal notes” and that the only thing that she had typed on the computer was her investigative summary, which she created and then added to as her investigation progressed. She had provided that document to the State, and the prosecuting attorney had previously produced it to the defendants. According to the investigator, the only notes that she had ever created in connection with the case that she had not provided to the State were handwritten on scraps of paper and were limited to a description of the house and “what [she] saw that day,” which was information she needed to include in her warrant application and affidavit. After she had transcribed this information verbatim into her warrant application, the investigator had discarded those scraps of paper; they were not part of the State’s discovery production. 14 The trial court stated to the prosecuting attorney, “the State is responsible for everything that law enforcement has. So it is the State’s obligation to get it, determine whether it is discoverable, determine whether it is Brady material, and produce it. . . . When law enforcement has [information], the State has it.”11 The trial court then instructed the investigator “for future reference,” that when a case gets indicted . . . everything counts[.] Your scrap notes, your personal notes, everything associated with that case . . . is subject to discovery[.] And[,] when you don’t produce it, it puts everyone, including the State, because they’re responsible for producing it, in a position where folks start [wondering], [“]well, what are they hiding . . . , what got covered up, what else don’t we know[?”] . . . It puts me in a position where I have to decide whether there’s been intentional misconduct[.] And if there’s been intentional misconduct, [evidence] gets thrown out[,] because the Constitution pretty much says that’s what happens when there’s intentional misconduct[:] it gets held against the State. So when you testify under oath there are notes on the computer and then[,] the next day, there are no notes on the computer, that’s a problem. The court found that “the failure to preserve notes pertinent to the case . . . raise[d] an issue of spoliation.” Taking this together with the delayed production of the 11 See Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1962). 15 recording of the execution of the search, the trial court found a “pattern of failure [of the State] to provide full discovery.” The court found that this pattern of behavior was “grossly unfair” and “violate[d] these folks’ rights.” On this basis, the trial court granted the motions to suppress everything seized in executing the search warrant. The trial court expressly found, however, that the warrant was supported by probable cause and was properly executed and ruled that the suppression was “for reasons independent of the validity of the warrant itself.” Although, as posited by the trial court, when law enforcement has information, the State is deemed to have it for purposes of the reciprocal discovery Act,12 this does not mean, as the trial court went on to conclude, that “everything associated with [a] case . . . is subject to discovery.” The Act specifies materials that must be produced, including statements attributable to the defendant;13 pictures, documents, and tangible evidence “intended for use by the prosecuting attorney as evidence” at trial;14 results 12 See OCGA § 17-16-1 (a) (“‘Possession, custody, or control of the state or prosecution’ means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted.”). 13 OCGA § 17-16-4 (a) (1). 14 OCGA § 17-16-4 (a) (3). 16 or reports of physical or mental examinations and of scientific tests or experiments, again, if intended for use by the prosecuting attorney at trial;15 and any statement of any witness that the prosecuting attorney intends to call as a witness at trial and that relates to the subject matter of the witness’s testimony.16 See White v. State, 271 Ga. 130 (518 SE2d 113) (1999). The purpose of the Act is to promote fairness and efficiency in criminal proceedings and to prevent so-called “trial by ambush.”17 We find no basis for concluding that the Act requires every member of law enforcement to preserve “everything associated with [every] case,” including informal notes created by an investigator only for the purpose of helping the investigator include 15 OCGA § 17-16-4 (a) (4). 16 OCGA § 17-16-7. 17 State v. Dickerson, 273 Ga. 408, 410 (1) (542 SE2d 487) (2001) (“The purpose of the Act is to establish a closely symmetrical scheme of discovery in criminal cases that maximizes the presentation of reliable evidence, minimizes the risk that a judgment will be predicated on incomplete or misleading evidence, and fosters fairness and efficiency in criminal proceedings.”) (citation and punctuation omitted); White v. State, 271 Ga. at 130 (“The purpose of the act is to prevent surprise and trial by ambush[.]”) (footnote omitted). See also Jones v. State, 276 Ga. 171, 174- 175 (575 SE2d 456) (2003) (“Contrary to the view of some, our legal system is not simply an elaborate game of ‘Gotcha!’ This Court does not endorse acquittal by ambush on the part of a defendant any more than it does trial by ambush on the part of the State. Nor do we condone induced error. The object of all legal investigation is the truth, and procedural rules are in place to further such goal in an orderly fashion.”) (citation and punctuation omitted). 17 accurate information in a warrant application.18 The record does not show that the investigator’s informal notes, which the State could not produce, were subject to discovery under any of the provisions of the Act.19 We conclude, therefore, that the trial court abused its discretion in imposing the extreme sanction of evidence exclusion for the State’s failure to produce the investigator’s notes. 3. The State contends that the trial court erred in ruling that the State’s intended evidence of other crimes was not relevant for a proper purpose and abused its discretion in granting the defendants’ motion to exclude the evidence on that basis. 18 Cf. OCGA §§ 17-5-55 (retention of property that is introduced into evidence during the pendency of a criminal case); 17-5-56 (a) (preservation of physical evidence collected at the time of a crime that contains biological material relating to the identity of the perpetrator of the crime). 19 To the extent the appellees suggest that the notes may have been exculpatory, they have not articulated how the investigator’s description of the activity she observed during her surveillance could have been exculpatory. A finding of a Brady violation, that is, that the State failed to disclose evidence that is both favorable to the accused and material either to guilt or to punishment, Brady v. Maryland, 373 U. S. at 87, cannot be based on mere speculation. Williams v. State, 251 Ga. 749, 789 (7) (312 SE2d 40) (1983); Jones v. State, 276 Ga. App. 728, 730-731 (624 SE2d 275) (2005); Pinson v. State, 266 Ga. App. 254, 263-264 (8) (596 SE2d 734) (2004); Nikitin v. State, 257 Ga. App. 852, 854 (1) (a) (572 SE2d 377) (2002); Merritt v. State, 248 Ga. App. 709, 713-714 (3) (548 SE2d 427) (2001). 18 Georgia’s new Evidence Code governs this contention.20 OCGA § 24-4-404 (b) of the new Code provides: Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Moreover, under OCGA § 24-4-403, “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Both of these provisions track their federal counterparts, Rules 403 and 404 (b) of the Federal Rules of Evidence. See Bradshaw v. State, - Ga. - (3) (Case No. S14A1365, decided March 2, 2015).21 Like the Eleventh Circuit Court of Appeals, Georgia’s courts apply a 20 See Ga. L. 2011, p. 99, §§ 2, 101 (Georgia’s new Evidence Code, OCGA § 24-1-1 et seq., applies to any motion, hearing or trial commenced on or after January 1, 2013.). 21 Our new Evidence Code was based in large part on the Federal Rules of Evidence. And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance. Thus, the uncodified first section 19 three-part test to determine admissibility of evidence of other crimes and acts under Rule 404 (b): “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” (Citation, punctuation, and footnote omitted.) Bradshaw v. State, - Ga. at - (3).22 A trial court’s decision to admit or exclude of the statute enacting the new Evidence Code explains: It is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals. It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence. (Citations and punctuation omitted.) Parker v. State, - Ga. - (3) (Case No. S14G1005, decided February 16, 2015). 22 See Chynoweth v. State, - Ga. App. - (3) (768 SE2d 536) (2015) (accord); Curry v. State, 330 Ga. App. 610 (1) (768 SE2d 791) (2015) (accord); Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014), cert. granted, (accord). We note that a somewhat different three-part test applied under prior law, but that test also required the State to show that the evidence was relevant to an issue other than the defendant’s character. See Peoples v. State, 295 Ga. 44, 54 (4) (b) (757 SE2d 646) (2014) (Under prior law, the State bore the burden of showing that “the independent offense or act [was] offered not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an 20 evidence under Federal Rules of Evidence 403 and 404 (b), as incorporated into Georgia’s new Evidence Code, is reviewed for “a clear abuse of discretion.” (Citation and punctuation omitted.) Bradshaw v. State, - Ga. at - (3). See also Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014)”(Evidentiary rulings are reviewed under an abuse of discretion standard[.]”) (citation omitted). In this case, the record shows that the State filed its notice of intent to introduce evidence of other acts pursuant to OCGA § 24-4-404 (b) as proof of intent, motive, plan, and absence of mistake or accident. Specifically, the State identified the following acts: a 2005 charge against Brown and Rouse for trafficking in cocaine and a 2009 charge against Brown for possession of marijuana with intent to distribute. As to the 2005 incident, a police officer testified that he received information from a concerned citizen that drugs were being “bagged” at a house in Fulton County. Upon arriving at the house, the officer observed through one of the windows three men, including Brown and Rouse, cutting and packaging crack cocaine and marijuana in the kitchen of the house. The team of officers forced entry and found the men exception to the general rule of inadmissibility[.]” In addition, the State was required to show that the accused committed the independent offense or act and that there was a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.) (citation and punctuation omitted). 21 hiding in a bedroom closet. The house, which was in an area where most of the houses were vacant, had little furniture, but there was a TV with some cameras hooked to it. The officers seized 137 grams of crack cocaine and 11 grams of marijuana. As to the 2009 incident, a patrol officer testified that he received a call that several men were selling and using drugs at a food mart in Fulton County. The officer went to that location, where he saw six men including Brown. The officer and his partner obtained the mens’ consent to search their persons. Brown had on his person 11 bags of marijuana, collectively weighing 8.1 grams. After hearing this evidence, the trial court found that the only relevance of the 2005 and 2009 incidents to the charges in the instant prosecution was as evidence of a propensity, “that one does that sort of thing.” The court found that, as such, the other-acts evidence was inadmissible for the purposes propounded by the State. The State argues that “[t]he overarching tenet of Georgia’s new evidence code is one of inclusion of evidence, and that tenet extends to OCGA § 24-4-404 (b), which now governs the admissibility of other crimes, wrongs, or acts.” Under this tenet of inclusion, the State contends that the other-acts evidence at issue is relevant to an 22 issue other than the defendants’ character because the prior uncharged offenses involved the same mental state as the instant offenses. The State’s argument glosses over the significant exclusionary impact of the prohibition against propensity evidence that survives in OCGA § 24-4-404 (b). Our new rule, like the federal rule, embodies the longstanding and fundamental principle that evidence of a person’s other acts is inadmissible for the purpose of showing that the person has a criminal disposition or a propensity for certain conduct because of the risks inherent in such evidence in compromising the presumption of innocence and the reasonable doubt standard.23 If the only way to find that other- 23 See generally Paul S. Milich, “The Degrading Character Rule in American Criminal Trials,” 47 Ga. L. Rev. 775, 777 (2013) (The traditional common law character rule, which appeared in English courts during the Restoration Period and around the same time as the hearsay rule, prohibited use of the accused’s bad character or prior, unrelated misconduct to suggest that he or she therefore was more likely guilty of the crime charged.). As the Unites States Supreme Court explained more than half a century ago: The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. 23 acts evidence is relevant for a permissible purpose is by inferring that the defendant had a propensity to commit such a crime, OCGA § 24-4-404 (b) requires that the evidence be excluded.24 (Footnotes omitted.) Michelson v. United States, 335 U. S. 469, 475-476 (69 SCt 213, 93 LEd 168) (1948). See also Amey v. State, - Ga. App. - (1) (Case No. A14A1803, decided March 18, 2015) (accord); United States v. Clay, 667 F3d 689, 697 (B) (6th Cir. 2012) (“As empirical studies have shown, evidence of prior bad acts influences factfinders even when the court gives a limiting instruction.” Where the nature of other-crimes evidence suggested that the accused was “a repeatedly violent offender[,]” the evidence “created a serious risk that the jury used the evidence for precisely the reasons it was counseled not to: that [he] was a bad person and a threat to society. Thus, the unfair prejudicial impact of the evidence substantially outweighed its slim probative value.”) (citations and punctuation omitted). 24 See United States v. Clark, 774 F3d 1108, 1114-1115 (II) (B) (7th Cir. 2014); (“[T]he proponent of the [other-acts] evidence must first establish that the other act is relevant to a specific purpose other than the person’s character or propensity to behave in a certain way through a chain of reasoning that does not rely on the forbidden inference that the person has a certain character and acted in accordance with that character on the occasion charged in the case. If that is done, the court must assess whether the probative value of the other-act evidence is substantially outweighed by the risk of unfair prejudice, and this balancing should take account of the extent to which the non-propensity fact for which the evidence is offered actually is at issue in the case.”) (citations and punctuation omitted); United States v. Stacy, 769 F3d 969, 974 (II) (A) (7th Cir. 2014) (“Other-act evidence need not be excluded whenever a propensity inference can be drawn. But its relevance to another purpose must be established through a chain of reasoning that does not rely on the forbidden inference that the person has a certain character and acted in accordance with that character on the occasion charged in the case.”) (citation and punctuation omitted); United States v. Procopio, 88 F3d 21, 29 (III) (1st Cir. 1996) (“If evidence supports a chain of inference independent of any tendency of the evidence to show bad character, it is said to have ‘special relevance’ and not barred by Rule 404.”) (citation 24 As noted above, the State asked the trial court to admit the other-acts evidence pursuant to OCGA § 24-4-404 (b) to show intent, motive, plan, and absence of mistake or accident. With regard to intent, the Supreme Court of Georgia recently explained that a defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying Rule 404 (b) evidence absent affirmative steps by the defendant to remove intent as an issue. Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses. Thus, where the state of mind and punctuation omitted); United States v. Ferrer-Cruz, 899 F2d 135, 137 (2) (1st Cir. 1990) (“[A] trial court can admit . . . evidence of past bad acts only if the evidence survives two related tests. First, it must overcome the absolute bar of Fed. R. Evid. 404 (b), which excludes evidence of a past bad act where it is relevant only because it shows bad character (i.e., the proposed logical inference includes character as a necessary link). Second, it must also survive scrutiny under Fed. R. Evid. 403, which excludes even evidence that is relevant through allowable chains of inference where the probative value of that evidence is substantially outweighed by the risks of prejudice, confusion, or waste of time.”) (citations, punctuation and emphasis omitted); United States v. Rubio-Estrada, 857 F2d 845, 853 (II) (1st Cir. 1988), Torruella, J., dissenting (Rule 404 (b) “admits evidence of other crimes whenever it is relevant without using the inference of character anywhere in the chain of inference. . . . [T]he rule excludes evidence of other crimes in any case in which one of the inferences in the chain of circumstantial evidence is the inference from the act to the defendant’s character or propensity to commit crimes.”) (citations, punctuation, and footnotes omitted). 25 required for the charged and extrinsic offenses is the same, the first prong of the Rule 404 (b) test is satisfied. (Citation and punctuation omitted.) Bradshaw v. State, - Ga. at - (3). We are mindful, however, that the intent exception must not be allowed to swallow the general rule against admission of prior bad acts.25 As we have explained, to determine whether 25 See United States v. Miller, 673 F3d 688, 697 (III) (7th Cir. 2012) (“[I]f a mere claim of innocence were enough to automatically put intent at issue, the resulting exception would swallow the general rule against admission of prior bad acts. . . . [I]dentifying a Rule 404 (b) exception, such as intent, that is ‘at issue’ is only the first step of the analysis.”) (citations omitted); United States v. Matthews, 431 F3d 1296, 1314, n.1 (11th Cir. 2005), Tjoflat, J., specially concurring (Where other-acts evidence “demonstrates nothing more than . . . a prior intention to violate drug laws[,] it must be excluded as inadmissible propensity evidence. If the inferential chain must run through the defendant’s character – and his or her predisposition towards a criminal intent – the evidence is squarely on the propensity side of the elusive line” between evidence admissible to demonstrate intent and inadmissible evidence of propensity.); Paul S. Milich, “The Degrading Character Rule in American Criminal Trials,” 47 Ga. L. Rev. at 796-797 (It is important to protect the presumption of innocence for those with a criminal past, in part, because jurors “are a major check against police and prosecutorial abuse, laziness, and incompetence. Anything that encourages the jury to scrutinize the prosecution’s case carefully and skeptically likewise encourages the police and prosecution to rise to the task. To the extent that evidence of the accused’s bad character makes it easier to convict, it is undesirable for police or prosecutors to factor that advantage into their decisions as to who and how to investigate, arrest, or prosecute.” In addition, the introduction of evidence of past bad acts discourages jurors from erring on the side of acquittal. “This is the heart of the moral-political argument for the character rule: we want jurors, in all cases, to exercise the most heightened scrutiny of the state’s evidence, to give the benefit of the doubt and then some to a fellow citizen who stands in jeopardy of tasting the state’s awesome power to take away that citizen’s liberty. The very idea that we 26 intent is actually in issue in a case, “[t]he test is to ask: under the facts of the case, is there any danger that a rational jury could find that although the defendant committed the objective, charged acts, he did not intend to do so?” (Citation and punctuation omitted.) Chynoweth v. State, - Ga. App. - (3) (768 SE2d 536) (2015). With regard to motive, which “has been defined as the reason that nudges the will and prods the mind to indulge [a] criminal intent[,]”26 other-acts evidence may be admitted to show the defendant’s motive for committing the crime with which he is charged, but such evidence may not be admitted to demonstrate a propensity to act in accordance with the character indicated by that other crime or conduct. . . . [T]he fact that the accused has committed one kind of crime in the past does not, without more, prove his motive to commit the same kind of crime again. Such logic would make all prior robberies admissible in any robbery case, all prior murders admissible in any murder case, and so on. (Citations and punctuation omitted.) Amey v. State, - Ga. App. - (1) (b) (Case No. A14A1803, decided March 18, 2015). For example, evidence that the defendant had been threatened with violence for nonpayment of a debt incurred in a drug transaction neither need nor desire such a vigilant jury when the defendant has a criminal history violates the most basic notions of equal protection.”) (footnotes omitted). 26 (Citation and punctuation omitted.) Bradshaw v. State, - Ga. at - (3). 27 may establish impecuniousness or an imminent financial burden on the defendant as a motive for robbery. Id. In this case, the State’s proffer at the hearing on the other-acts evidence authorized the trial court to find that the jury could only use the evidence to find that Brown and Rouse had intended to deal drugs before and, therefore, the jury could believe they were more likely to have the intent, motive, and plan to deal drugs again. This is precisely the circumstantial chain that is prohibited since all that it proves is that, because there is some evidence that they dealt drugs in the past, they are likely to have committed the present crime. The only logical link between the two allegedly common mental states is the defendants’ alleged propensity towards dealing in drugs. See United States v. Matthews, 431 F3d 1296, 1314, n.1 (11th Cir. 2005), Tjoflat, J., specially concurring; United States v. Rubio-Estrada, 857 F2d at 853 (II), Torruella, J., dissenting. Because the State failed to explain how a jury could find, in light of the prior acts, that it is more likely that the defendants had the intent, motive, or plan to traffick in cocaine and to possess marijuana with intent to distribute without using the inference of character anywhere in the chain of inference, the trial court did not abuse its discretion in ruling that the evidence of past crimes was inadmissible under OCGA § 24-4-404 (b). Amey v. State, - Ga. App. at - (1) (b); Ashley v. State, - Ga. App. - (2) 28 (Case No. A14A1848, decided March 30, 2015) (decided under analogous provisions of the former Evidence Code). See Thompson v. State, - Ga. App. - (1) (Case No. A14A2161, decided March 30, 2015) (A proper application of the abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach, and there will be occasions in which the appellate court will affirm the evidentiary ruling of a trial court even if the appellate court might have ruled otherwise had the admissibility of the evidence been its call to make.) (citation and punctuation omitted); United States v. Wilson, 605 F3d 985, 1023 (VI) (D. C. Cir. 2010) (An appellate court reviews a trial court’s decision whether to admit other-acts evidence “for abuse of discretion” and “give[s] much deference to the [trial] court’s decision.”) (citations and punctuation omitted); United States v. Cassell, 292 F3d 788, 792 (D.C. Cir. 2002) (accord); United States v. Rubio-Estrada, 857 F2d at 846 (I) (“[C]urrent law, as embodied in the Federal Rules of Evidence and numerous precedents interpreting those rules, gives the [trial] court, not [the appellate] court, the power to decide whether or not to admit a [defendant’s] prior conviction.”) (emphasis omitted).27 27 Cf. Bradshaw v. State, - Ga. at - (3) (Where the defendant was charged with murdering a drug buyer who balked at paying for drugs the defendant had delivered, another incident, six months earlier, when the defendant murdered another drug buyer 29 Judgment affirmed in part and reversed in part in Case No. A15A0456. Judgment vacated in Case No. A15A0457. Dillard, J., concurs fully in Divisions 1 and 2, and in judgment only in Division 3. McFadden, J., concurs fully and specially. who refused to pay for drugs his brother had delivered involved the same mental state and showed the defendant’s willingness to use violence when he or someone close to him was cheated in a drug deal. Consequently, the trial court did not abuse its discretion in admitting evidence of the earlier murder for the purpose of showing the defendant’s intent and motive to commit the later crime.); Chynoweth v. State, - Ga. App. at - (3) (Where the defendant was charged with riot in a penal institution and obstruction of a law enforcement officer, based on his attack on two law enforcement officers who were transporting him to a hearing, there was evidence that the defendant had been prescribed antipsychotic medication, and the defendant raised defenses concerning lack of mental capacity and mental illness, there was a disputed issue concerning the defendant’s state of mind and a danger that “a jury could have concluded that[,] while he committed the charged act, he did not intend to do so.” Consequently, the trial court did not abuse its discretion in permitting other-acts evidence of the defendant’s unprovoked attack on a cellmate for the purpose of showing his intent and the absence of mistake or accident.) (citation omitted). 30 A15A0456; A15A0457. THE STATE v. BROWN, et al. DILLARD, Judge, concurring specially. I concur fully as to Divisions 1 and 2 of the majority’s opinion. I concur in judgment only as to Division 3 because I do not agree with all that is said in that division of the majority opinion. Thus, the majority’s opinion in Division 3 decides only the issues presented in that division and may not be cited as binding precedent in future cases. See Court of Appeals Rule 33 (a). A15A0456, A15A0457. THE STATE v. BROWN, et al. MCFADDEN, Judge, concurring. I concur fully in the majority opinion. I write separately to lament the ease with which this spectacle - an unauthorized criminal trial that the prosecutor was compelled to boycott leading to ineffective acquittals that an appellate court must unwind - could have been avoided. When this case was called for trial, the state told the trial court that it had appealed her suppression order. The trial court erroneously replied that the state’s notice of appeal was ineffective. At noon that same day, the state filed an emergency motion with this court. Less than four-and-a-half hours later, we granted the emergency motion and stayed the trial. But by that time, the purported trial had taken place and the purported acquittals had been entered.	{ "pile_set_name": "FreeLaw" }
71 Cal.2d 394 (1969) THE PEOPLE, Plaintiff and Respondent, v. JERRY LEE O'BRIEN, Defendant and Appellant. Crim. No. 12338. Supreme Court of California. In Bank. June 20, 1969. J. Perry Langford, under appointment by the Supreme Court, and Langford, Langford & Lane for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Plaintiff and Respondent. MOSK, J. Defendant was charged by information with the murder of Los Angeles Police Officer David Seibert and with six prior felony convictions. [fn. 1] Motions for change of venue and for suppression of evidence were denied. A jury found defendant guilty of first degree murder and fixed the penalty at death. Motions for new trial and reduction of sentence were denied. This appeal is automatic. (Pen. Code, 1239, subd. (b).) We affirm the judgment as to guilt but, under compulsion of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], we reverse as to penalty. 398 On the morning of August 8, 1967, defendant appeared at a Foods Company market in Los Angeles, before the store had opened for business. He told the manager, Bruce Jessel, that he wanted to pick up a returned check which he had allegedly cashed there. Jessel replied he would have to wait until he received a notice from the bank that the check had been dishonored. Defendant returned about the same time on August 10. He told Jessel he had the necessary notice, but did not produce it. Jessel allowed him to enter, and took him to the cashier. As the two men stood outside the cashier's window, adjacent to the store office, defendant suddenly drew a .45-calibre automatic and told Jessel to open the office door. When Jessel replied that he could not do so because he didn't have the keys, defendant ordered him to open it or he would "put a hole" through him. Mrs. Anderson, the cashier, saw defendant raise the gun to Jessel's head and heard him say words to the effect of "I'll tell you once more and then I'll let you have it." She thereupon pressed a silent alarm, and unlocked the door from the inside. The two men entered the office. Defendant filled a large shopping bag with money from the safe, then stuffed more bills into his pockets. A salesman who came into the office was seized by defendant and told to stand with the others and keep quiet. The telephone rang, and defendant ripped it and a microphone out of the wall. As he left the office defendant said, "If anyone gets in my way, I'll kill 'em." As defendant proceeded towards the checkstand, Police Officer Seibert entered the market. A witness saw defendant crouch, take deliberate aim, and fire a shot; another witness saw the officer fall to the floor. A gun battle ensued, in which Officer Seibert received four bullet wounds; two of these, one in the chest and the other in the back, were fatal. Defendant fled from the store, leaving a trail of money in the parking lot. Jerry Canfield, an employee, was standing by Officer Seibert's patrol car, radioing for help. With "a grin on his face," defendant pointed his gun at Canfield and fired. Canfield dived into the police car, and a second shot rang out, striking the door. Defendant ran to a nearby automobile and drove away. Witnesses noted the description of the car and its license number. The car was subsequently found at an apartment house where defendant lived under the name of Martin Sykes. He had bought the car under that name on August 4, and on 399 August 9 had been seen cleaning it. His fingerprint was found on a flashlight in the glove compartment. Two weeks later defendant was taken into custody in Utah. A highway patrolman found him lying unconscious by the roadside, near a car that had apparently been demolished in an accident. A wallet containing identification in the name of Martin Sykes and several thousand dollars was recovered at the scene. At the trial, Jessel, Canfield, Mrs. Anderson, and a number of other eyewitnesses unequivocally identified defendant as the perpetrator of the robbery-murder. No defense was offered on the issue of guilt. [1a] We begin with defendant's contention that under the standard adopted in Maine v. Superior Court (1968) 68 Cal.2d 375 [66 Cal.Rptr. 724, 438 P.2d 372], the trial court assertedly erred in denying a pretrial motion for change of venue. The motion was predicated on dissemination of news reports on the case by two large metropolitan newspapers, by a smaller local newspaper, and by a radio station and several television stations. The contents of the reports included the particulars of the robbery and the shooting, the identification, apprehension, and charging of defendant as the alleged culprit, and references to defendant's prior record. Defendant contends that the publicity generated by these reports made it impossible for him to receive a "fair and impartial trial ... in the county." (Pen. Code, 1033.) The trial court reviewed the material in question and concluded, "The Court feels that the news releases, whether radio or television or the newspapers, were of short duration. The Court doesn't feel that, well, for example, they're inflammatory in any sense of the word. The Court at this time is going to deny the motion for change of venue." Defendant did not seek immediate relief by writ of mandate, but renewed the motion during the voir dire of the veniremen and after the trial jury was sworn; on each occasion the motion was denied. [fn. 2]400 [2] Defendant now takes the position that "The issue here is not whether the publicity was inflammatory, nor even whether the populace was inflamed. The question, rather, is whether the publicity, by its inflammatory nature, by the information it conveyed, or for any other reason, created a reasonable likelihood that in the absence of a change of venue a fair trial could not be had." But the "reasonable likelihood" standard was not the law of this state until our decision in Maine, and we expressly declared that decision to be prospective only: "The standard discussed herein will be applied on direct review in all cases which have not proceeded to trial at the date this opinion becomes final." (68 Cal.2d at p. 384 fn. 9.) As defendant concedes, by that date the trial in the case at bar had both begun and ended. [3] Yet we also stated in Maine (id at p. 382) that since the decision of the United States Supreme Court in Sheppard v. Maxwell (1966) 384 U.S. 333, 362 [16 L.Ed.2d 600, 620, 86 S.Ct. 1507], "appellate courts must, when their aid is properly invoked, satisfy themselves de novo on all the exhibits and affidavits that every defendant obtains a fair and impartial trial." We therefore undertake an independent evaluation of the circumstances which, defendant claims, resulted in denying him a "fair and impartial trial" within the meaning of section 1033. [fn. 3] [1b] The record discloses that the venue of this offense lay in Los Angeles County, the most populous in the state; even the particular superior court district in which the trial was held is of substantial size, comprising a number of distinct communities. [fn. 4] With the sole exception of the local newspaper involved (The Daily Breeze), the pretrial press and broadcast 401 coverage of the case was largely limited to ordinary news reports of the shooting in mid-August 1967, the arrest of defendant two weeks later, and the filing of charges against him in September. The Daily Breeze continued its coverage into October, but thereafter printed only one item a month on the case, the last being on January 6, 1968. Voir dire of the jury did not begin until February 7, 1968, and it is apparent that the story had long since ceased to be newsworthy. The voir dire examination revealed that the jurors selected to serve either had no knowledge of the incident at all or a memory of it so dim as to be negligible. The defense accepted the jury as constituted, and did not exhaust its peremptory challenges. The factual distinctions between the present case and Maine (see, e.g., 68 Cal.2d at p. 388) are so clear as to require no further elucidation. After an examination de novo of the record, we are satisfied that the pretrial publicity in this case did not deprive defendant of a fair and impartial trial. Defendant next complains that his right to be secure against unreasonable searches and seizures was violated by the introduction in evidence of a certain yellowish-brown suit of clothes. The officer who took defendant into custody observed the suit in the back seat of defendant's wrecked car at the time of the arrest, but did not actually take possession of it until several hours later, after defendant had been removed to a hospital and the car had been towed to a service station. At trial a number of witnesses identified the suit as being or resembling the one worn by defendant when he committed the robbery-murder here charged. [4a] As will appear, we conclude from the relevant portions of the record that defendant through his trial counsel made and adhered to a tactical decision not to challenge the admissibility of this particular piece of evidence.prior to trial, it is true, defendant moved for return of property or suppression of evidence pursuant to Penal Code section 1538.5. [5] Subdivision (a) of the statute, however, contemplates that the moving defendant shall have the burden of identifying the "tangible or intangible thing" he seeks to suppress. Thus it has been held that where "the notice of motion did not specify that it was directed to [certain] evidence, the reasonable conclusion is that such physical evidence was not the object of defendant's attack in presenting his motion." (People v. Rose (1968) 267 Cal.App.2d 648, 651-652 [73 Cal.Rptr. 349].) Here the motion was apparently made 402 orally, and the record contains no such notice. In appropriate circumstances, this burden can also be discharged by a collective reference to all property of the defendant seized in a single specified search; a ruling on the legality of that search will be deemed to encompass each piece of evidence seized therein. [4b] But in the case at hand defendant sought to suppress items seized not in one search but at different times and places: i.e., outside his car at the time of arrest (the contents of his wallet) and inside his car after it had been towed to the service station (a set of master car keys). The mere fact that defendant made such a motion, therefore, does not enlighten us as to its scope. It follows that we are remitted to the transcript of the hearing itself. The clothing now challenged was mentioned in the testimony of the arresting officer, who described when and where he observed it and took it into his possession. Nevertheless, this clothing was not among the almost one dozen pieces of evidence offered and ruled upon at the close of the hearing. Counsel on appeal who did not represent defendant at trial, suggests that the clothing was not offered "presumably" because it had not been physically brought into court as an exhibit, and that the latter course had not been followed "because it had been received in evidence at the preliminary examination, [and therefore] its production at the suppression hearing was inconvenient." These considerations are not persuasive. [6] Items of evidence received at a preliminary examination can always be produced, if relevant, at the hearing on a motion to suppress. [7] Moreover, as defendant urges, the physical production of evidence at the suppression hearing is not a prerequisite to a ruling on its admissibility; failure to produce an item of evidence, accordingly, is no excuse for failure to request such a ruling with respect to that item. [4c] Nor can defendant now rely on an opening remark by the prosecutor that the search in question resulted in "the only physical evidence that will be presented at a trial in the future"; the burden of identifying the specific evidence sought to be suppressed remained on defendant, who should himself have raised the issue of the admissibility of the clothing if he desired to challenge it. That he did not desire to do so became crystal clear at trial. [8] We do not imply that a defendant who has unsuccessfully moved to suppress a certain item of evidence prior to trial must, in order to preserve his right to complain of the matter on appeal, renew his challenge thereto when 403 that item is subsequently offered at trial. The statute is explicit on this point, declaring in subdivision (m) that "The proceedings provided for in this section [and other sections not here relevant] ... shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure. ..." Indeed, contrary to the apparent understanding of the parties below, we construe the statute to prohibit the renewal of such a motion at trial if it has previously been made in pretrial proceedings. Subdivision (h) provides that "If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial in the municipal, justice or superior court. Furthermore, the court in its discretion may entertain the motion during the course of the trial." By contrast, subdivision (i) expressly grants a defendant the right to "renew or make" the motion at a special hearing even though he may already have so moved at his preliminary examination (see subd. (f)). By omitting the word "renew" from subdivision (h), the Legislature must have intended to limit the operation of that provision to instances in which the motion is "made" or "entertained" for the first time at trial. (Cf. Gomes v. Superior Court (1969) 272 Cal.App.2d 702, 706, fn. 9 [77 Cal.Rptr. 539].) [4d] As we stated above, however, defendant has not shown that the clothing in question was a subject of the pretrial suppression hearing. Although piecemeal presentation of such a motion is ordinarily to be discouraged, defendant could therefore have moved for suppression or return of the clothing during the course of trial if he otherwise qualified to do so under the provision of subdivision (h). [9] But the record admits of no doubt as to defendant's intent in this regard: when the clothing was formally offered in evidence at the close of the People's case the prosecutor asked defense counsel if he wanted to "renew" his objection thereto, [fn. 5] and the latter replied, "I didn't have any objection to that." Counsel on appeal speculates that defense counsel declined to 404 object because he believed it either futile or unnecessary to do so in view of the denial of the pretrial motion to suppress; again the record is to the contrary, for counsel did "renew" his objection to the admission of other evidence--i.e., the contents of his wallet--that had specifically been ruled on by the court at the special hearing. [4e] Subdivision (m) declares further that review on appeal of the validity of a search and seizure may be obtained by the defendant "providing that at some state of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence." We conclude that defendant in the case at bar did not so move with respect to the clothing now challenged, either before or during trial, and hence that he may not raise the matter for the first time on appeal. [10] Defendant charges that the prosecutor was guilty of prejudicial misconduct in calling the victim's widow, Mrs. Seibert, as a witness during the guilt phase. He argues that her testimony "added nothing to the prosecution case" and that her crying on the stand "tended to inflame the passions of the jury" against him. The contention is not persuasive. The witness testified that she last saw the victim on the night before the shooting, and that he appeared to be well at the time. She also identified a photograph of the victim, which was subsequently admitted in evidence. These matters are relevant in a murder trial even though other witnesses may testify to similar effect, and there can be no question of the competence of this witness. As to the charge of prejudice, the record reveals that defendant's trial counsel--who was best able to appraise any such danger--made no objection to Mrs. Seibert's taking the stand or to any question she was asked. Counsel on appeal again speculates that trial counsel's failure to do so was motivated by a feeling of "futility" and a fear of "further inflaming the passions" of the jury. But had counsel in fact desired to make an objection, he could easily have done so out of the jurors' hearing. Mrs. Seibert's testimony was extremely brief, and it appears that trial counsel simply considered the matter too trivial to warrant interruption of the proceedings. We note, finally, that in the instructions on the guilt phase the court forbade the jurors to be governed by either sympathy, passion, or prejudice. [11] Under compulsion of Witherspoon v. Illinois (1968) supra, 391 U.S. 510, however, defendant must be accorded a 405 new penalty trial. During the voir dire examination [fn. 6] prospective juror Voznak stated that he would be "prejudiced" in favor of defendant "capital-punishmentwise." Defense counsel then put an elaborate hypothetical case to him, involving a murder for hire of a President of the United States and his entire family, and asked if the venireman would be able to participate in the death penalty verdict "under those circumstances." Mr. Voznak replied, "No. I don't see what the point would be." Without further inquiry, he was immediately excused for cause on a challenge by the prosecution. This rather cryptic sequence of questions did not result in making it "unmistakably clear" that the venireman "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before [him]. ..." (Witherspoon v. Illinois, supra, 391 U.S. at p. 522, fn. 21 [20 L.Ed2d at p. 784].) Accordingly, the exclusion of Mr. Voznak from the jury must be deemed constitutionally impermissible. [12] The Attorney General seeks to show compliance with the Witherspoon standard by arguing that if in the "extreme situation" hypothesized by counsel Mr. Voznak "would be precluded from participating in a capital verdict, he would be precluded in less extreme cases, including the present wherein there was but one victim." Such speculation, however, was foreseen by the Witherspoon court, and expressly rejected in its opinion: after holding that a death sentence cannot be carried out if the jury imposing it was chosen by excluding veniremen because they expressed general objections to or conscientious scruples against the death penalty, the high court explained (ibid): "Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment." (Italics added.) [13] We reach one other issue that may arise on retrial. There was no error in allowing the prosecution to prove, among other prior crimes committed by defendant, that he was guilty of escape from a correctional institution. Defendant asserts that such evidence may divert the attention of the jurors from the issue at hand to an inquiry into the ability of the Department of Corrections to prevent escapes by persons *406 in its custody. This appears to be an unlikely possibility, and in any event is one which the trial court can forestall by the exercise of its discretion over the introduction of collateral matters and by appropriate instructions. The judgment is reversed insofar as it relates to penalty. In all other respects it is affirmed. Traynor, C. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred. McCOMB, J. I would affirm the judgment in its entirety. NOTES [fn. 1] 1. The allegations of prior convictions were withdrawn by the prosecution before the case went to the jury on the issue of guilt. During the penalty phase the prosecution introduced documentary proof of such priors, as well as evidence of other, more recent felonies of which defendant had not been convicted. [fn. 2] 2. In so doing, the trial court reasoned as follows: "For the record, the Court feels that the original motion for change of venue, when I denied it I thought that frankly the publicity, regardless of news media, was not prolonged or inflammatory, and the Court is most satisfied with its first ruling after listening to the various respective jurors indicating their knowledge of the particular offense. And with some exception most of it has been extremely sketchy as far as the jurors are concerned. The Court, frankly, was pleased in the voir dire of the prospective jurors that the knowledge of the particular matter before the court was so sketchy so that I'm more than satisfied that we're getting a fair and impartial jury." [fn. 3] 3. Defendant combines our recognition of the relevance of Sheppard in this respect with our later observation (68 Cal.2d at p. 383) that the "reasonable likelihood" standard "is fashioned on those suggested by the United States Supreme Court in Sheppard v. Maxwell"; from this premise defendant concludes that the standard is applicable in California since the date of Sheppard (June 6, 1966), despite our express language to the contrary in Maine. The argument is untenable. As we pointed out in Maine (ibid), "the Supreme Court explicitly declined to rest its reversal in Sheppard on the pretrial publicity. ..." Although the Sheppard opinion may well have contributed to the formulation of the "reasonable likelihood" standard, we adopted that standard in Maine not as a constitutional imperative but as an act of judicial administration. (Id at p. 384.) Accordingly, we were free to determine, for reasons of policy, that it would not take effect in California until the date of our decision. [fn. 4] 4. The current population of the district is approximately 1,000,000, and that of the largest community, Torrance, is approximately 140,000. By way of comparison, the community involved in the Maine case, Ukiah, had a 1960 population of only 9,900, and that of the entire County of Mendocino is 51,200. [fn. 5] 5. Although the statute contemplates that the issue will be raised by motion, a defendant who does so by the traditional procedure of objecting to the admission of the evidence on Fourth Amendment grounds should not be penalized merely for using the wrong words; such an objection, rather, should be construed whenever possible as a motion under subdivision (h). [fn. 6] 6. We recognize that the trial in this case took place several months before Witherspoon was decided.	{ "pile_set_name": "FreeLaw" }
Case: 14-10577 Document: 00512986177 Page: 1 Date Filed: 03/30/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 14-10577 FILED Summary Calendar March 30, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DONNA JEAN CANNON, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:11-CR-36-4 Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Donna Jean Cannon was convicted of possessing stolen mail in violation of 18 U.S.C. § 1708. She was sentenced to 16 months of imprisonment and three years of supervised release. While on supervised release, Cannon tested positive for methamphetamine use; failed to attend scheduled substance abuse counseling, submit required urine samples, report to the probation office, and inform probation of a change in her residence; and impeded probation’s ability * 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: 14-10577 Document: 00512986177 Page: 2 Date Filed: 03/30/2015 No. 14-10577 to randomly check her residence for contraband. The district court revoked her supervised release and sentenced her to 18 months of imprisonment. Cannon appeals her 18-month sentence, arguing that it was unreasonable because it failed to account for her battle with drug addiction and her admission to having a drug problem. Because Cannon failed to alert the district court to the specific alleged error she raises on appeal, we review for plain error only. See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). To show plain error, Cannon must show a forfeited error that is clear or obvious and that affects her substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If she makes such a showing, the court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Cannon fails to make the required showing, given that she pleaded true to violating the conditions of her release, her sentence fell within the statutory maximum sentence she could receive upon revocation of her supervised release, and the district court considered relevant 18 U.S.C. § 3553(a) factors appropriate to fashioning a revocation sentence. See United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011); United States v. Whitelaw, 580 F.3d 256, 261, 265 (5th Cir. 2009); 18 U.S.C. §§ 1708, 3583(e)(3). AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
166 Cal.App.3d 118 (1985) 212 Cal. Rptr. 313 WILLIAM B. SHAMBLIN et al., Plaintiffs and Appellants, v. DON L. BERGE et al., Defendants and Appellants. Docket No. E000366. Court of Appeals of California, Fourth District, Division Two. March 26, 1985. 120 COUNSEL Buzard, Larson & McIntyre and Jeffrey C. McIntyre for Plaintiffs and Appellants. Butterwick, Bright & Cunnison and J.D. Butterwick for Defendants and Appellants. [Opinion certified for partial publication.[]] OPINION RICKLES, J. While acting as real estate agents for plaintiffs William and Grace Shamblin, defendants Don and Betty Berge engaged in the conduct which gave rise to this controversy. Both parties appeal from portions of the judgment rendered below raising the contentions herein discussed. FACTS In June of 1973, plaintiffs obtained a loan from the Kissell Company (hereinafter Kissell) for the purpose of constructing a townhouse development 121 in the City of Riverside. The loan matured in December of 1974 and Kissell demanded full payment. When plaintiffs were unable to comply, Kissell filed a judicial foreclosure action in February of 1975 and concurrently obtained an ex parte order appointing a receiver to take possession of the development. The receiver's appointment was confirmed in July of 1975, and plaintiffs were found in contempt of court for willfully refusing to deliver possession. In September of 1975, before the foreclosure sale, plaintiffs accepted a settlement offer whereby Kissell was awarded title to 32 completed units and plaintiffs were awarded title to 63 manufactured lots. This acceptance was formalized in October of 1975 and the foreclosure action dismissed. One month later, the receivership was terminated and the receiver discharged. Sometime after the receiver's ex parte appointment but before his confirmation, plaintiffs obtained deposits on two units from Leo and Marjorie DeLage.[1] Shortly thereafter, in May of 1975, defendants approached plaintiffs and indicated that they desired to act as real estate agents for the development despite the pending foreclosure action. Defendants were subsequently given the exclusive right to sell units commencing June 1, 1975, but failed to consummate any sales. To make matters worse, defendants began warning the DeLages to rescind their agreements and withdraw their deposits because plaintiffs were in financial trouble. They also began advising the DeLages that a purchase of the same units could be arranged directly from Kissell for a substantially lower price. Each time the DeLages visited the development, defendants repeated these warnings and advisements. Eventually, the DeLages withdrew the money they had deposited with plaintiffs and agreed to purchase from Kissell. The new purchase agreement was prepared by defendants. When plaintiffs were apprised of defendants' actions, they filed a complaint alleging breach of fiduciary duty (first cause of action), fraud (second cause of action), breach of contract (fourth cause of action), interference with a contractual relationship (fifth cause of action), and slander (seventh cause of action)[2] A jury returned special verdicts on each cause of action determining therein that defendants had breached a fiduciary duty, but in so doing had not caused injury to plaintiffs; that defendants had not defrauded plaintiffs; that defendants had breached a contract, but in so doing had not caused damage to plaintiffs; that defendants had interfered with a contractual relationship causing plaintiffs to suffer a $28,000 loss; and that defendants had not slandered plaintiffs. The jury also awarded $2,500 in punitive damages on the basis of defendants' interference. 122 Defendants appeal from the verdict rendered in the fifth cause of action, contending: (1) the trial court erred in delivering a special liability instruction, (2) at least two jury findings are not supported by sufficient evidence, and (3) the existence of the receivership and contempt decree compel reversal. Plaintiffs cross-appeal from the verdicts rendered in the remaining causes of action, contending: (1) the trial court erred in admitting evidence of the receivership and contempt decree; (2) the trial court erred in refusing to deliver five special instructions which would have apprised the jury of damages recoverable for breach of fiduciary duty; and (3) several jury findings are inconsistent. APPEAL I Defendants first contend that the trial court erred in delivering special instruction No. 15 because it enabled the jury to find liability on a theory which was inconsistent with the pleadings and proof.[3] Stated more precisely, they assert that although plaintiffs pleaded and proved a cause of action for inducement to breach a contract or interference with a contractual relationship, the special instruction set forth the elements of a cause of action for interference with prospective economic advantage. We disagree, but before addressing the substantive issue seek to put to rest semantic confusion spawned by cases of this nature. (1) Inducement to breach a contract, interference with a contractual relationship, and interference with a prospective economic advantage are separate theories upon which the tort of interference with economic relations may be based. (See Builders Corporation of America v. United States (N.D.Cal. 1957) 148 F. Supp. 482, 484, fn. 1, revd. on other grounds (9th Cir.1958) 259 F.2d 766.) (2) The first theory protects against intentional acts designed to produce an actual breach and requires that a plaintiff prove: 123 "(1) he had a valid and existing contract [with a third party]; (2) ... defendant had knowledge of the contract and intended to induce its breach; (3) the contract was in fact breached by the contracting party; (4) the breach was caused by ... defendant's unjustified or wrongful conduct; and (5) ... damage[s] [were suffered as a result]." (Dryden v. Tri-Valley Growers (1977) 65 Cal. App.3d 990, 995 [135 Cal. Rptr. 720]; italics omitted.) (3) The second theory is slightly broader in that it protects against intentional acts not necessarily resulting in a breach. (Manor Investment Co. v. F.W. Woolworth, Inc. (1984) 159 Cal. App.3d 586, 593 [206 Cal. Rptr. 37], fn. 3; Rest.2d Torts, § 766, com. K, at pp. 12-13; Prosser, Torts (5th ed. 1984) § 129, pp. 991-992.) It requires that a plaintiff prove: (1) he had a valid and existing contract with a third party; (2) defendant had knowledge of this contract; (3) defendant committed intentional and unjustified acts designed to interfere with or disrupt the contract; (4) actual interference with or disruption of the relationship; and (5) resulting damages. (See Manor Investment Co. v. F.W. Woolworth, Inc., supra, 159 Cal. App.3d at 593, fn. 3; Carpenter, Interference With Contract Relations (1928) 41 Harv. L. Rev. 728, 732-742.) (4) The third theory is still broader in that it protects against intentional acts designed to harm an economic relationship which is likely to produce economic benefit. It requires that a plaintiff prove: (1) he had an economic relationship with a third party containing the probability of a future economic benefit; (2) defendant had knowledge of this relationship; (3) defendant committed intentional and unjustified acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) resulting damages. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827 [122 Cal. Rptr. 745, 537 P.2d 865].) (5a) Turning now to the issue at hand, we note that plaintiffs expressly pleaded the theory of interference with a contractual relationship in their complaint and proved a cause of action for interference with economic relations in accordance with this theory at trial. The question, of course, remains, "Did Special Instruction No. 15 accurately apprise the jury of the elements of interference with a contractual relationship?" We think not. Pursuant to this instruction, the jury was informed that plaintiffs had to prove the existence of a contractual relationship with a third party containing the probability of future economic benefit. (See, supra, fn. 3.) Because future economic benefit is an element of interference with prospective economic advantage, special instruction No. 15 is, as defendants have suggested, at least partially inconsistent with the pleadings and the proof. The jury should instead have been instructed that plaintiffs could not recover for contractual interference absent proof of a valid and existing contact with a third party. Such inconsistency does not, however, automatically compel reversal. It must appear reasonably probable that, absent the error, the jury would have returned a verdict in defendants' favor. (Solgaard v. Guy F. 124 Atkinson Co. (1971) 6 Cal.3d 361, 370-371 [99 Cal. Rptr. 29, 491 P.2d 821]; Bolen v. Woo (1979) 96 Cal. App.3d 944, 951 [158 Cal. Rptr. 454]. See also Safirstein v. Nunes (1966) 241 Cal. App.2d 416, 421-423 [50 Cal. Rptr. 642]; Persike v. Gray (1963) 215 Cal. App.2d 816, 822 [30 Cal. Rptr. 603].) No such probability appears in this instance. The existence of a contract or contracts between plaintiffs and the DeLages was established by overwhelming evidence at trial and is conceded by defendants in this appeal. (See Appellants' Opening Brief p. 12.) The validity of that contract or contracts was likewise established despite defendants' assertions to the contrary. (6) For purposes of proving interference with a contractual relationship, a contract is valid if it is not illegal, opposed to public policy, or otherwise void. (Prosser, Torts (5th ed. 1984) § 129, pp. 994-995. See also Rest.2d, Torts, § 766, com. f., at p. 10.) Even voidable contracts qualify under this standard. (Buckaloo v. Johnson, supra, 14 Cal.3d at 822; Zimmerman v. Bank of America (1961) 191 Cal. App.2d 55, 57-58 [12 Cal. Rptr. 319].) (5b) Bearing these principles in mind, even if we accept defendants' position that a sale of real property under receivership is void, it does not follow that a contract for the sale of such property must be similarly characterized. At most, the receivership rendered the contract or contracts voidable at the option of the parties or the court. Accordingly had the jury been properly instructed, the same result would have been compelled by law. No prejudice appears and hence no reversal is required.[4] II[] .... .... .... .... .... .... . Judgment affirmed. Kaufman, Acting P.J., and McDaniel, J., concurred. NOTES [] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II and III of the Appeal, and parts I, II, and III of the Cross-appeal. [1] These units were among the 32 awarded to Kissell upon settlement. [2] The complaint also alleged three additional causes of action, but these were dismissed at the time of trial. [3] Special instruction No. 15 provides: "In this action plaintiffs seek to recover damages they claim they sustained as a result of the alleged action on the part of the defendants in interfering with a contractual relationship between plaintiffs and a third party. "A plaintiff is entitled to recover damages for any harm which results when one who, without a privilege to do so, engages in intentional acts designed to disrupt the contractual relationship. "In order to recover damages for interference a plaintiff must prove that: "1. The plaintiff and the third person had a contractual relationship containing the probability of future economic benefit to plaintiff. "2. The defendant had knowledge of the contractual relationship. "3. Unjustified and/or unprivileged [i]ntentional acts on the part of the defendant designed to disrupt the relationship. "4. Actual disruption of the relationship. "5. Damages to the plaintiff proximately caused by the acts of the defendant." [4] In so deciding, we simultaneously reject defendants' related argument that the complaint did not state facts sufficient to constitute a cause of action for interference with a contractual relationship. While defendants accurately assert that plaintiffs did not allege a breach of contract, such a breach is not, as we discussed above, a necessary element of that theory. [*] Parts II and III of Appeal, and Parts I, II, and III of Cross-appeal are not certified for publication.	{ "pile_set_name": "FreeLaw" }
259 F.2d 59 Frank P. SALISBURY, Appellant,v.Arnold TIBBETTS and George Sanford, Appellees. No. 5809. United States Court of Appeals Tenth Circuit. August 15, 1958. Edward W. Clyde, Salt Lake City, Utah (J. Grant Iverson, Salt Lake City, Utah, on the brief), for appellant. Eli A. Weston, Boise, Idaho (Fabian, Clendenin, Moffat & Mabey, Salt Lake City, Utah, on the brief), for appellees. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. PHILLIPS, Circuit Judge. 1 Salisbury has appealed from a judgment decreeing that Tibbetts and Sanford were each entitled to acquire by purchase 600 shares of the voting stock of the Reliance National Life Insurance Company;1 ordering Salisbury to forthwith deposit with the clerk of the court such 1,200 shares of stock; ordering that Tibbetts and Sanford might purchase such stock upon the payment of the purchase price within 30 days from the delivery thereof to the clerk; and further decreeing that in the event of the failure of Salisbury to deposit such stock with the clerk, he should pay Tibbetts and Sanford $200,000, with interest from the date of judgment. 2 The controversy between the parties had its genesis in the circumstances which surrounded the promotion and organization of the Reliance Company. Salisbury, immediately prior to September, 1953, was employed by the Professional & Business Men's Insurance Company2 as an agency supervisor and he was a member of the board of directors of the Professional Company. In September, 1953, he was discharged as agency supervisor. At the time of such discharge Sanford was employed by the Professional Company and was working under Salisbury's supervision. Sanford testified that in a conversation he had shortly after such discharge, he suggested that they should organize a new life insurance company of their own and that Salisbury approved the idea. Sanford admitted there was no definite plan agreed upon, or any decision reached as to who would organize the company. Thereafter, at the request of Salisbury, Sanford contacted various insurance men in the western states in an effort to interest them in organizing a new insurance company, but with no definitive results. 3 Salisbury owned 550 shares of the Professional Company stock when he was discharged by that company, a portion of which he desired to sell. An arrangement was entered into between Salisbury and Sanford, whereby the latter was to sell a portion of such stock and from the proceeds realized from such sales, Salisbury was to receive $35 per share and Sanford was to retain any excess over that amount which he obtained. Sanford went to the State of Washington, where he enlisted the aid of Tibbetts in selling such stock. They sold a large portion of the stock within approximately a two-month period, at an average price of $70 per share, out of which they received $12,000. Other shares of such stock were sold through other agents, under a similar arrangement. 4 After further informal discussion among Salisbury, Sanford and other prospective promoters, a plan was evolved for the organization of an insurance company, with an organizational structure patterned after the Professional Company. However, no agreement was reached as to who should participate in the promotion and organization of the company. 5 In January, 1954, Salisbury established an office in Salt Lake City. He obtained legal counsel, arranged for reinsurance contracts with other insurance companies, and began the formation of an insurance company office staff. On January 26, 1954, Salisbury proceeded to effectuate the incorporation of the Reliance Company, with authority to issue two classes of stock, namely, 2,500 shares of voting common stock and 15,000 shares of non-voting preferred stock. 6 It was contemplated that the non-voting stock would be sold to the public and Salisbury obtained the necessary permits for the sale of the non-voting stock to the public in Utah, Nevada and Idaho. 7 On February 17, 1954, Sanford and Tibbetts arrived in Salt Lake City and went to Salisbury's office. Salisbury showed them the Reliance Company's offering circular and they became cognizant of its contents. The circular recited that of the authorized 2,500 shares of voting stock, 1,900 shares had been subscribed; that 600 shares had been issued to Salisbury; 600 shares to Edith G. Amos, Salisbury's sister; 100 shares to Ella S. Salisbury, Salisbury's wife; 200 shares each to Robert H. Petersen, Mark A. Stokes and Ray Smith, and that 600 shares remained in the treasury. 8 Sanford testified that he objected to the distribution which had been made of the voting stock and inquired, "* * * Where do I come in?" and Salisbury said, "Well, you don't have to worry about that. The law required me to have all the voting stock sold or I couldn't get a solicitation permit. Now, there is your solicitation permit. You don't have to worry about that. Our agreement is on. We will go out and get this job done and get the stock sold, and when we get our charter and we hold our first board of directors meeting you will be put on as the officer according to our agreement, and on the board of directors and then you can buy your stock." Sanford admitted, however, that there was no agreement as to the amount of stock that he and Tibbetts would be permitted to buy. 9 Sanford testified that shortly thereafter Salisbury learned that certain persons with whom he had been negotiating had decided not to join with him in developing the Reliance Company and that in the presence of Petersen and Tibbetts Salisbury stated: "Well, * * , the four of us can do the job. The four of us will do the job and the four of us will own and run this company." Tibbetts testified to substantially the same effect. Sanford further testified it was then "I knew that it was a four-way proposition, or I thought it would be a four-way proposition." Here again, it will be observed, there was no agreement as to the amount of the voting stock each might acquire. Salisbury denied the testimony of Sanford and Tibbetts, upon which they predicate their claim, that there was an agreement between them and Salisbury for the purchase by them of voting stock. Petersen testified that he never heard either Sanford or Tibbetts make any protest or objection to the amount of stock purchased by Salisbury or his family and in other respects Petersen fully corroborated Salisbury's testimony. 10 Sanford and Tibbetts engaged in the sale of the non-voting stock. They received a commission of 12½ per cent on all sales. Sanford testified that they sold 60 to 70 per cent of the non-voting stock. When the Reliance Company received $125,000 from the sale of non-voting stock, it became authorized to commence the writing of insurance. 11 On August 30, 1954, Sanford and Tibbetts met with Salisbury in his office in Salt Lake City. Sanford and Tibbetts demanded that Salisbury sell to each of them 600 shares of the voting stock. Salisbury refused, telling them that such a demand was ridiculous. The dispute became heated and Sanford and Tibbetts left Salisbury's office. They returned again and after further discussion Salisbury offered to sell each of them 100 shares of the voting stock at $10 per share. Sanford and Tibbetts accepted the offer. Sanford testified that Salisbury made it clear that so far as he was concerned, that was the most that either of them would receive. Sanford and Tibbetts gave promissory notes to Salisbury for the purchase price, plus some other debts that they owed Salisbury. The notes were later paid and Sanford and Tibbetts each received 100 shares of the voting stock. 12 Sanford and Tibbetts continued selling insurance for the Reliance Company. Further disagreements developed and in September, 1956, Salisbury discharged them as agents of the Reliance Company. They commenced the instant action February 15, 1957. 13 The trial court found that two oral agreements were entered into between the parties; one, to organize and incorporate an insurance company; and two, a later agreement that Salisbury would be president of the corporation; that Petersen, Sanford and Tibbetts would be on the board of directors; that "the division and ownership of the property was to be on a one-fourth basis with one-fourth interest in the voting and controlling stock of the company to be in each of the individuals present at the meeting: Tibbetts, Sanford, Salisbury and Petersen;" that contrary "to the terms of the agreement and in an effort to defraud" Sanford and Tibbetts, Salisbury "obtained control of the majority of the voting stock" and refused to comply with the terms of the agreement. The trial court then concluded, as a matter of law, that Salisbury, "contrary to the provisions of said agreement, purchased approximately 1,900 shares * * in his own or his family's name, thereby establishing a constructive trust under which the Defendant [Salisbury] became trustee for the benefit of the Plaintiffs [Sanford and Tibbetts] for the one-fourth share each * * *"; that one-fourth interest was to be 600 shares of the voting stock; and, accordingly, entered judgment as above stated. 14 We are of the opinion that the evidence and the inferences that may fairly be drawn therefrom, viewed in the light most favorable to Sanford and Tibbetts, do not support the finding of the trial court as to the second oral agreement with respect to the division of the voting stock among Sanford, Tibbetts, Petersen and Salisbury. Certainly, the evidence wholly failed to establish any understanding or agreement at any time as to any amount of the voting stock which Sanford and Tibbetts would be permitted to purchase. Therefore, one term essential to a definite and complete contract was lacking. A contract that is incomplete or indefinite in its material terms will not be specifically enforced in equity.3 15 Salisbury provided all of the initial capital. He looked after all the details of the organization and incorporation of the Reliance Company; organized an office staff; arranged for reinsurance agreements; secured necessary selling permits; and took care of the initial expenses. It is true that the services of Sanford and Tibbetts in selling a portion of Salisbury's stock in the Professional Company and a portion of the non-voting stock of the Reliance Company were important, but they were fully compensated for those services. Under the circumstances, it would seem exceedingly doubtful that Salisbury would surrender a controlling interest in the voting stock of the corporation to third persons. 16 A constructive trust must be established by evidence which is clear, definite, unequivocal, and satisfactory;4 which leaves no reasonable doubt as to the existence of the trust.5 The evidence on the present record, far from meeting those standards, is at best slight, contradictory, and loosely circumstantial, consisting of the uncorroborated testimony of two interested parties, indefinite as to substance, imaginative as to fact and precatory as to meaning. 17 A careful examination of the entire evidence leaves us with the definite and firm conviction that there is no substantial basis for the court's finding that Sanford, Tibbetts and Petersen entered into an agreement on September 17, 1954, or at any time, whereby Sanford, Tibbetts and Petersen were each to receive 600 shares, or any number of shares of the voting stock, and that such finding is clearly erroneous.6 18 Moreover, we are of the opinion that Sanford and Tibbetts are foreclosed as to their alleged claim against Salisbury by an accord and satisfaction, or a compromise of a disputed claim. 19 The general rule established by many of the adjudicated cases and followed in Utah is that a discharge by accord and satisfaction must rest upon a contract, express or implied, and the essentials to a valid contract generally must be present, that is, "(1) A proper subject matter, (2) competent parties, (3) an assent or meeting of the minds of the parties, and (4) a consideration."7 20 In Sullivan v. Beneficial Life Ins. Co., 91 Utah 405, 64 P.2d 351, 362, the court defined accord and satisfaction as follows: 21 "The definition of an `accord and satisfaction' is: `An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim, liquidated or in dispute and arising either from contract or from tort, something other than or different from what he is or considers himself entitled to. And a satisfaction is the execution of such agreement.'"8 22 The evidence clearly established that Sanford and Tibbetts asserted that they were entitled to receive and demanded 1,200 shares of the voting stock. Salisbury denied that they were so entitled and stated that their demand was ridiculous. Even if we assume, although we have decided otherwise, that the inferences which the trial court drew from the conversations between the parties were permissible, there can be no doubt that such conversations fully warranted a good faith denial by Salisbury of the claims asserted by Sanford and Tibbetts. The evidence established a bona fide dispute between the parties. Salisbury made an unequivocal offer to settle the dispute by selling to Sanford and Tibbetts 100 shares each of the voting stock at $10 per share. Sanford and Tibbetts unequivocally accepted such offer. The compromise agreement was carried out and thereupon there was an accord and satisfaction. 23 Sanford and Tibbetts assert that the principles of accord and satisfaction are inapplicable where the relationship of the parties is trustee and beneficiary. They cite no authority in support of that proposition. 24 We express no opinion as to whether the contention would have validity if an express trust were present. We entertain no doubt that where one party asserts a claim predicated on facts, which, if true, would give rise to a constructive trust and the other party disputes the facts and denies the claim and a bona fide dispute is present, that the parties may enter into a valid and binding accord and satisfaction or compromise agreement. 25 A constructive trust must never be confused with a real or express trust, which, in itself, contains a fiduciary relationship. The constructive trust lacks the attributes of a true trust9 and is only a fiction imposed as an equitable device to prevent injustice. It, unlike the express or true trust, is not a fiduciary relationship, although the circumstances which give rise to it may or may not involve a fiduciary relation.10 26 Such being the character of a constructive trust, we perceive no reason why a bona fide dispute with respect to a claim, which, if established, would give rise to a constructive trust, should not be settled and discharged by an agreement of accord and satisfaction.11 27 The judgment is reversed and the cause remanded, with instructions to enter judgment in favor of Salisbury. Notes: 1 Hereinafter called Reliance Company 2 Hereinafter called Professional Company 3 Van Dyke v. Norfolk Southern R. Co., 112 Va. 835, 72 S.E. 659, 664; Pomeroy, Specific Performance of Contracts, 3d Ed., § 159 4 Jacoby v. Shell Oil Co., 7 Cir., 196 F. 2d 855, 858; National Waste Co. v. Spring Packing Corp., 7 Cir., 200 F.2d 14, 16, certiorari denied 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344; 89 C.J.S. Trusts § 158, pp. 1079-1081 5 Jacoby v. Shell Oil Co., supra; Marshall v. Amos, Okl., 300 P.2d 990; Collins v. Shive, Mo., 261 S.W.2d 58; 89 C.J.S. Trusts § 158, p. 1081. See also, Kitt v. Kitt, 4 Utah 2d 384, 294 P.2d 791, 792 6 See United States v. Neel, 10 Cir., 235 F.2d 395, 399; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Wilcox Oil & Gas Co. v. Diffie, 10 Cir., 186 F.2d 683, 696 7 Badger & Co. v. Fidelity Building & Loan Association, 94 Utah 97, 75 P.2d 669, 676 8 See also, Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 10 Cir., 176 F.2d 73, 76 9 Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 282-283, 73 S.Ct. 671, 97 L.Ed. 1007; Scott on Trusts, Vol. 3, § 462.1; 89 C.J.S. Trusts § 139 p. 1015 10 Gendler v. Sibley State Bank, D.C.Iowa, 62 F.Supp. 805; In re Farmers State Bank of Amherst, 67 S.D. 51, 289 N.W. 75, 126 A.L.R. 619; Restatement of the Law of Restitution, § 160, Comment (a); Scott on Trusts, Vol. 3, § 462.1, p. 2316; 89 C.J.S. Trusts § 139 pp. 1018-1019 11 See Scott on Trusts, Vol. 3, § 481.3	{ "pile_set_name": "FreeLaw" }
279 S.C. 22 (1983) 301 S.E.2d 552 C. Gurnie STUCK, Respondent, v. PIONEER LOGGING MACHINERY, INC., Appellant. 21881 Supreme Court of South Carolina. March 15, 1983. James H. Watson and Albert Q. Taylor, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, for appellant. Thomas H. Pope and Gary T. Pope of Pope & Hudgens and Eugene C. Griffith of Griffith, Mays, Foster, Kittrell & Bolt, Newberry, for respondent. March 15, 1983. HARWELL, Justice: Respondent initiated this indemnity suit based on strict liability and breach of implied and express warranties. The 23 trial court, sitting without a jury, granted respondent relief. We affirm. Respondent, who is in the pulpwood business, contacted appellant concerning a possible purchase of mechanical harvesting equipment. Appellant's agent recommended a used Barko loader mounted on a used International truck for respondent's purposes. On January 17, 1977, one of appellant's agents drove the equipment from its place of business in Lexington, South Carolina, to the respondent's job site in Cross Hill, South Carolina, for a demonstration. Four days later, respondent purchased the equipment relying on the assurances of appellant's agent that the truck was suitable for respondent's intended use. Respondent's intended use included harvesting the timber and moving upon highways from one timber site to the next. On January 25, 1977, respondent's agent attempted to drive the equipment for the first time to a job site fifteen miles away. Within a half-mile of departure, the truck's rear axle shifted when the driver put on brakes, causing him to lose control and collide head on with an approaching vehicle. The resulting collision killed the driver of the oncoming vehicle, Mr. Hastings, and seriously injured the passenger, Mr. Woods. Hastings' administratrix brought a wrongful death action against respondent and his driver. After a jury verdict for actual damages, respondent gave Notice of Intention to Appeal. Before the appeal ripened, however, respondent settled the suit for $97,000. Additionally, respondent settled Woods' claim for $47,000. In both cases, respondent requested appellant to participate in the suits, but appellant refused. Respondent then initiated this action for indemnification. At trial, respondent put in uncontradicted testimony from an expert. The expert, the service manager at an International Harvester dealership, examined the wreckage after the accident. He testified that the equipment's rear axle assembly was defective: the U-bolts were loose, the bushings were worn out, and the center pin was sheared. He also testified that with a defective rear axle assembly, a driver would have trouble controlling the vehicle when he put on brakes. Additionally, he stated that in his opinion, the truck had been defective for quite some time. He also stated that an unexperienced person could not have detected the defects. 24 Appellant's salesman testified that he had represented the equipment he sold as roadworthy. He stated that he examined the machinery after the accident and that it appeared the rear axle had slipped causing the accident. Appellant offered no evidence other than the transcript of the case brought by Hastings' administratrix against respondent. The trial judge refused to admit the evidence. Appellant attempted to show by the transcript that the jury found respondent negligent; therefore, if appellant was liable also, it was merely a joint tortfeasor. Under South Carolina law, there can be no indemnity among mere joint tortfeasors. Atlantic Coast Line Railroad Company v. Whetstone, 243 S.C. 61, 132 S.E. (2d) 172 (1963). Nevertheless, the trial judge concluded that the appellant and respondent were not joint tortfeasors. We agree. At the outset, we acknowledge that in an action at law, on appeal of a case tried without a jury, the findings of fact will not be disturbed unless found to be without evidence which reasonably supports the judge's findings. Townes Associates, Ltd. v. The City of Greenville, 266 S.C. 81, 221 S.E. (2d) 773 (1976). We find ample evidence to support the findings. We note that the modern trend concerning the right to indemnity is to look to principles of equity. According to equitable principles, a right of indemnity exists whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnity the other, as where one person is exposed to liability by the wrongful act of another in which he does not join. 41 Am. Jur. 2d Indemnity § 2 (1968); 42 C.J.S. Indemnity § 21 (1944). We believe appellant has an obligation to indemnify respondent. Respondent's action is not based on negligence. He asserts that appellant is liable on grounds separate from any purported fault of his: appellant sold a defective product in an unreasonably dangerous condition, and it breached its warranty that the truck was roadworthy. This action is not based upon any claimed right of indemnity from a joint tortfeasor. Rather, it is an action to recover damages sustained by respondent from appellant's failure to ensure the safe condition of the equipment it sold respondent. Under 25 the facts of this case, respondent's failure to discover and correct the latent defects and correct appellant's breach of warranties cannot excuse the breach and defeat respondent's claim. This Court allowed indemnity under somewhat similar circumstances in South Carolina Electric and Gas Co. v. Utilities Const. Co., 244 S.C. 79, 135 S.E. (2d) 613 (1964). There, this Court upheld an indemnity claim by the electric company against its independent contractor who had defectively repaired a sidewalk. By ordinance the electric company was liable to a pedestrian injured due to the defective sidewalk. The contractor contended that the electric company was negligent in failing to discover and correct the defect. It alleged that its written indemnity agreement did not bind it to indemnify the electric company against liability incurred in whole or in part by the electric company's negligence. The majority of the court concluded that the electric company's action was not based upon a claimed right of indemnity from a joint tortfeasor but was instead an action to recover damages under the contractual obligation. Therefore, the joint tortfeasor rule was inapplicable. Likewise, we believe the joint tortfeasor rule is inapplicable here. Our inquiry concerns the rights and obligations of the parties under appellant's warranties and strict liability. Under S.C. Code Ann. § 36-2-313 (1976) an express warranty is any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis for the bargain. Here, appellant's salesman expressly warranted the timber harvesting equipment. In addition, where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for such purpose. S.C. Code Ann. § 36-2-316 (1976). Here, appellant's salesman testified that respondent told him for what purpose he wanted to buy the equipment. As a result, the salesman recommended the Barko loader and truck which respondent bought. S.C. Code Ann. § 15-73-10 (1976) provides that one who sells a product in a defective condition unreasonably dangerous to the user or consumer or to his property 26 is subject to liability for physical harm caused to the ultimate user or consumer or to his property. The uncontroverted testimony shows that the equipment was defective and that the defective equipment caused the accident. Clearly, the claim for damages arose out of appellant's breach of warranties and its strict liability for selling a dangerously defective product. Accordingly, we affirm the order of the trial judge. Affirmed. LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.	{ "pile_set_name": "FreeLaw" }
122 F.3d 1073 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.Laurie Evelyn SMITH, Plaintiff-Appellant,v.Tana WOOD; Al Scamahorn; Tom Rolfs; Steve Rawlings;Chase Riveland, Defendants-Appellees. No. 96-35487. United States Court of Appeals, Ninth Circuit. Submitted August 25, 1997.*Decided Aug. 29, 1997. Appeal from the United States District Court for the Eastern District of Washington, No. CV-95-00322-JLQ; Justin L. Quackenbush, Senior District Judge, Presiding. Before: SCHROEDER, FERNANDEZ, and RYMER, Circuit Judges. 1 MEMORANDUM 2 Laurie Evelyn Smith appeals pro se the district court's summary judgment in her 42 U.S.C. § 1983 action alleging that prison officials violated her right to equal protection by terminating extended family visits with her incarcerated husband pursuant to Washington Division of Prisons Directive 590.100. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996), and we affirm. A. Equal Protection Claim 3 Smith contends the district court erred by granting summary judgment on her equal protection claim. We disagree. Where, as here, a plaintiff does not allege a violation of a fundamental right or the existence of a suspect classification, prison officials need only show that their policies bear a rational relation to a legitimate penological interest in order to satisfy the equal protection clause. See Coakley v. Murphy, 884 F.2d 1218, 1221-22 (9th Cir.1989). In this case, the institution has a legitimate penological interest in ensuring the safety of prison inmates, staff and visitors, see Block v. Rutherford, 468 U.S. 576, 586 (1984), and restricting extended family visitation privileges to inmates without documented histories of domestic violence is reasonably related to this interest. See id. at 586-87. Accordingly, the district court did not err by granting summary judgment on Smith's equal protection claim. B. Interrogatories 4 Smith contends the district court erred by denying her motion to compel answers to her interrogatories. We disagree. The district court properly reasoned that, even if Smith were able to show that other similarly-situated prisoners have maintained their extended family visitation privileges, a mere showing of inequality does not establish an equal protection violation. See McQueary v. Blodgett, 924 F.2d 829, 835 (9th Cir.1991).1 5 AFFIRMED. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Appellant's September 25, 1996 request for reconsideration of this court's September 3, 1996 oral extension by phone of the time to file appellees' answering brief is denied * 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 1 We affirm the district court's dismissal of Smith's state law claim because an allegation of a state law infraction is not sufficient to state a section 1983 claim. See Baker v. McCollan, 443 U.S. 137, 146 (1979)	{ "pile_set_name": "FreeLaw" }
562 F.3d 1197 (2009) UNITED STATES of America, Plaintiff-Appellee, v. Phasung Lu BACCAM, Defendant-Appellant. No. 08-3242. United States Court of Appeals, Eighth Circuit. Submitted April 14, 2009. Filed April 28, 2009. Josh Lee, AFPD, argued, Little Rock, AR, Angela Lorene Pitts, AFPD, on the brief, Fayetteville, AR, for appellant. Candace L. Taylor, AUSA, argued, Fort Smith, AR, for appellee. Before MURPHY, HANSEN, and BYE, Circuit Judges. MURPHY, Circuit Judge. Phasung Lu Baccam was convicted under 18 U.S.C. § 2250 for failing to register as a sex offender after he moved to Arkansas from California where he had been convicted of a sex offense under state law. The district court[1] denied his motion to dismiss the indictment on the ground that he had not received notice of the federal sex offender registration law. Baccam appeals, and we affirm. In 1996 Baccam was convicted in California of sexual contact with a minor female. Under California law this conviction required him to maintain registration as a sex offender throughout his lifetime. 1198 Cal.Penal Code § 290(b) (Deering 2009). Two "Notice of Sex Offender Registration Requirement" forms that Baccam signed on February 8, 1999 and November 10, 2003 not only detailed his registration requirements within California, but also notified him that if he moved to another state he would need to register in that state within ten days and notify the law enforcement agency with which he was last registered of his change of residence. After Baccam was arrested in California for failure to update his registration he signed another form on September 19, 2005. That form required him to initial his acknowledgment that he was required to register as a sex offender in any state to which he might relocate. In the summer of 2007 Baccam moved to Arkansas but did not register as a sex offender. When he was arrested in September 2007 for traffic violations, officials discovered that he had not registered as a sex offender in their state as required by California, Arkansas, and federal law. He was later indicted under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250, for his failure to register. SORNA is part of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 590 (2006). When enacting the law, Congress declared that "in order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators," it was establishing a "comprehensive national system for registration of those offenders." 42 U.S.C. § 16901 (2008).[2] To improve coordination and information sharing between jurisdictions, SORNA encourages each state to maintain a sex offender registry conforming to national standards and ties the receipt of certain federal funds to compliance with those standards. Id. §§ 16912, 16925(a). SORNA requires a sex offender to register in each jurisdiction where he or she resides, works, or is a student. Id. § 16913(a). Within three business days of any change of name, residence, employment, or student status, the offender must appear in person in either the old or new state to update his or her registration. Id. § 16913(c). That state must then transmit the information to other places where the offender is required to register. Id. SORNA also created a federal criminal offense for a sex offender who travels in interstate commerce and knowingly fails to register or update a registration as required by federal law. 18 U.S.C. § 2250(a). The statute applies to sex offenders convicted under federal law even when they do not travel in interstate commerce. Violation of § 2250(a) carries a prison sentence of up to ten years. Baccam moved to dismiss the indictment charging him under § 2250(a). After the district court denied the motion, Baccam entered a conditional guilty plea and was sentenced to twenty four months. We review de novo the denial of a motion to dismiss an indictment. See United States v. Cvijanovich, 556 F.3d 857, 862 (8th Cir.2009). Baccam contends that he could not, as a matter of law, knowingly fail to register under SORNA because he was never told of his specific registration obligations under that law. A provision in SORNA entitled "Duty to notify sex offenders of registration 1199 requirements and to register" states that "[a]n appropriate official shall... inform the sex offender of the duties of a sex offender under this title and explain those duties." 42 U.S.C. § 16917(a). Baccam contends that because there is no evidence that he was ever informed about his duties under SORNA, which had been enacted in 2006 after he had signed the California forms informing him of his duty to register if he moved to a different state, the government cannot prove an element of the offense and the indictment should have been dismissed. The government argues that the scienter requirement in § 2250(a) does not require that Baccam specifically knew he was violating SORNA, but only that he knew he was violating a legal registration requirement upon relocating. It urges that Baccam knew he was required to register in a new state because of the information provided him on the California forms he had signed in 1999, 2003, and 2005. We have previously had occasion to rule on challenges to the application of SORNA. In United States v. May, 535 F.3d 912 (8th Cir.2008), we addressed a number of challenges to SORNA and specifically to § 2250(a). We held that § 2250(a) was authorized by the Commerce Clause, that SORNA applies to sex offenders convicted prior to the statute's passage, and that such application does not violate the Ex Post Facto Clause. Id. at 918-22. We also rejected May's argument that his prosecution under SORNA violated due process because he had not received notice of the statute's registration requirements. Id. at 921. Then, in United States v. Howell, 552 F.3d 709, 717 (8th Cir.2009), we concluded that the § 16913 registration requirement itself was also a constitutional exercise of Congress's commerce power. The defendant in May raised a due process argument similar to Baccam's claim that he had no notice of SORNA's requirements, and we observed there that May "admitted he knew, based on previously enacted state laws, he had an obligation to register and keep his registration current when moving between jurisdictions." 535 F.3d at 921. Thus, there was no constitutional infirmity in his conviction. Other courts of appeals have also rejected lack of notice due process challenges to SORNA when the defendant had received notice of state law registration requirements. See, e.g., United States v. Dixon, 551 F.3d 578, 584 (7th Cir.2008); United States v. Hinckley, 550 F.3d 926, 938-39 (10th Cir. 2008); United States v. Samuels, No. 08-5537, 2009 WL 877698, at 3 (6th Cir. Apr.2, 2009). Baccam states that his appeal is not controlled by May because that case addressed only the notice required by due process. He contends that Congress provided for greater notice than the Constitution requires. In essence he argues that because SORNA requires officials to inform sex offenders about the statute's requirements, "the general rule that ignorance of the law ... is no defense to criminal prosecution" does not apply. See Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). He cites no authority for the argument that a lack of § 16917 notice is a defense to prosecution under § 2250(a). Numerous district courts have rejected this defense. E.g., United States v. Trent, 568 F.Supp.2d 857, 866-67 (S.D.Ohio 2008); United States v. LeTourneau, 534 F.Supp.2d 718, 722-23 (S.D.Tex.2008); United States v. Gould, 526 F.Supp.2d 538, 544-45 (D.Md.2007); United States v. Adkins, 2007 WL 4335457, at 5, 2007 U.S. Dist. LEXIS 90737, 14-15 (N.D.Ind. Dec. 7, 2007); United States v. Lovejoy, 516 F.Supp.2d 1032, 1037-38 (D.N.D.2007). 1200 We conclude that it would be inconsistent with SORNA's purpose of protecting the public by strengthening the system of sex offender registration not to give effect to state law notifications that relocation requires registration in the new jurisdiction. There is no reason to believe that the SORNA notice provision in § 16917 was intended to dilute the effect of state notice requirements, given the stated congressional intent to protect the public by establishing a comprehensive national system for registration of sex offenders. 42 U.S.C. § 16901. We conclude that Baccam had adequate notice of his registration obligations based on the information provided him in the California registration forms, even if that notice did not explain that failure to register would be a violation of federal law as well as state law. Baccam does not deny that he knew that he needed to register in Arkansas. Had he done so, he would have received notification of SORNA's requirements, and would have been in compliance with federal law.[3] Accordingly, we affirm the judgment of the district court. NOTES [1] The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas. [2] During the Senate consideration of the Act, Senator Orrin Hatch pointed out that "[l]aws regarding registration for sex offenders have not been consistent from State to State," and that there may have been as many as "150,000 sex offenders who are not complying." 152 Cong. Rec. S8012-02, *S8013 (2006) (statement of Sen. Hatch). [3] SORNA requires a sex offender to register within three days of moving to a new state, while Baccam was informed in California that he needed to register within ten days. This difference is immaterial given the fact that Baccam did not register for several months after moving to Arkansas.	{ "pile_set_name": "FreeLaw" }
114 Pa. Commonwealth Ct. 507 (1988) 539 A.2d 51 A & P Tea Company, Petitioner v. Workmen's Compensation Appeal Board (Giglio), Respondent. No. 562 C.D. 1987. Commonwealth Court of Pennsylvania. Submitted on briefs February 25, 1988. March 21, 1988. Submitted on briefs February 25, 1988, to Judges DOYLE and PALLADINO, and Senior Judge KALISH, sitting as a panel of three. 508 Ronald F. Bove, Swartz, Campbell & Detweiler, for petitioner. Frank J. Rubinate, for respondent, Patricia Giglio. OPINION BY JUDGE DOYLE, March 21, 1988: This is an appeal by the A & P Tea Company (Employer) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision dismissing Employer's petition for suspension or modification of benefits. An understanding of the procedural history of this case is critical. On June 28, 1978 Patricia Giglio (Claimant) sustained a compensable injury. Benefits were paid by Employer. Then on June 23, 1982 Employer filed a petition seeking alternatively to suspend or modify benefits. The petition was later amended at hearing to one seeking a termination of benefits. Hearings were held before Referee Stief, a Bucks County referee, the last hearing being held on October 11, 1984. After the record was closed, but prior to the issuance of the decision, Referee Stief resigned. The case was reassigned to Referee Nickel who had been appointed as a referee on May 6, 1985. Referee Nickel was the "acting" Bucks County referee until he was reassigned to Lancaster County in early 1986. 509 Referee Nickel, in his order, terminated Claimant's benefits effective January 20, 1983. Although his order terminated benefits, his findings of fact indicate that he found credible, inter alia, the portion of Claimant's doctor's testimony which indicated that as of May or June 1982 Claimant could work subject to standing and lifting restrictions. Yet, he also found credible that portion of Employer's physician's testimony which opined that Claimant was fully recovered from her 1978 injury and could return to work without restrictions. Employer's doctor had examined Claimant on April 8, 1981. He was, however, deposed on January 19, 1983; the following day, i.e., January 20, 1983, was the date that Referee Nickel used as the date benefits were to be terminated. It is obvious, however, that Employer's doctor's testimony as to Claimant's condition must relate to the date on which he examined Claimant (April 8, 1981) not to the date when he was deposed. Thus, the referee's findings are inconsistent because in crediting Employer's doctor he had to find that Claimant was fully recovered on April 8, 1981, but in crediting Claimant's doctor he had to find that Claimant had continuing disability and valid work restrictions in May or June of 1982. Despite this inconsistency, the referee determined that Claimant's disability had ceased as of January 20, 1983 and, thus, terminated benefits as of that date. Claimant appealed this order to the Board alleging, inter alia, that the findings of fact were inconsistent with each other and with the conclusions of law and that the referee who heard the testimony (Referee Stief) did not decide the case. The Board reversed and remanded the case in an opinion and order which reads in its entirety as follows: We have reviewed the Referee's Decision in this case and must reverse and remand. The Findings of Fact are inconsistent in that apparently 510 medical bills are ordered after the compensation is terminated. It would also appear the Referee accepted testimony of residual disability and then made no finding on job availability if in fact the Referee determined there was a residual disability. We are also unable to determine whether or not the Referee considered the Claimant's testimony. It is not mentioned in the Findings of Fact or listed on the cover sheet. The Referee should determine the status of the Claimant's condition and if changed from total disability, the date of the change. In addition, the Referee should consider all the testimony of record. We would note the Act specifically procides [sic] for the situation in which a different Referee decides the case from the Referee who listened to the testimony. This is proper and there is no need for the Claimant to re-testify if his [sic] testimony is in fact a part of the record. Upon remand, the case was assigned to another referee, Referee Perry, who had trained Referee Nickel. Referee Perry took no additional testimony. He then issued a decision wherein he found credible the testimony of, inter alia, Claimant and her physician. Succinctly stated, he determined that Claimant's work-related disability continued and that she remained totally disabled. Thus, benefits were ordered to continue. Employer appealed to the Board alleging that Referee Perry had disregarded the evidence and that the Board erred in remanding the case to a referee other than Referee Nickel when Referee Nickel was still an "active" referee and that Referee Perry exceeded his authority in reversing Referee Nickel on credibility determinations. The Board, in affirming Referee Perry, indicated that his findings were substantially supported by the evidence. Further, it stated that the "[r]ole of a substitute referee . . . as to 511 evidence which [the] Department has referred to him is the same as if he had taken it himself." (Citing Arena v. Workmen's Compensation Appeal Board (Packaging Systems Corp.), 85 Pa. Commonwealth Ct. 553, 483 A.2d 577 (1984), reversed on other grounds, 510 Pa. 34, 507 A.2d 18 (1986)). Finally, the Board wrote, "it should be noted for the record that original referee [Nickel] was reassigned and still learning his assignments thus, the reason why Referee Perry wrote the decision." Employer has appealed to this Court and raises three questions for our consideration: (1) did the Board err in initially remanding the case when all "critical issues" ruled upon by Referee Nickel were supported by substantial evidence; (2) did the Board err in remanding the case to a referee other than Referee Nickel; (3) did Referee Perry exceed the scope of the Board's remand order. First, in determining whether the Board acted properly in remanding the case, we are guided by Section 419 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 732, as amended, 77 P.S. §852, which provides as follows: The board may remand any case involving any question of fact arising under any appeal to a referee to hear evidence and report to the board the testimony taken before him or such testimony and findings of fact thereon as the board may order. The department may refer any question of fact arising out of any petition assigned to a referee, to any other referee to hear evidence, and report the testimony so taken thereon to the original referee. It is apparent from the first sentence of Section 419 that if there are factual questions which need resolved, a remand is appropriate. Here there were just such questions. It was unclear whether Referee Nickel had found 512 that Claimant continued to be totally disabled or whether he had found that she could return to work subject to restrictions. This factual issue required clarification. Therefore, the remand order was appropriate. While it is true that we have held that inartfully drawn factual findings do not necessarily compel a remand, see Hammermill Paper Co. v. Workmen's Compensation Appeal Board, 30 Pa. Commonwealth Ct. 401, 373 A.2d 1180 (1977), that is so only where the findings are sufficient to permit the Board to perform its proper appellate review. Id. Thus, in Hammermill, because the necessary finding on causation was present, a remand could be avoided. In this case, unlike Hammermill, the Board determined that the findings were inconsistent; further, the Board was unable to ascertain whether the Claimant's testimony was even considered.[1] Thus, the findings here were more than inartful; they were incapable of appellate review. Similarly, Kunicki v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 72, 423 A.2d 1368 (1981), cited by Employer, is not helpful. There the referee set out in the findings the position of both the employer and the claimant on whether claimant's petition was timely filed. He did not, however, resolve the timeliness question in a specific finding. But, he reached the merits. We concluded on appeal that by having decided the case on the merits the referee implicitly resolved the timeliness question in favor of the claimant. No such inference, however, is permissible on the facts of this case. 513 Employer next contends that the Board abused its discretion in remanding the case to a referee other than Referee Nickel. First, we do agree with the Employer that this case is distinguishable from Arena, which the Board cited. The precise issue on appeal here does not concern a situation where the substitution of a referee occurred before the initial decision was rendered as was the situation in Arena. Hence, unlike Arena, it is not governed by Section 415 of the Act, 77 P.S. §851 (providing for a transfer of a petition from one referee to another before a referee has entered an order). Rather, it is the first sentence of Section 419 which is controlling here. The question squarely put then, is whether the Board, under Section 419, must remand to the original referee if that referee is still active. Significantly, the language appearing in the first sentence of Section 419 does not direct that a case be remanded to the original referee but only to "a referee" and we reject Employer's argument that remand to the original referee is implicit in the statute. In the instant case, Referee Perry in his decision upon remand indicated that Referee Nickel had been reassigned to the Lancaster office. This case, however, had been handled previously in Bucks County where Referee Perry worked. Further, Referee Perry indicated that as the manager/referee he had been Referee Nickel's supervisor and trainer. Upon these facts, we can find no abuse of discretion in permitting Referee Perry to decide the case upon remand. Finally, Employer contends that Referee Perry exceeded the scope of the Board's remand order when he made credibility determinations different from those made by Referee Nickel. First, we are not entirely convinced that this issue was clearly raised in the appeal to the Board. See R.A.P. 1551.[2] Assuming, however, that *514 the issue has been preserved, we do not believe that the referee exceeded the scope of the remand order which we find to be quite broad. It directed specifically that the referee should determine the status of Claimant's condition and consider all of the testimony of record. This then raises the question of whether Referee Perry could legally make credibility determinations different from those made by Referee Nickel. Finding nothing in Section 419 which would preclude him from doing so, we hold that a reversal of credibility determinations in this case was permissible. Accord Arena, 510 Pa. at 37 n.2, 507 A.2d at 19 n.2 (holding that a referee who did not take the evidence is, nonetheless, the fact finder and must be given due deference as such). Accordingly, we affirm the order of the Board. ORDER NOW, March 21, 1988, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is hereby affirmed. NOTES [1] Employer argues that Claimant's testimony was considered because the referee's opinion says, "After careful consideration and review of all of the testimony. . . ." Considering that (1) Claimant's testimony was not mentioned in the findings and (2) Claimant was not listed along with the other witnesses in the cover sheet of the opinion, we do not believe that the Board abused its discretion in ordering the remand. [2] It is hard to imagine an issue whose preservation before the Board could be more significant. Certainly the Board is best able to decide whether its own order was exceeded.	{ "pile_set_name": "FreeLaw" }
563 P.2d 641 (1977) BERT SMITH ROAD MACHINERY COMPANY, INC., a corporation, Appellant, v. OKLAHOMA TAX COMMISSION, Appellee. No. 50161. Supreme Court of Oklahoma. April 26, 1977. McKeever, Glasser, Conrad & Herlihy, by Douglas C. McKeever, Enid, for appellant. Donald B. Nevard, Gen. Counsel, Oklahoma Tax Commission and Michael Cameron Conaway, Oklahoma City, for appellee. 642 BARNES, Justice. This is an appeal from Order No. 63711 issued by the Oklahoma Tax Commission September 2, 1976, in Case No. 3751, said case being titled, "In the Matter of the Protest of Bert Smith Road Machinery Company, Inc., to the Assessment of Additional Tax for the Period October 1, 1972 through September 30, 1975." Appellant, Bert Smith Road Machinery Company, Inc., is an Oklahoma corporation engaged in the sale of heavy road building and construction equipment with its principal place of business in Enid, Oklahoma. Appellant timely filed a protest with the Appellee, Oklahoma Tax Commission, hereinafter referred to as "Commission," protesting the assessment of additional sales tax on the sale of a Boeing Drum Mix Asphalt Plant to the McConnell Construction Company of Oklahoma City, Oklahoma, hereinafter referred to as "McConnell Construction," for $343,678.00. The plant was delivered by Appellant to McConnell Construction at a highway construction site near Duncan, Oklahoma. At the time of delivery of the plant, McConnell Construction was in the process of building over two miles of asphalt paving on State Highway 7, under a $1,274,150.00 State contract as contractor of the job. The tax claimed by the Commission was $8,248.26, and that amount was paid under protest by Appellant. The Commission's Order found that the assessment for sales tax, interest and penalty on the August 16, 1975, sale of the asphalt plant was correct and that Appellant was under a legal obligation as vendor to collect from the purchaser, McConnell Construction, the appropriate sales tax; that for the purposes of the assessment, McConnell Construction was, at the time of the purchase, a contractor and not a manufacturer. Appellant seeks to have Commission Order No. 63711 reversed and to have the Commission remit to Appellant the sales tax paid under protest. Appellant contends that McConnell Construction, at the time of the purchase of the asphalt plant and thereafter, was a manufacturer of asphalt, operating a manufacturing plant as defined in the sales tax code and thus exempt from sales tax under 68 O.S. 1971, § 1305(p), which provides: "There is hereby specifically exempted from the tax levied by this Article the gross receipts or gross proceeds derived from the: * * * * * "(p) Sale of machinery and equipment purchased and used by persons establishing new manufacturing or processing 643 plants in Oklahoma, and machinery and equipment purchased and used by persons in the operation of manufacturing plants already established in Oklahoma; provided, this exemption shall not apply unless such machinery and equipment is incorporated into, and is directly used in, the process of manufacturing property subject to taxation under this Article. The term `manufacturing plants' shall mean those establishments primarily engaged in manufacturing or processing operations, and generally recognized as such." Here the Commission does not contend that the asphalt manufacturing plant is not a manufacturing plant. Commission is contending McConnell Construction failed to come within the exemption of § 1305(p), supra, because it was not generally recognized as a manufacturer but as a contractor, and, secondly, at the time the asphalt plant was purchased McConnell Construction was not acting as a seller of asphalt, but as a contractor using the asphalt in its own construction business, bringing it within the purview of 68 O.S. 1971, § 1302(h), which provides: " * * All contractors are deemed to be consumers or users of all tangible personal property, including materials, supplies and equipment, used or consumed by them in performing any contract and all sales of service and tangible personal property to contractors are taxable sales within the meaning of this Article. * * " Appellant relies heavily on the case of Auxier-Scott Supply Co. v. Oklahoma Tax Commission, 527 P.2d 159 (Okl. 1974), which construed § 1305(p), supra, and held that the sale of ready-mix concrete mixers and necessary accessories to be mounted on trucks for mobility and transportation is exempt from sales tax as a sale of machinery and equipment purchased and used by persons in the operation of manufacturing plants inasmuch as manufacturing or processing operation of ready-mix concrete continues in mobile ready-mix concrete mixer until delivery to the jobsite. We would agree, as does the Commission, that the mobile asphalt plant in the case at bar is a manufacturing plant, but that is not the question to be decided. Here the Commission held that even though the asphalt plant was a manufacturing plant McConnell Construction was a contractor and the sale of the asphalt plant to it was subject to the provisions of 68 O.S. 1971, § 1302(h), supra. Appellant further argues the wording of § 1302(h), supra, is not exclusive and that nothing prevents a company from being a "contractor" and "manufacturer" concurrently. We agree. The exemption statutes are to be strictly construed against exemptions. Phillips Petroleum Co. v. Oklahoma Tax Commission, 542 P.2d 1303 (Okl. 1975). Thus, Appellant had the burden of showing that McConnell Construction was not primarily a contractor, but primarily a manufacturer, as contemplated within § 1305(p), supra. Appellant's counsel (Tr. 31) stated: "Now admittedly the primary purpose of this company was that they were out here paving highways... ." thus conceding the primary use of the asphalt plant was manufacturing asphalt for private use in the performance of its construction business. We do not believe it was the intent of the Legislature that a contractor could avoid paying sales tax on an expensive piece of road construction equipment by merely making casual and isolated sales of the product produced and used. We agree with the Commission that McConnell Construction is primarily a highway contractor and not a manufacturer. The equipment was used primarily in the building of roads and not in the manufacturing of property subject to taxation. Even though McConnell Construction made occasional casual sales, they were not primarily engaged in manufacturing nor generally recognized as such. Contractors are not exempt from paying sales tax on their machinery. 68 O.S. 1971, § 1302(h), supra. Title 68 O.S. 1971, § 1304(a), (k), provides: "There is hereby levied an excise tax of two per cent (2%) upon the gross proceeds 644 or gross receipts derived from all sales to any person of the following: "(a) Tangible personal property. * * * * * * "(k) * * * Sales of service and tangible personal property, including materials, supplies and equipment made to contractors who use the same in the performance of any contract, are hereby declared to be sales to consumers or users and not sales for resale. * * * " Title 68 O.S. 1971, § 1310(a), provides: "The tax levied hereunder shall be paid by the consumer or user to the vendor, and it shall be the duty of each and every vendor in this State to collect from the consumer or user, the full amount of the tax levied by this Article, or an amount equal as nearly as possible or practicable to the average equivalent thereof." Appellant's sale to McConnell Construction was a taxable sale under 68 O.S. 1971, § 1310(a). AFFIRMED. HODGES, C.J., LAVENDER, V.C.J., and WILLIAMS, IRWIN, BERRY, SIMMS and DOOLIN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
311 S.W.2d 276 (1958) John F. TREVINO et al., Relators, v. Ross E. DOUGHTY, District Judge, et al., Respondents. No. 13344. Court of Civil Appeals of Texas, San Antonio. March 5, 1958. Rehearing Denied March 26, 1958. 277 James C. Brady, San Antonio, for relators. Eskridge, Groce & Hebdon, San Antonio, for respondents. PER CURIAM. On February 21, 1958, John F. Trevino et al. filed in this Court a motion for leave to file a petition for writ of mandamus against the Honorable Ross E. Doughty, District Judge, 38th Judicial District, seeking to require him to enter a final judgment in Cause No. 4796, styled John F. Trevino et al. v. Andres Cardenas and R. S. (Bob) Baker, d/b/a Bob Baker Construction Co. Relators stated in their petition, in substance, that the jury in the case had answered certain issues submitted to them, in relators' favor and had awarded them the sum of $42,500, and that under the undisputed facts and the findings of the jury relators were entitled to have judgment rendered in their favor in the total sum of $44,350, but the trial judge declared a mistrial. In the light of the allegations contained in the petition, this Court granted the motion for leave to file the petition, and ordered the matter set down for a hearing on February 28, 1958, at 2 P.M. Thereafter, on February 26, 1958, relators filed in this Court their Exhibits A and B. The trial judge's order is contained in "Exhibit A" and reads as follows: "On this the 26th day of November, 1957, came on to be heard the above styled and numbered cause, upon the motion of the plaintiff, John F. Trevino et al., for a judgment on the verdict, and also upon the motion of the defendant, R. S. (Bob) Baker, d/b/a Bob Baker Construction Company, for judgment non obstante veredicto, said parties being present in court by and through their respective attorneys of record herein; the court after hearing said motions and the argument of counsel is of the opinion that the plaintiff's motion for judgment on the verdict should be overruled, and the same is hereby overruled, and that the motion of the defendant, R. S. (Bob) Baker, for judgment non obstante veredicto should be overruled, and the same is hereby overruled, and that mis-trial is hereby declared, "It is therefore ordered by the court that the verdict and findings of the jury be set aside, and held for naught, that mis-trial be entered and a new trial granted, to all of which the plaintiffs, and each of them, then and there, objected and excepted. "Dated this 13th day of January, 1958." It is apparent from this order, that while the trial court stated in the first part of his judgment, "that mis-trial is hereby declared," in the second part, he ordered "that 278 the verdict and findings of the jury be set aside, and held for naught, that mis-trial be entered and a new trial granted." Rule 300, Texas Rules Civil Procedure, provides, in effect, that the trial court shall render judgment upon the special verdict, "unless set aside or a new trial is granted, or judgment is rendered notwithstanding verdict or jury finding." It is clear here that the trial court both set aside the verdict and granted a new trial, therefore, it was not his ministerial duty to enter judgment on the special issue verdict. We can issue a writ of mandamus only in a case where the entering of a judgment by the trial court is a ministerial duty. Walker v. Lindsey, Tex.Civ. App., 298 S.W.2d 195; Kennann v. Nelson, Tex.Civ.App., 278 S.W.2d 335; Cheswick v. Moorhead, Tex.Civ.App., 224 S.W.2d 898. The petition for mandamus is refused.	{ "pile_set_name": "FreeLaw" }
509 F.3d 1122 (2007) HUMANITARIAN LAW PROJECT; Ralph Fertig; Ilankai Thamil Sangam; Tamils of Northern California; Tamil Welfare and Human Rights Committee; Federation of Tamil Sangams of North America; World Tamil Coordinating Committee; Nagalingam Jeyalingam, Dr., Plaintiffs-Appellees, v. Michael B. MUKASEY,[] Attorney General, of the United States; United States Department of Justice; Condoleeza Rice, Secretary of State; United States Department of State, Defendants-Appellants. Humanitarian Law Project; Ralph Fertig; Ilankai Thamil Sangam; Tamils of Northern California; Tamil Welfare and Human Rights Committee; Federation of Tamil Sangams of North America; World Tamil Coordinating Committee; Nagalingam Jeyalingam, Dr., Plaintiffs-Appellants, v. Michael B. Mukasey,[] Attorney General, of the United States; United States Department of Justice; Condoleeza Rice, Secretary of State; United States Department of State, Defendants-Appellees. Nos. 05-56753, 05-56846. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 1, 2007. Filed December 10, 2007. 1123 1124 1125 Peter D. Keisler, Assistant Attorney General; Debra Wong Yang, United States Attorney; Gregory G. Katsas, Deputy Assistant Attorney General; and Douglas N. Letter, Joshua Waldman, Appellate Staff, Civil Division, for the defendants-appellants/appellees. David Cole, Georgetown University Law Center; Shayna Kadidal, Center for Constitutional Rights; Carol A. Sobel, Law Office of Carol A. Sobel; Paul L. Hoffman, Schonbrun, De Simone, Seplow Harris & Hoffman, LLP; Visuvanathan Rudrakumaran, Plaintiff World Tamil Coordinating Comm., for the plaintiffs-appellees/appellants. 1126 Before: HARRY PREGERSON, SIDNEY R. THOMAS, and JOHNNIE B. RAWLINSON, Circuit Judges. PREGERSON, Circuit Judge: We are once again called upon to decide the constitutionality of sections 302 and 303 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and its 2004 amendment, the Intelligence Reform and Terrorism Prevention Act ("IRTPA"). I. OVERVIEW Section 302(a) of AEDPA, Pub.L. 104-132, 110 Stat. 1214 (1996), codified in 8 U.S.C. § 1189, authorizes the Secretary of State (the "Secretary") to designate a group as a "foreign terrorist organization." Section 303(a) makes it a crime for anyone to provide support to even the nonviolent activities of the designated organization. See 18 U.S.C. § 2339B(a). Specifically, 8 U.S.C. § 1189(a)(1) authorizes the Secretary of State to designate an organization as a foreign terrorist organization . . . if the Secretary finds that (A) the organization is a foreign organization; (B) the organization engages in terrorist activity . . .; and (C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States. 8 U.S.C. § 1189(a)(1). The pertinent facts may be found in prior published decisions in this case. See Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir.2000) ("HLP I"), cert. denied, 532 U.S. 904, 121 S.Ct. 1226, 149 L.Ed.2d 136 (2001); see also Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir.2003) ("HLP II"), vacated, 393 F.3d 902 (9th Cir.2004). We, therefore, set forth only a brief overview of the facts of this case. Plaintiffs are six organizations, a retired federal administrative law judge, and a surgeon. The Kurdistan Workers Party, a.k.a Partiya Karkeran Kurdistan ("PKK"), and the Liberation Tigers of Tamil Eelam ("LTTE") engage in a wide variety of unlawful and lawful activities. Plaintiffs seek to provide support only to nonviolent and lawful activities of PKK and LTTE. This support would help Kurds living in Turkey and Tamils living in Tamil Eelam in the Northern and Eastern provinces of Sri Lanka to achieve self-determination.[1] On October 8, 1997, the Secretary of State designated PKK, LTTE, and twenty-eight other foreign organizations as "foreign terrorist organizations." See 62 Fed. Reg. 52, 650, 52,650-51 (Oct. 8, 1997). To this day, both PKK and LTTE remain on the designated foreign terrorist organization list. Plaintiffs, fearing that they would be criminally investigated, prosecuted, and convicted under section 2339B(a), have been withholding their support for the PKK and LTTE from the time they were designated as foreign terrorist organizations. On March 19, 1998, Plaintiffs filed a complaint in the district court (CV-98-01971-ABC; appeal No. 05-56753), alleging that AEDPA violated their First and Fifth Amendment rights. Plaintiffs 1127 sought a preliminary injunction to bar the government from enforcing against them AEDPA's prohibition against providing "material support or resources" to PKK and LTTE. In support of their motion for a preliminary injunction, Plaintiffs argued: (1) that AEDPA violated their First Amendment right to freedom of association and their Fifth Amendment right to due process because section 2339B(a) imposed a criminal penalty for their association with the designated organizations without requiring the government to prove that Plaintiffs had the specific intent to further the designated organizations' unlawful goals; (2) that AEDPA violated their First Amendment right to association by prohibiting them from making political contributions to the designated organizations; and (3) that AEDPA violated their First and Fifth Amendment rights because it gave the Secretary of State unfettered licensing power to designate a group as a foreign terrorist organization. In June 1998, the district court partially granted Plaintiffs' motion for a preliminary injunction and enjoined the Attorney General's enforcement of AEDPA with respect to its prohibition on providing "training" and "personnel" to PKK and LTTE. See Humanitarian Law Project v. Reno, 9 F.Supp.2d 1205, 1215 (C.D.Cal.1998) ("DC-HLP I"). The district court held that "Plaintiffs have demonstrated a probability of success on their claim that the terms `personnel' and `training' are impermissibly vague." Id. The district court rejected the remainder of Plaintiffs' challenges, holding that AEDPA's prohibition on providing "material support or resources" to designated foreign terrorist organizations is a "content-neutral limitation on Plaintiffs' right to freedom of association" and "is subject to an intermediate scrutiny level of review." Id. at 1212. The district court also held that "AEDPA does not impose `guilt by association alone' in violation of the First Amendment because the AEDPA only limits the permissible ways in which Plaintiffs can associate with PKK and LTTE." Id. (emphasis in the original). In other words, the district court held that AEDPA does not criminalize mere membership. Rather, AEDPA criminalizes conduct that provides "material support or resources" to a designated foreign terrorist organization. Finally, the district court held that Plaintiffs failed to establish a probability of success on their claim that AEDPA affords the Secretary of State unfettered discretion to designate a group as a foreign terrorist organization. See id. at 1213. Both parties appealed the district court's order. On March 3, 2000, we affirmed the district court. See HLP I. In HLP I, we determined that AEDPA section 2339B is a content-neutral regulation of conduct subject to intermediate scrutiny. See id. at 1135. Further, we rejected Plaintiffs's licensing scheme argument and held that the discretion accorded to the Secretary of State to designate a group as a foreign terrorist organization is not "unfettered" "because the regulation involves the conduct of foreign affairs" for which the courts "owe the executive branch even more latitude." Id. at 1137. Finally, we agreed with Plaintiffs that AEDPA's prohibitions on providing "personnel" and "training" to designated foreign terrorist organizations were unconstitutionally vague because these prohibitions could be read to criminalize conduct protected by the First Amendment. See id. at 1137-38. After the case went back to the district court, the government moved to dismiss and both parties sought summary judgment in their favor. The district court re-affirmed its prior decision in an unpublished order. See Humanitarian Law Project v. Reno, No. CV 98-01971 ABC, 2001 U.S. Dist. LEXIS 16729 (C.D.Cal. Oct. 3, 2001). The district court entered 1128 a permanent injunction against enforcing AEDPA's prohibition on providing "personnel" and "training" to designated organizations. See id. at 38. Both parties appealed. On appeal, in addition to renewing previously raised arguments, Plaintiffs also raised a Fifth Amendment due process challenge, arguing that AEDPA section 2339B imposes vicarious liability because it does not contain a mens rea element. On October 26, 2001, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("USA PATRIOT Act"), Pub.L. No. 107-56, § 805(a)(2), 115 Stat. 272 (Oct. 26, 2001). The USA PATRIOT Act amended AEDPA's definition of "material support or resources" to include the prohibition against providing "expert advice or assistance" to a designated foreign terrorist organization. See 18 U.S.C. § 2339A(b) and § 2339B(g)(4). On August 27, 2003, Plaintiffs filed a separate complaint in the district court (CV-03-06107-ABC; appeal No. 05-56846), challenging AEDPA's ban on providing "expert advice or assistance" to a designated foreign terrorist organization. The district court found that term to be unconstitutionally vague, but not overbroad. See Humanitarian Law Project v. Ashcroft, 309 F.Supp.2d 1185 (C.D.Cal. 2004). The district court granted Plaintiffs's request for injunctive relief. See id. at 1204. Both parties appealed. On December 3, 2003, we affirmed the district court's holding that the terms "training" and "personnel" were void for vagueness. See Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir.2003) ("HLP II"), vacated, 393 F.3d 902 (9th Cir.2004). A majority of the panel also read into the statute a mens rea requirement holding that, "to sustain a conviction under § 2339B, the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a foreign terrorist organization or that the donor had knowledge of the organization's unlawful activities that caused it to be so designated." Id. at 403. The parties sought, and we granted, en banc review of HLP II. See Humanitarian Law Project v. United States Dep't of Justice, 382 F.3d 1154 (9th Cir.2004). On December 17, 2004, three days after the en banc panel heard oral argument, Congress passed the Intelligence Reform and Terrorism Prevention Act ("IRTPA") which amended AEDPA. As amended, AEDPA now provides in part: Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. 18 U.S.C. § 2339B(a)(1) (emphasis added). The term "material support or resources" includes: any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials. 18 U.S.C. § 2339A(b) (emphasis added). In enacting IRTPA, Congress amended the definition of "material support or resources" to include an additional ban on providing "service." See id. Congress 1129 also defined for the first time the terms "training" and "expert advice or assistance," 18 U.S.C. § 2339(A)(b)(2)-(3), and clarified the prohibition against providing "personnel" to designated organizations, 18 U.S.C. § 2339B(h). Post-IRTPA, "training" refers to "instruction or teaching designed to impart a specific skill, as opposed to general knowledge." 18 U.S.C. § 2339A(b)(2). "Expert advice or assistance" encompasses "advice or assistance derived from scientific, technical or other specialized knowledge." 18 U.S.C. § 2339A(b)(3). "Personnel" includes "1 or more individuals" who "work under th[e] terrorist organization's direction or control or [who] organize, manage, supervise, or otherwise direct the operation of that organization." 18 U.S.C. § 2339B(h). AEDPA, as amended by IRTPA, narrows the definition of "personnel" by providing that "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction or control." Id. (emphasis added). Further, IRTPA provides that AEDPA's prohibition on providing "material support or resources" to a designated foreign terrorist organization includes a mens rea requirement. To violate the statute, a person who provides "material support or resources" to a designated organization must know that (1) "the organization is a designated terrorist organization," (2) "the organization has engaged or engages in terrorist activity," or that (3) "the organization has engaged or engages in terrorism."[2] 18 U.S.C. § 2339B(a)(1). Lastly, AEDPA, as amended by IRTPA, gives the Secretary of State discretion to authorize (with the concurrence of the Attorney General) certain forms of support[3] otherwise proscribed under section 2339B(a) unless such support "may be used to carry out terrorist activity." 18 U.S.C. § 2339B(j). Because of the amendments to AEDPA contained in IRTPA, the en banc panel, on December 21, 2004, "vacate[d] the judgment and injunction [of the HLP II panel] regarding the terms `personnel' and `training,' and remanded [this case] to the district court for further proceedings." See Humanitarian Law Project v. United States Dep't of State, 393 F.3d 902, 902 (9th Cir.2004) ("HLP en banc"). The en banc panel also affirmed the district court's rulings on the rest of Plaintiffs' First Amendment challenges "for the reasons set out in [HLP I]," and vacated the decision in HLP II. Id. On April 1, 2005, we remanded Plaintiffs' separate challenge to the term "expert advice or assistance" to the district court to consider IRTPA's impact on the litigation. On remand, the district court consolidated the two cases (the "personnel" and "training" challenge and the "expert advice and assistance" challenge). Plaintiffs also challenge IRTPA's newly added term "service." The parties thereafter filed cross-motions for summary judgment. On July 25, 2005, the district court granted in part and denied in part the summary judgment motions in the consolidated cases. See 1130 Humanitarian Law Project v. Gonzales, 380 F.Supp.2d 1134 (C.D.Cal.2005) ("DC-HLP III"). The district court held that the terms "training" and "service" are unconstitutionally vague. Id. at 1152. With respect to the term "expert advice or assistance," the district court held that the "other specialized knowledge" part of the definition is void for vagueness, but that the "scientific" and "technical" knowledge part of the definition was not vague. Id. at 1151 & n. 23. The district court also held that the newly-added definition of "personnel" found in AEDPA section 2339B(h) cured the vagueness of that term. Id. at 1152. The district court rejected the rest of Plaintiffs' challenges and granted partial summary judgment for the government. See id. at 1155. Both parties timely appealed. II. STANDARD OF REVIEW We review the district court's order granting summary judgment de novo. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact. See id. The district court's determination that a statute is unconstitutionally vague is reviewed de novo. See United States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir.2005). III. DISCUSSION A. Specific Intent In their prior appeals, Plaintiffs argued that AEDPA section 2339B(a) violates their Fifth Amendment due process rights because that section does not require proof of mens rea to convict a person for providing "material support or resources" to a designated foreign terrorist organization. See HLP-II, 352 F.3d at 394. In HLP-II, we read the statute to require that the donor of the "material support or resources" have knowledge "either of an organization's designation or of the unlawful activities that caused it to be so designated." Id. at 402-03. In December 2004, Congress passed IRTPA that revised AEDPA to essentially adopt our reading of AEDPA section 2339B to include a knowledge requirement. Thus, post-IRTPA, to convict a person for providing "material support or resources" to a designated foreign terrorist organization, the government must prove that the donor defendant "ha[d] knowledge that the organization is a designated terrorist organization, that the organization has engaged or engages in terrorist activity, or that the organization has engaged or engages in terrorism." 18 U.S.C. § 2339B(a) (citations omitted). As explained above, on December 21, 2004, the en banc panel vacated our judgment in HLP II, and remanded the case to the district court for further proceedings in light of IRTPA. See HLP en banc, 393 F.3d 902. The district court's decision on remand is now the matter before us. Plaintiffs argue that IRTPA does not sufficiently cure AEDPA section 2339B's mens rea deficiency. They contend that section 2339B(a) continues to violate due process because it does not require the government to prove that the donor defendant acted with specific intent to further the terrorist activity of the designated organization. Plaintiffs urge us to invalidate the statute or, alternatively, to read a specific intent requirement into the statute. "In our jurisprudence guilt is personal." Brown v. United States, 334 F.2d 488, 495 (9th Cir.1964) (internal quotations and citation omitted). Thus, we must "construe [a criminal] statute in light of the fundamental principle that a person is not criminally responsible unless `an 1131 evil-meaning mind' accompanies `an evil-doing hand.'" United States v. Nguyen, 73 F.3d 887, 890 (9th Cir.1995) (quoting Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). In other words, unless Congress expressly communicates its intent to dispense with a mens rea requirement and create strict criminal liability, the notion of "personal guilt" requires some culpable intent before criminal liability attaches. "[D]etermining the mental state required for commission of a federal crime requires `construction of the statute and . . . inference of the intent of Congress.'" Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (quoting United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 66 L.Ed. 604 (1922)). We remain mindful that we "should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute." Morissette, 342 U.S. at 263, 72 S.Ct. 240. In Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), the Supreme Court examined the constitutionality of a federal statute that criminalized the acquisition or possession of food stamps in any unauthorized manner. See id. at 420-21, 105 S.Ct. 2084. The statute contained no explicit mens rea requirement. The Court read into the statute the requirement that the government prove that "the defendant knew his conduct to be unauthorized by statute or regulations." Id. at 425-26, 105 S.Ct. 2084 (emphasis added) (noting that "to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct").[4] Here, AEDPA section 2339B(a) already requires the government to prove that the donor defendant provided "material support or resources" to a designated foreign terrorist organization with knowledge that the donee organization is a designated foreign terrorist organization, or with knowledge that the organization is or has engaged in terrorist activities or terrorism. 18 U.S.C. § 2339B(a). As amended, AEDPA section 2339B(a) complies with the "conventional requirement for criminal conduct awareness of some wrongdoing." Staples, 511 U.S. at 606-07, 114 S.Ct. 1793. Thus, a person with such knowledge is put on notice that "providing material support or resources" to a designated foreign terrorist organization is unlawful. Accordingly, we hold that the amended version of section 2339B comports with the Fifth Amendment's requirement of "personal guilt." Plaintiffs urge us to read a specific intent requirement into AEDPA section 2339B. They rely on Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). In Scales, the Supreme Court held that it was wrong to impute criminal guilt based on membership in an organization without proof that the defendant acted with culpable intent. See id. at 224-25, 81 S.Ct. 1469. As amended, section 2339B(a) does not proscribe 1132 membership in or association with the terrorist organizations,[5] but seeks to punish only those who have provided "material support or resources" to a foreign terrorist organization with knowledge that the organization was a designated foreign terrorist organization, or that it is or has engaged in terrorist activities or terrorism. Accordingly, unlike the statute in Scales which was silent with respect to requisite mens rea, section 2339B(a) exposes one to criminal liability only where the government proves that the donor defendant acted with culpable intent knowledge. At oral argument, Plaintiffs conceded that, were we to read into section 2339B a specific intent requirement that the person providing "material support or resources" do so with an intent to further the organization's unlawful goals (terrorist activity), we would be extending Scales. Because we find that acting with "knowledge" satisfies the requirement of "personal guilt" and eliminates any due process concerns, we decline Plaintiffs' invitation to extend the holding in Scales. Plaintiffs also rely on what they consider "vicarious criminal liability" cases where courts required proof of intent to further the group's illegal ends. Those cases are distinguishable. We disagree with Plaintiffs' characterization of section 2339B(a) as a statute that imposes "vicarious criminal liability." Vicarious liability involves holding one person accountable for the actions of another. Section 2339B(a) criminalizes the act of knowingly providing "material support or resources" to a designated foreign terrorist organization. Donor defendants are penalized for the criminal act of support. Donor defendants cannot be penalized under section 2339B(a) for the illegal conduct of the donee organization. Ferguson v. Estelle, 718 F.2d 730 (5th Cir.1983), is instructive. In Ferguson, defendants, participants in a violent riot, were prosecuted for arson committed by other rioters. See id. at 731-32. The court held that the state (Texas) could prosecute the defendants for arson even though they were not the arsonists. See id. at 731. The court noted that the statute at issue conformed with Scales's requirement of personal guilt because, to obtain a conviction, the state had to prove that the accused riot participants had specific intent to further the illegal aims of the rioters who committed arson. Id. at 736. Unlike the statute at issue in Ferguson, section 2339B(a) seeks to punish only those who commit the acts proscribed by the statute. In other words, a person who provides "material support or resources" to a designated foreign terrorist organization is liable for knowingly doing so in violation of section 2339B(a). Section 2339B(a) does not impose "vicarious criminal liability" because the statute cannot be invoked to punish the donor defendant for crimes committed by the donee foreign terrorist organization. A person cannot be convicted of murder under section 2339B(a) if the foreign terrorist organization committed an act of terrorism that took innocent lives. In sum, because section 2339B(a) does not impose "vicarious criminal liability," due process is satisfied without proof of specific intent to further the organization's illegal goals. Finally, in enacting IRTPA, Congress explicitly stated that knowledge of the organization's designation as a foreign terrorist 1133 organization, or knowledge of its engagement in terrorist activities or terrorism is required to convict under section 2339B(a). As the district court correctly observed, Congress could have, but chose not to, impose a requirement that the defendant act with the specific intent to further the terrorist activity of the organization, a requirement clearly set forth in sections 2339A and 2339C of the statute, but left out of section 2339B. See DC HLP III, 380 F.Supp.2d at 1146. Moreover, it is not our role to rewrite a statute, and we decline to do so here. See HLP I, 205 F.3d at 1137-38. Because there is no Fifth Amendment due process violation, we affirm the district court on this issue. B. Vagueness AEDPA section 2339B(a), as amended by IRTPA in December 2004, now criminalizes the act of knowingly providing "material support or resources" to a designated foreign terrorist organization. The amended statute defines "material support and resources" as: any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials. 18 U.S.C. § 2339A(b) (emphasis added). Plaintiffs argue that this amended definition is impermissibly vague because the statute fails to notify a person of ordinary intelligence as to what conduct constitutes "material support or resources." Specifically, Plaintiffs argue that the prohibitions on providing "training," "expert advice or assistance," "service," and "personnel" to designated organizations are vague because they are unclear and could be interpreted to criminalize protected speech and expression. The Due Process Clause of the Fifth Amendment requires that statutes clearly delineate the conduct they proscribe. See Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir.1998). While due process does not "require `impossible standards' of clarity," Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the "requirement for clarity is enhanced when criminal sanctions are at issue or when the statute abut[s] upon sensitive areas of basic First Amendment freedoms," Info. Providers' Coal. for the Def. of the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir.1991) (alteration in original) (internal quotation marks omitted). In such cases, the statute "must be sufficiently clear so as to allow persons of ordinary intelligence a reasonable opportunity to know what is prohibited." HLP I, 205 F.3d at 1137 (quoting Foti, 146 F.3d at 638) (internal quotation marks omitted). Moreover, "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." Foti, 146 F.3d at 638-39 (internal quotation marks omitted). Vague statutes are invalidated for three reasons: "(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of laws based on `arbitrary and discriminatory enforcement' by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms." Id. at 638. 1. "Training" In HLP I, we held that the term "training" under AEDPA was unconstitutionally 1134 vague. 205 F.3d at 1138. At the time of Plaintiffs' initial challenge in 1998, AEDPA provided no definition of the term "training." After we issued our opinion in HLP I in 2000, Congress amended the statute and defined the term "training" as "instruction or teaching designed to impart a specific skill, as opposed to general knowledge." 18 U.S.C. § 2339A(b)(2). On remand, Plaintiffs argued to the district court that the term "training" as defined by IRTPA remains unconstitutionally vague. Plaintiffs contended that persons of ordinary intelligence must discern whether the topic they wish to teach to members of designated organizations amounts to "teaching designed to impart a specific skill," which is criminalized, or "general knowledge," which is not. Specifically, Plaintiffs contended that they must guess whether training PKK members in how to use humanitarian and international human rights law to seek peaceful resolution of ongoing conflict amounts to teaching a "specific skill" or "general[ized] knowledge." The district court again agreed with Plaintiffs. The district court held that IRTPA did not cure the vagueness of the term "training," and enjoined the government from enforcing against Plaintiffs AEDPA's ban on providing "training." See DC-HLP III, 380 F.Supp.2d at 1150, 1156. We agree. Generally, we would start our vagueness analysis by considering the plain meaning of the language at issue. See Johnson v. Aljian, 490 F.3d 778, 780 (9th Cir.2007). However, where Congress expressly defines a term, the definition provided by Congress guides our vagueness analysis. See United States. v. Rowland, 464 F.3d 899, 905 (9th Cir.2006). To survive a vagueness challenge, the statute must be sufficiently clear to put a person of ordinary intelligence on notice that his or her contemplated conduct is unlawful. See Foti, 146 F.3d at 638. Because we find it highly unlikely that a person of ordinary intelligence would know whether, when teaching someone to petition international bodies for tsunami-related aid, one is imparting a "specific skill" or "general knowledge," we find the statute's proscription on providing "training" void for vagueness. See HLP I, 205 F.3d at 1138 (finding the term "training" impermissibly vague because "a plaintiff who wishes to instruct members of a designated group on how to petition the United Nations to give aid to their group could plausibly decide that such protected expression falls within the scope of the term `training.'"); see also Info. Providers' Coalition, 928 F.2d at 874. Even if persons of ordinary intelligence could discern between the instruction that imparts a "specific skill," as opposed to one that imparts "general knowledge," we hold that the term "training" would remain impermissibly vague. As we previously noted in HLP I, limiting the definition of the term "training" to the "imparting of skills" does not cure unconstitutional vagueness because, so defined, the term "training" could still be read to encompass speech and advocacy protected by the First Amendment. See HLP I, 205 F.3d at 1138 (finding "training" void for vagueness because "it is easy to imagine protected expression that falls within the bounds of this term").[6] For the foregoing reasons, we reject the government's challenge and agree with the district court that the term "training" remains 1135 impermissibly vague because it "implicates, and potentially chills, Plaintiffs' protected expressive activities and imposes criminal sanctions of up to fifteen years imprisonment without sufficiently defining the prohibited conduct for ordinary people to understand." DC-HLP III, 380 F.Supp.2d at 1150 (citing Info. Providers' Coalition, 928 F.2d at 874). 2. "Expert Advice or Assistance" The district court previously invalidated the undefined term "expert advice or assistance" on vagueness grounds. The district court reasoned that the prohibition against providing "expert advice or assistance" could be construed to criminalize activities protected by the First Amendment. Id. at 1151. The government appealed. We now have the benefit of IRTPA's language while reviewing this appeal. IRTPA defines the term "expert advice or assistance" as imparting "scientific, technical, or other specialized knowledge." 18 U.S.C. § 2339A(b)(3). The government argues that the ban on "expert advice or assistance" is not vague. The government relies on the Federal Rules of Evidence's definition of expert testimony as testimony based on "scientific, technical, or other specialized knowledge." Fed.R.Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-91, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The government argues that this definition gives a person of ordinary intelligence reasonable notice of conduct prohibited under the statute. Plaintiffs contend that the definition of "expert advice or assistance" is vague as applied to them because they cannot determine what "other specialized knowledge" means. We agree with the district court that "the Federal Rules of Evidence's inclusion of the phrase `scientific, technical, or other specialized knowledge' does not clarify the term `expert advice or assistance' for the average person with no background in law." DC-HLP III, 380 F.Supp.2d at 1151. At oral argument, the government stated that filing an amicus brief in support of a foreign terrorist organization would violate AEDPA's prohibition against providing "expert advice or assistance." Because the "other specialized knowledge" portion of the ban on providing "expert advice or assistance" continues to cover constitutionally protected advocacy, we hold that it is void for vagueness. See HLP I, 205 F.3d at 1137-38; NAACP v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (noting that vagueness and overbreadth depend on "the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application"). The portion of the "expert advice or assistance" definition that refers to "scientific" and "technical" knowledge is not vague. Unlike "other specialized knowledge," which covers every conceivable subject, the meaning of "technical" and "scientific" is reasonably understandable to a person of ordinary intelligence. See Houghton Mifflin Reading Spelling and Vocabulary Word Lists (5th Grade), http:// www-kes. stjohns.k12.fl.us/wordlists/5th/vocab2.htm (including "technical" as a fifth-grade vocabulary word); see also Tennessee Department of Education Third Grade Science Vocabulary, http://jc-schools.net/tutorials/vocab/sci-3.htm (including "scientific method" on third-grade vocabulary list). 3. "Service" IRTPA amended the definition of "material support or resources" to add the prohibition on rendering "service" to a designated foreign terrorist organization. 1136 There is no statutory definition of the term "service." Plaintiffs argue that proscribing "service" is vague because each of the other challenged provisions could be construed as a provision of "service." The district court agreed. We adopt the district court's holding and its reasoning. See DC-HLP III, 380 F.Supp.2d at 1151-52. The term "service" presumably includes providing members of PKK and LTTE with "expert advice or assistance" on how to lobby or petition representative bodies such as the United Nations. "Service" would also include "training" members of PKK or LTTE on how to use humanitarian and international law to peacefully resolve ongoing disputes. Thus, we hold that the term "service" is impermissibly vague because "the statute defines `service' to include `training' or `expert advice or assistance,'" and because "`it is easy to imagine protected expression that falls within the bounds' of the term `service.'" Id. at 1152. 4. "Personnel" In HLP I, we concluded that "personnel" was impermissibly vague because the term could be interpreted to encompass expressive activity protected by the First Amendment. HLP I, 205 F.3d at 1137. We stated that, "[i]t is easy to see how someone could be unsure about what AEDPA prohibits with the use of the term `personnel,' as it blurs the line between protected expression and unprotected conduct." Id. We observed that "[s]omeone who advocates the cause of the PKK could be seen as supplying them with personnel. . . . But advocacy is pure speech protected by the First Amendment." Id. As stated above, in 2004, Congress passed IRTPA which amended AEDPA. IRTPA added a limitation to the ban on providing "personnel." 18 U.S.C. § 2339B(h). Section 2339B(h) clarifies that section 2339B(a) criminalizes providing "personnel" to a foreign terrorist organization only where a person, alone or with others, "[work]s under that terrorist organization's direction or control or . . . organize[s], manage[s], supervise[s], or otherwise direct[s] the operation of that organization." Section 2339B(h) also states that the ban on "personnel" does not criminalize the conduct of "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives." Id. As amended by IRTPA, AEDPA's prohibition on providing "personnel" is not vague because the ban no longer "blurs the line between protected expression and unprotected conduct." HLP I, 205 F.3d at 1137. Unlike the version of the statute before it was amended by IRTPA, the prohibition on "personnel" no longer criminalizes pure speech protected by the First Amendment. Section 2339B(h) clarifies that Plaintiffs advocating lawful causes of PKK and LTTE cannot be held liable for providing these organizations with "personnel" as long as they engage in such advocacy "entirely independently of th[ose] foreign terrorist organization[s]." 18 U.S.C. § 2339B(h). Because IRTPA's definition of "personnel" provides fair notice of prohibited conduct to a person of ordinary intelligence and no longer punishes protected speech, we hold that the term "personnel" as defined in IRTPA is not vague. C. Overbreadth Plaintiffs argue that the terms "training," "personnel," "expert advice or assistance" and "service" are substantially overbroad. The district court rejected Plaintiffs' challenge. See DC-HLP III, 380 F.Supp.2d at 1152-53. We affirm. A statute is facially overbroad when its application to protected speech is 1137 "substantial, not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications." Virginia v. Hicks, 539 U.S. 113, 119-20, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks and citations omitted). The Supreme Court held in Hicks that "[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech." Id. at 124. The Court reasoned that the "concern with chilling protected speech attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct." Id. (internal quotation marks and citations omitted). We have previously held that AEDPA's prohibition against providing "material support or resources" to a designated organization "is not aimed at interfering with the expressive component of [Plaintiffs'] conduct but at stopping aid to terrorist groups." HLP I, 205 F.3d at 1135. Thus, because the statute is not aimed primarily at speech, an overbreadth challenge is more difficult to show. However, we still conduct the Hicks analysis. That is, we decide whether the material support statute's application to protected speech is substantial when compared to the scope of the law's plainly legitimate applications. See Hicks, 539 U.S. at 118-19, 123 S.Ct. 2191. Section 2339B(a)'s ban on provision of "material support or resources" to designated foreign terrorist organizations undoubtably has many legitimate applications. For instance, the importance of curbing terrorism cannot be underestimated. Cutting off "material support or resources" from terrorist organizations deprives them of means with which to carry out acts of terrorism and potentially leads to their demise. Thus, section 2339B(a) can legitimately be applied to criminalize facilitation of terrorism in the form of providing foreign terrorist organizations with income, weapons, or expertise in constructing explosive devices. See HLP I, 205 F.3d at 1133. The Supreme Court cautioned in Hicks that "there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct." Hicks, 539 U.S. at 119, 123 S.Ct. 2191. Were we to restrain the government from enforcing section 2339B(a) that prohibits individuals in the United States from providing "material support or resources" to foreign terrorist organizations, we would potentially be placing our nation in danger of future terrorist attacks. Moreover, although Plaintiffs may be able to identify particular instances of protected speech that may fall within the statute, those instances are not substantial when compared to the legitimate applications of section 2339B(a). Thus, because AEDPA section 2339B is not aimed at expressive conduct and because it does not cover a substantial amount of protected speech, we hold that the prohibition against providing "material support or resources" to a foreign terrorist organization is not facially overbroad. D. Licensing Scheme IRTPA added section 2339B(j), an entirely new section, to AEDPA. Section 2339B(j) allows the Secretary of State, with the concurrence of the Attorney General, to grant approval for individuals and organizations to carry out activities that would otherwise be considered providing "material support or resources" to designated foreign terrorist organizations. 18 U.S.C. § 2339B(j). Section 2339B(j) states that no one can be prosecuted under the terms "`personnel,' `training,' or `expert 1138 advice or assistance' if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General." 18 U.S.C. 2339B(j). The exception limits the scope of discretion by providing only that the "Secretary of State may not approve the provision of any material support that may be used to carry out terrorist activity." Id. Plaintiffs argue that this provision constitutes an unconstitutional licensing scheme. We disagree. Courts may entertain pre-enforcement facial challenges to a licensing scheme where the law has a "close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 759, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). A licensing scheme is facially invalid if the "licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speaker." Id. The relevant censorship risks include "self-censorship by speakers in order to avoid being denied a license to speak" and the "difficulty of effectively detecting, reviewing, and correcting content-based censorship `as applied' without standards by which to measure the licensor's action." Id. In our first decision, we rejected Plaintiffs' challenge to the licensing scheme in another portion of AEDPA that allows the Secretary of State to designate a group as a foreign terrorist organization. See HLP I, 205 F.3d at 1136-37. We held that the Secretary of State's discretion to designate a group as a foreign terrorist organization was not unconstitutional. See id. We reasoned that "AEDPA does not regulate speech or association per se. Rather, the restriction is on the act of giving material support to designated foreign organizations." Id. at 1136-37. We reach the same conclusion here. Section 2339B(j) gives the Secretary of State the discretion to approve the provision of "material support or resources." It does not regulate speech per se. Rather, the statute permits the Secretary of State to authorize the otherwise prohibited provision of "material support or resources" to a designated foreign terrorist organization. Indeed, we clarified in HLP I that contributions of "material support or resources" to foreign entities designated as foreign terrorist organizations should not be equated with political expression and association itself, even if such organizations are engaged in political expression. See HLP I, 205 F.3d at 1134-35 (contrasting the Buckley doctrine, where monetary support is a proxy for speech and is therefore a constitutionally protected activity). Thus, we hold that the discretion given to the Secretary poses no "real and substantial threat" to Plaintiffs' protected expression or their expressive conduct. See City of Lakewood, 486 U.S. at 759, 108 S.Ct. 2138. We recognize that it is possible for the Secretary to exercise his or her discretion in a way that discriminates against the donor of "material support or assistance." For example, the Secretary could conceivably exempt from prosecution a person who teaches peacemaking skills to members of Hezbollah, but deny Plaintiffs immunity from prosecution if they teach the same peacemaking skills to PKK. However, when evaluating the constitutionality of a licensing scheme, we look at how closely the prior restraint, on its face, regulates constitutionally protected activity. Here, even though it is possible for the Secretary to refuse to exercise his or her discretion 1139 to exempt from prosecution a disliked speaker, any such power is incidental. The statute does not give the Secretary "substantial power to discriminate based on the content or viewpoint of speech" or the identity of the speaker. Id. (emphasis added). Moreover, in Plaintiffs' case, any potential for content or viewpoint-based discrimination or discrimination based on the identity of the speaker is significantly reduced because the government is enjoined from enforcing those provisions of the statute we hold vague. Thus, because Plaintiffs are already immune from prosecution for protected speech, the danger that the Secretary can base his or her exercise of discretion on Plaintiffs' identity or the content or viewpoint of Plaintiffs' message is almost non-existent. Accordingly, we affirm the district court's holding that section 2339B(j) does not have a close enough nexus to protected speech to allow a facial challenge. IV. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. NOTES [*] Michael B. Mukasey is substituted for his predecessor, Alberto R. Gonzales, as Attorney General of the United States, pursuant to Fed. R.App. P. 43(c)(2). [1] Plaintiffs who support PKK want: (1) to train members of PKK on how to use humanitarian and international law to peacefully resolve disputes, (2) to engage in political advocacy on behalf of Kurds who live in Turkey, and (3) to teach PKK members how to petition various representative bodies such as the United Nations for relief. Plaintiffs who support LTTE want: (1) to train members of LTTE to present claims for tsunami-related aid to mediators and international bodies, (2) to offer their legal expertise in negotiating peace agreements between the LTTE and the Sri Lankan government, and (3) to engage in political advocacy on behalf of Tamils who live in Sri Lanka. [2] This language essentially adopts our holding in HLP II, where we held that "to sustain a conviction under § 2339B, the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a foreign terrorist organization or that the donor had knowledge of the organization's unlawful activities that caused it to be so designated." HLP II, 352 F.3d at 403. [3] Section 2339B(j) allows the Secretary of State to exempt from prosecution persons who may otherwise be held liable for providing "training," "expert advice or assistance," and "personnel." 18 U.S.C. § 2339B(j). [4] The other two cases Plaintiffs rely on, Staples, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608, and United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), also involved statutes that did not contain an explicit mens rea requirement. In Staples, the Supreme Court interpreted the statute punishing possession of an unregistered machine gun to require knowledge that the gun he or she possessed is unregistered. See Staples, 511 U.S. at 619, 114 S.Ct. 1793. Similarly, in X-Citement Video, the Court interpreted the term "knowingly" to require that defendant knew that the persons appearing in a sexually explicit video were minors. See X-Citement Video, 513 U.S. at 78, 115 S.Ct. 464. However, as in Liparota, the Court required that, in the absence of a specific mens rea requirement, the government prove the defendant acted knowingly. [5] Although section 2339B(a) does not punish mere membership, the statute does prohibit the paying of membership dues. See HLP I, 205 F.3d at 1134 (rejecting Plaintiffs' argument that "the First Amendment requires the government to demonstrate a specific intent to aid an organization's illegal activities before attaching liability to the donation of funds[]"). [6] In deciding previously raised challenges such as vagueness, we are bound by our decision in HLP I. See Murdoch v. Castro, 489 F.3d 1063, 1067 (9th Cir.2007) ("`[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'").	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4105 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CEDRIC ANTOINE MCKENITH, a/k/a Antoine Cedric McKenith, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, Chief District Judge. (7:14-cr-00026-D-1) Submitted: September 30, 2015 Decided: October 8, 2015 Before DUNCAN, KEENAN, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Robert E. Waters, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cedric Antoine McKenith appeals the 180-month sentence imposed by the district court after he pled guilty to selling a firearm and ammunition to a felon, in violation of 18 U.S.C. § 922(d)(1) (2012), and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2012). McKenith’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he has found no meritorious grounds for appeal but raising as a potential issue the substantive reasonableness of McKenith’s sentence. McKenith has filed a pro se supplemental brief arguing that the district court erred in determining his relevant conduct at sentencing and in applying the Sentencing Guidelines. The Government has moved to dismiss pursuant to the appellate waiver in McKenith’s plea agreement. McKenith argues that the waiver is invalid and does not apply to the claims asserted in his pro se brief. We grant the Government’s motion to dismiss and dismiss the appeal. Pursuant to a plea agreement, a defendant may waive his appellate rights under 18 U.S.C. § 3742 (2012). United States v. Archie, 771 F.3d 217, 221 (4th Cir. 2014), cert. denied, 135 S. Ct. 1579 (2015). A waiver will preclude an appeal of “a specific issue if . . . the waiver is valid and the issue being appealed is within the scope of the waiver.” Id. Whether a 2 defendant validly waived his right to appeal is a question of law that we review de novo. United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). Our review of the record leaves us with no doubt that McKenith knowingly and voluntarily entered his guilty plea and waived his appellate rights. Although McKenith argues that his waiver is invalid because he was unaware of the facts the district court would find at sentencing, the district court fully explained the sentencing procedures and was not required to make these determinations prior to accepting McKenith’s plea. See United States v. Thornsbury, 670 F.3d 532, 538 (4th Cir. 2012) (holding that defendant, through his waiver, “assumed the risk of unforeseen legal errors involving his sentence”). Moreover, the sentencing claims asserted in counsel’s Anders brief and McKenith’s pro se brief fall within the scope of McKenith’s valid waiver. * * McKenith notes that his waiver reserved his right to appeal from an above-Guidelines sentence and argues that his sentence, which was within the Guidelines range calculated by the district court, exceeded the Guidelines range that would have resulted had his sentencing challenges been sustained. However, McKenith’s appellate waiver only reserved “the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing” (Plea Agreement (PACER No. 69) at 1-2), not the right to appeal from a sentence in excess of the Guidelines range that McKenith believes is applicable. Moreover, the waiver expressly stated that it encompassed “any issues that relate to the establishment of the advisory Guideline range.” (Id. at 1). 3 Pursuant to Anders, we have reviewed the entire record for any unwaived meritorious grounds for appeal and have found none. Accordingly, we grant the Government’s motion to dismiss and dismiss the appeal. This court requires that counsel inform McKenith, in writing, of his right to petition the Supreme Court of the United States for further review. If McKenith requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on McKenith. 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 4	{ "pile_set_name": "FreeLaw" }
66 F.3d 313 U.S.v.Harry Dascenzo NO. 95-5055 United States Court of Appeals,Third Circuit. Aug 09, 1995 Appeal From: D.N.J., No. 92-00322, Politan, J. 1 APPEAL DISMISSED.	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Dominguez, 2017-Ohio-476.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 27095 : v. : T.C. NO. 09CR1410 : DAVID DOMINGUEZ : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the ___10th___ day of _____February_____, 2017. ........... MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee DAVID DOMINGUEZ, Reg. #617-072, London Correctional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant ............. DONOVAN, J. {¶ 1} This matter is before the Court on the pro se April 27, 2016 Notice of Appeal of David Dominguez. Dominguez appeals from the March 30, 2016 “Decision Overruling Defendant’s Motion for Re-Sentencing.” We hereby affirm the judgment of the trial court. {¶ 2} On May 20, 2009, Dominguez was indicted on one count of aggravated -2- vehicular homicide (driving under suspension), in violation of R.C. 2903.06(A)(2)(a), a felony of the second degree; three counts of vehicular assault, in violation of R.C. 2903.08(A)(2)(b), felonies of the fourth degree; one count of aggravated assault (serious physical harm), in violation of R.C. 2903.12(A)(1), a felony of the fourth degree; and one count of aggravated assault (deadly weapon), in violation of R.C. 2903.12(A)(2), a felony of the fourth degree. Dominguez pled not guilty on May 26, 2009, and he executed a time waiver on July 7, 2009. {¶ 3} On August 26, 2009, Dominguez pled guilty to all of the offenses. His Judgment Entry of Conviction provides that he received a mandatory seven year sentence for aggravated vehicular homicide; one and a half years on each vehicular assault offense; and one and a half years on each aggravated assault offense. The court ordered the sentences on the vehicular assault offenses to be served concurrently with each other and consecutively with the sentences imposed for aggravated vehicular homicide and aggravated assault. Finally, the court ordered that the sentences for aggravated assault to be served concurrently with each other and consecutively with the sentences for aggravated vehicular homicide and vehicular assault, for an aggregate term of 10 years. Dominguez did not file a direct appeal. {¶ 4} On May 25, 2012, Dominguez filed a pro se “Motion to Alter, Amend or Vacate a Void Sentence Pursuant to Ohio Revised Code 2941.25,” asserting that his sentence was contrary to law and void, since his offenses were allied offenses of similar import subject to merger. The State did not respond. On July 9, 2012, the trial court overruled Dominguez’s motion, noting that as “an initial matter, even if a sentencing error had occurred, such an error is not jurisdictional and would not render his conviction void. -3- Secondly, Defendant pled guilty to each offense and his sentence complies with Ohio Civ.R. 32(C) [sic].” Dominguez did not appeal from the denial of his May 2012 motion. {¶ 5} On November 5, 2012, Dominguez filed a “Motion for Resentencing (Oral Hearing Requested).” The motion provided that Dominguez’s offenses arose from a bar fight in which Dominguez was attacked by three people. The motion provided that he was choked and hit in the face, and that the offenses occurred when he “tried to pull away in his vehicle.” The motion provided that Dominguez “now requests that the Court hold a hearing to determine if indeed his multiple sentences were for allied offense subject to merger as is required by R.C. 2941.25 and the case law interpreting it.” The State opposed the motion, asserting that even if the court erred in imposing sentence, the sentences “would be merely voidable – not void.” The State asserted that Dominguez’s motion was barred by the doctrine of res judicata, since Dominguez did not file a direct appeal. {¶ 6} On December 19, 2013, Dominguez filed a pro se “Motion to Vacate Judgement,” (sic) asserting that the court’s “failure to Merge allied offenses * * * amounted to plain error.” On June 12, 2015, Dominguez filed a pro se “Motion for Re-Sentencing, Pursuant to Crim.R. 52(B) Trial court committed {Plain Error} in failing to conduct a Merger Hearing pursuant to R.C. 2941.25.” He argued that he “was convicted of several offenses that all were committed at the same time within the same incident.” On June 17, 2015, the State filed “State’s Memorandum Contra Defendant’s Motion to Vacate Judgement [sic] and Defendant’s Motion for Re-Sentencing Pursuant to Crim.R. 52(B).” The State asserted that res judicata applied to bar Dominguez’s “claim that his crimes should have merged under R.C. 2941.25.” The State further asserted that Dominguez’s -4- “claim of plain error is also precluded by res judicata.” On July 2, 2015, Dominguez filed a pro se “Response to State of Ohio’s Memorandum Contra to Defendant’s Motion for Re[-]sentencing.” Dominguez asserted that “[t]he current motion is about the failure of the trial court to hold the [Mandatory Hearing] as required by the Statute. Not so much as the Merger itself, but the failure to hold the Mandatory Hearing in the present case, constituted Plain Error Pursuant to Crim.R. 52(B) regardless of whether it was brought to the attention of the court in this case.” Dominguez requested that the court hold a hearing. {¶ 7} On September 23, 2015, the trial court issued a “Decision Overruling Defendant’s Motion to Vacate Judgment and Defendant’s Motion for Re-Sentencing Pursuant to Crim.R. 52(B),” which provides: “Specifically, the Court finds the doctrine of [r]es judicata controlling.” The court noted that “[b]ecause the Defendant could have raised his allied-offense argument in a direct appeal, res judicata precludes him from doing so now.” The court noted that Sate v. Johnson, 128 Ohio St.3d 153, 2010-Ohio- 6314, 942 N.E.2d 1061 “is of no benefit to the Defendant because ‘[a] new judicial ruling may be applied only to cases that are pending on the announcement date * * ,’ ” and not retroactively. Finally, the court determined that Dominguez’s “claim of plain error is also precluded by res judicata.” {¶ 8} Dominguez appealed the trial court’s decision, and this Court determined in part as follows: * * We express no opinion as to the merits of the allied-offense issue or as to whether the record does demonstrate a reasonable probability that allied offenses subject to merger exist. We cannot reach these issues in -5- the context of Dominguez’s post-conviction motions, which were the subject of the trial court’s September 23, 2015 ruling. The trial court correctly recognized that res judicata precludes consideration of Dominguez’s allied- offense argument, even in the context of plain error, because he could have raised the issue on direct appeal. * * * State v. Dominguez, 2d Dist. Montgomery No. 26853, 2016-Ohio-5051, ¶ 10. {¶ 9} On March 3, 2016, Dominguez filed his pro se “Motion for Re-Sentencing Pursuant to R.C. 2967.28 request to correct sentence to improper imposition of Post Release Control.” Dominguez asserted in part as follows: This very district had found that using “up to” language when imposing post release control is error – and renders the post release control portion of the sentence void – where mandatory post release control for a specific number of years is required. See; State v. Adkins 2011 Ohio 2819, 2nd District. Wherefore, Defendant now request [sic] for a Re[-]Sentencing to require the trial court to specify the terms of Post Release Control. Appellant David Dominguez moves this Honorable Court to correct the October 30th 2009 Termination Entry, as that portion of his sentence was void due to the improper imposition of Post Release Control as required by Ohio Law pursuant to R.C. 2967.28. This court would be reasonable to grant defendant’s Motion for Re- Sentencing and allow the October 30th 2009 Termination Entry to be Corrected for the reasons stated herein. * * * -6- {¶ 10} The State did not respond to Dominguez’s March 3, 2016 motion. In its decision overruling Dominguez’s motion, the trial court determined as follows: * * * This Court has reviewed the relevant record and the Termination Entry. The Court on October 27, 2009 plainly informed the Defendant that he “will be required to serve a period of three years Post Release Control.” The Termination Entry, filed On October 30, 2009, specifically states “The Court notifies the defendant that, as part of this sentence, the defendant will be supervised by the parole Board for a Period of THREE years Post- Release Control after the defendant’s release from prison.” The Court finds that language plain and unambiguous. Accordingly, Defendant’s motion is NOT WELL-TAKEN and is OVERRULED. {¶ 11} Dominguez asserts the following assignment of error in the table of contents of his brief: First Assignment of Error NO. 1 THE TRIAL COURT ERRED BY FAILING TO MAKE STATUTORY FINDINGS AS TO THE CONSECUTIVE SENTENCES, PURSUANT TO R.C. 2929.14(C)(4) WHEN IMPOSING CONSECUTIVE SENTENCES. {¶ 12} In the body of his brief, Dominguez asserts as follows: Assignment of Error No. 1 THE TRIAL COURT ERRED BY FAILING TO PROPERLY IMPOSE THE MANDATORY PORTIONS OF POST RELEASE CONTROL AS STATUTORY [sic] REQUIRED PURSUANT TO R.C. 2967.28(B). {¶ 13} The body of Dominguez’s brief is addressed exclusively to the imposition of -7- post-release control. His argument regarding consecutive sentencing was not raised before the trial court, and we will not consider it as it is not properly before us. Dominguez asserts in part as follows: In the present case, defendant asserts that the trial court erred when it failed to properly impose Post Release control at sentencing. Now comes the Defendant {David Dominguez} acting Pro Se for this proceeding only. Defendant asserts to this Honorable Court that pursuant to R.C. 2967.28(b) This Honorable Court failed to properly impose post release control. Here is Why! Defendant asserts that pursuant to R.C. 2967.28 the trial court is required to impose a “Mandatory” Three years post release control. * * * Defendant only argues the Mandatory portion of his sentence as being Void and therefore contrary to Ohio Law, wherefore his only intent is to bring this Court’s awareness to the error within his sentence in spite of being sentenced to a felony two sentence. {¶ 14} The State responds that “the trial court informed Dominguez that he would be required to serve a period of three years post-release control, and that language is mirrored in the termination entry – that he would be supervised for a period of three years after his release from imprisonment.” The State asserts, “Moreover, the exclusion of the word ‘mandatory’ in relation to his post-release control sanction is not determinative.” The State asserts that the “mandatory nature of the term was stated, and Dominguez was on notice that he was required to be supervised for three years by the parole board.” {¶ 15} R.C. 2967.28 governs post-release control and provides: -8- *** (B) Each sentence to a prison term for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is an offense of violence and is not a felony sex offense shall include a requirement that the offender be subject to a period of post- release control imposed by the parole board after the offender's release from imprisonment. * * * Unless reduced by the parole board pursuant to division (D) of this section when authorized under that division, a period of post-release control required by this division for an offender shall be of one of the following periods: * (2) For a felony of the second degree that is not a felony sex offense, three years; * {¶ 16} As the trial court indicated, Dominguez’s sentencing transcript reflects that the previous trial court advised Dominguez at sentencing regarding post-release control. Specifically, the court noted, “I am required to advise you about post-release control.” The court then indicated as follows: “Following your release from prison, you will be required to serve a period of three years post-release control under the supervision of the parole board.” {¶ 17} Dominguez’s October 30, 2009 Termination Entry provides: “The Court notifies the defendant that, as a part of this sentence, the defendant will be supervised by the Parole Board for a period of THREE years Post-Release Control after the defendant’s -9- release from imprisonment.” We conclude that the trial court complied with the mandate of R.C. 2967.28 by including a requirement that Dominguez be subject to post-release control imposed by the parole board for a period of three years after his release from imprisonment. Accordingly, Dominguez’s assigned error is overruled, and the judgment of the trial court is affirmed. ............. FROELICH, J. and BROGAN, J., concur. (Hon. James A. Brogan, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Meagan D. Woodall David Dominguez Hon. Richard S. Skelton	{ "pile_set_name": "FreeLaw" }
219 F.Supp.2d 645 (2002) Lawrence I. LIVORNESE, M.D., David M. Rogers, M.D., and Chestnut Hill Cardiology Consultants, Ltd., Plaintiffs, v. The MEDICAL PROTECTIVE CO., Defendant/Third-Party Plaintiff, v. Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund, and John Reed, Third-Party Defendants. No. 01-CV-3124. United States District Court, E.D. Pennsylvania. July 16, 2002. 646 Robert E. Slota, Law Offices of Robert E. Slota, Bryn Mawr, PA, for Plaintiffs. Kevin H. Wright, Wright, Young & McGilvery, Blue Bell, PA, for Defendants. MEMORANDUM AND ORDER SCHILLER, District Judge. This action arises from a medical malpractice suit litigated in state court, resulting in a judgment entered against the current Plaintiffs: Dr. Lawrence I. Livornese, Dr. David M. Rogers, and Chestnut Hill Cardiology Consultants, Ltd. ("the Doctors"). The Doctors then commenced the instant action against their primary insurer, Defendant The Medical Protective Company ("MedPro"), for breach of contract, negligence and bad faith, based on MedPro's conduct in the underlying litigation. MedPro subsequently impleaded Third-Party Defendants the Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund and John Reed (collectively "the CAT Fund") for contribution and/or indemnity. Presently before the Court is MedPro's motion to dismiss Plaintiffs' bad faith claim. For the reasons set forth below, I grant MedPro's motion. I. BACKGROUND[1] On May 19, 1999, the Philadelphia Court of Common Pleas entered a $2,798,924 judgment against the Plaintiffs, based on their professional negligence and/or malpractice occurring in 1992.[2] That award encompassed not only the jury's original verdict of $2,085,000 but also substantial delay damages, pursuant to Pennsylvania Rule of Civil Procedure 238. Thereafter, on August 24, 1999, Plaintiffs' insurer, MedPro, paid $400,000 into court toward the judgment, tendering its $200,000 policy limits for each doctor. At least a portion of the judgment has yet to be paid, and postjudgment interest continues to accrue. In their Amended Complaint, Plaintiffs contend that MedPro, though providing its policy limits, breached its contract, acted in bad faith and negligently handled the underlying suit. In light of Plaintiffs' claims, MedPro impleaded the CAT Fund. The CAT Fund, a statutorily created agency, may provide up to $1,000,000 in coverage to Pennsylvania-based medical professionals incurring professional liability, after the primary insurer has tendered its policy limits. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, MedPro moved to dismiss the Doctors' bad faith claim. II. LAW AND DISCUSSION A. Standard for Rule 12(b)(6) Motion to Dismiss Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint that "fails to state a claim 647 upon which relief can be granted." FED. R.CIV.P. 12(b)(6). A reviewing court should only grant a Rule 12(b)(6) motion if, under any reasonable interpretation of the facts as alleged, the complainant could not earn relief. See Jairett v. First Montauk Sec. Corp., 203 F.R.D. 181, 184 (E.D.Pa. 2001). Thus, the court must assume all facts averred in the complaint as true and grant those facts the benefit of all reasonable inferences. See Berkovitz v. United States, 486 U.S. 531, 547, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); see also Lites v. Great Amer. Insur. Co., No. Civ.A.00-CV-525, 2000 WL 875698 at 2 (E.D.Pa. June 23, 2000). The court need not defer, however, to a complaint's "bald assertions" or "legal conclusions." See Pennsylvania v. Rand Fin. Corp., No. Civ.A.99-4209, 2000 WL 1521589 at 2 (E.D.Pa. Oct. 3, 2000) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997)). B. Discussion The Pennsylvania legislature has created a statutory remedy for an insurance company's bad faith conduct: 42 Pa. C.S.A. § 8371 ("Section 8371"). Section 8371 provides: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insured. 42 PA. CONS.STAT.ANN. § 8371 (1982 & Supp.1996). Though left undefined by the statute, "bad faith toward the insured" consists of: (1) a frivolous or unfounded refusal to pay, (2) a failure to investigate into the facts, or (3) a failure to communicate with the insured.[3]See Frog, Switch Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742, 751 n. 9 (3d Cir.1999). In the case at bar, Plaintiffs only allege bad faith based on MedPro's refusal to pay delay damages and postjudgment interest.[4] To establish liability for bad faith refusal to pay, an insured must demonstrate both of the following: (1) the insurer lacked a reasonable basis for denying benefits, and (2) the insurer knew or recklessly disregarded its lack of such reasonable basis.[5]See Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 233 (3d Cir.1997) (describing bad faith's elements); see also Nelson v. State Farm Mut. Auto. Ins. Co., 988 F.Supp. 527, 529 (E.D.Pa.1997) (noting two-part bad faith test suggested by Pennsylvania courts); Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 381 (2002) (describing elements of bad faith); Terletsky v. Prudential Pro. & Cas. Ins. Co., 437 Pa.Super. 648 108, 649 A.2d 680, 688 (1994) (defining bad faith). The standard's first prongfocusing on the reasonableness of the insurer's conduct requires an objective analysis. See Williams v. Hartford Cas. Ins. Co., 83 F.Supp.2d 567, 574 (E.D.Pa. 2000), aff'd, 261 F.3d 495 (3d Cir.2001). Therefore, a court need consider only whether any reasonable basis existed for the insurer's conduct and not whether the insurance company itself relied on a reasonable foundation. See Id. As a matter of law, if some reasonable basis did exist, that insurer cannot have acted in bad faith, under Section 8371. See Id. Here, Plaintiffs could not establish that MedPro acted in bad faith because, as a matter of law, they cannot satisfy the first prong of the bad faith analysis. MedPro proffers that it had no responsibility to pay delay damages or postjudgment interest because: (1) under the Pennsylvania Constitution's Contract Clause, the statute codifying an insurer's liabilities for delay damages and postjudgment interest relative to the CAT Fund, 40 P.S. § 1301.702(j)[6] ["Section 702(j)"], does not apply to its contract, and (2) under Pennsylvania Law, MedPro's insurance policy limits its liability beyond its policy limits. I find MedPro's first argument reasonable enough to remove any possibility of bad faith in this matter. The Pennsylvania Constitution's Contract Clause, which adheres to the meaning of the United States Constitution's Contract Clause, provides: "[n]o ... law impairing the obligation of contracts ... shall be passed." PA. CONST. art. I, § 17; see Transport Workers, Local 290 v. SEPTA, 145 F.3d 619, 624 (3d Cir.1998) (noting that courts interpret Pennsylvania Constitution's Contract Clause and United States Constitution's Contract Clause in same manner). To evaluate the Contract Clause's potential application, a court first must determine whether the change in state law has "operated as a substantial impairment of a contractual relationship." Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978). If such a substantial impairment exists, the court then must identify whether the impairing law serves a legitimate and important public purpose one which would reasonably justify adjusting the parties' rights. See Transport Workers, Local 290, 145 F.3d at 621. Based on this standard, Section 702(j)'s applicability to the current contract appears uncertain, with various reasonable interpretations existing on either side of the issue. Section 702(j) clearly impacts the insurer/patient contract, by allocating non-contractual financial obligations to the insurer. The particular extent of this impairment and the factoring public interests, though, have yet to be resolved by the Pennsylvania courts. In light of these considerations, as a matter of law, MedPro had a reasonable basis for believing Section 702(j) did not apply to its contract and, therefore, for withholding delay damage and postjudgment interest payment. Even if I did not find MedPro's Contract Clause argument reasonable, though, other issues of relevant unsettled law would make MedPro's refusal to pay reasonable. In particular, Pennsylvania courts have struggled to identify the contours of Section 702(j). See, e.g., Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 702 A.2d 850 (1998) (discussing insurer's obligations when it cannot control settlement negotiations); Lahav v. Main Line Ob/Gyn Assocs., 556 Pa. 245, 727 A.2d 1104, 1107 (1999) (discussing whether 649 CAT Fund can be liable beyond its statutory cap); Hershey Medical Center v. Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund, 763 A.2d 945, 953 (2000) (noting issues in determining responsibilities in litigation and settlement of matters involving insurance). Even if Section 702(j) does apply, MedPro's particular financial obligations to Plaintiffs for delay damages and postjudgment interest remain less than clear. Moreover, I note that, where MedPro's responsibilities were clear, it paid its $400,000 policy limit into court immediately after entry of judgment. Thus, I cannot find that MedPro, facing these circumstances, could have acted in bad faith for refusing payment of delay damages and postjudgment interest. At most, MedPro's conduct may amount to breach of contract. The remainder of this lawsuit will determine this and other matters, including MedPro's particular obligations to its insured. Therefore, I dismiss Plaintiffs' bad faith count. An appropriate Order follows. NOTES [1] I have presented the facts in the light most favorable to the Plaintiffs, as required when considering a defendant's Rule 12(b)(6) motion to dismiss. [2] The underlying medical malpractice lawsuit commenced under the caption of Gunn v. Livornese in the Philadelphia Court of Common Pleas, Civil Action No. 92-11-0330. [3] Courts should construe Section 8371 broadly, as to effectuate the statute's purpose of deterring bad faith conduct. See Krisa v. Equitable Life Assur. Soc., 109 F.Supp.2d 316, 320 (M.D.Pa.2000). Therefore, while several Pennsylvania courts seem to define bad faith only as "an unfounded or frivolous refusal to pay," I adopt the Third Circuit's perspective, which construes Section 8371 more broadly. See Frog, 193 F.3d at 751 n. 9. [4] MedPro incorporates by reference a number of general allegations better directed toward its breach of contract and negligence claims, which it does not address in its brief on the bad faith issue. [5] A party must establish an insurer's bad faith through "clear and convincing" evidence. See Polselli, 23 F.3d at 750. Thus, the evidence forwarded must be "so clear, direct, weighty, and convincing `so as to enable the court to make its decision with a clear conviction.'" See id. at 752 (quoting United States Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306, 309 (3d Cir.1985)). [6] Section 702(j) states in relevant part: "The basic insurance carrier or self-insurer shall be responsible for its proportionate share of delay damages and postjudgment interest [relative to the CAT Fund]."	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6924 KEITH EARL GODWIN, Petitioner - Appellant, v. COMMONWEALTH OF VIRGINIA, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:14-cv-00186-RAJ-DEM) Submitted: October 16, 2014 Decided: October 22, 2014 Before MOTZ, WYNN, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Keith Earl Godwin, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Keith Earl Godwin seeks to appeal the district court’s order dismissing as successive his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Godwin has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3	{ "pile_set_name": "FreeLaw" }
666 F.Supp. 1346 (1987) Phyllis BREWER, as Guardian ad litem for David M. BREWER, a minor, Plaintiffs, v. CITY OF EL CERRITO; Patrick Reeve, Chief of Police, City of El Cerrito; El Cerrito Police Department; Gary Yancy, District Attorney, County of Contra Costa; District Attorney's Office, County of Contra Costa; Harold Franklin, District Attorney's Investigator, County of Contra Costa; Lt. David Edmondson, and Capt. Bruce Nelson, all individually, and as agents, servants, and/or employees of the El Cerrito Police Department, The City of El Cerrito or The County of Contra Costa, Defendants. No. C-85-4514-CAL. United States District Court, N.D. California. March 24, 1987. As Amended July 31, 1987. 1347 Stephen Bruce Bley, Inc., Bley and Bley, John F. Prentice, Robert E. Gyemant, Lisa P. Foster, Niesar, Kregstein & Cecchini, San Francisco, Cal., for plaintiffs. Thomas A. Watrous, Gordon, DeFraga, Watrous and Pezzaglia, Martinez, Cal., for Reeves, City of El Cerrito, El Cerrito Police Dept., Edmunds & Nelson. James Fitzgerald, III, Sellar, Hazard, Snyder, Kelly & Fitzgerald, Walnut Creek, Cal., for Contra Costa County, Yancy & Franklin. AMENDED OPINION REGARDING MOTIONS FOR DISMISSAL AND SUMMARY JUDGMENT LEGGE, District Judge. Plaintiff, a juvenile male, alleges that he was sexually molested by a police officer in the officer's home. Plaintiff's mother brings this suit on behalf of her son against various city and county employees and against the city and the county in which the incident occurred. Plaintiff alleges violations of his civil rights, claiming that defendants, acting under color of state law, deprived him of his Eighth and Fourteenth Amendment rights. Plaintiff also alleges various state tort claims. I. Defendants have moved either to dismiss the action under Fed.R.Civ.P. 12(b)(6) or for summary judgment under Rule 56.[1] The motions were briefed, argued, and submitted. The court has reviewed the record, the arguments of counsel, and the applicable authorities. For the reasons stated below, the court concludes that: (1) plaintiff's complaint fails to state a cause of action for a civil rights violation under the Eighth Amendment; (2) plaintiff's evidence fails to create a genuine issue of material fact as to his Fourteenth Amendment claim; (3) since the 1348 deprivation of a constitutional or federally recognized right is a predicate to a civil rights violation, judgment must be entered for defendants on plaintiff's federal claims; and (4) the court should exercise its discretion to dismiss the pendent state claims.[2] II. A defendant is liable for a civil rights violation when, acting under color of state law, he deprives another individual of a federal right secured by the United States Constitution or by federal law. 42 U.S.C. § 1983; Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Plaintiff alleges that the defendants deprived him of his Eighth and Fourteenth Amendment rights. III. Plaintiff claims that defendants falsely imprisoned him in violation of the Eighth Amendment when they asked him to go into the home of police officer Bell without having an adequate way to monitor what occurred inside the house or to extricate plaintiff should something adverse occur. Plaintiff and defendants had reason to believe that Bell had previously engaged in sexual misconduct and that he had invited plaintiff into his house for that purpose. Plaintiff and defendants agreed that plaintiff would accept Bell's invitation in an attempt to obtain evidence against Bell. Plaintiff charges that while so falsely imprisoned, he was subjected to cruel and unusual punishment specifically, sexual molestation in violation of the Eighth Amendment. Historically, any consideration of whether a form of punishment was cruel and unusual has been limited to the criminal setting. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (incarceration without medical care); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (execution for murder); Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) ($20 fine for public drunkenness). In its latest decision on the scope of Eighth Amendment protection, the U.S. Supreme Court declined to expand the application of the proscription against cruel and unusual punishment to corporal punishment in public schools. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). These decisions of the U.S. Supreme Court preclude plaintiff's Eighth Amendment claim here. Plaintiff argues that the determinative factor in Ingraham was that public schools had certain safeguards against the imposition of cruel and unusual punishment that are not present in the prison system. The Ingraham Court did recognize that school children have little need for the protections of the Eighth Amendment. It observed that schools are open institutions, unlike prisons, so that students are not physically restrained from leaving the premises. Further, the Court noted that there are other students and teachers present who may witness and protest abuses. Ingraham, 430 U.S. at 670, 97 S.Ct. at 1412. While these elements played a role in the Court's decision in Ingraham, they were not necessarily the determinative factors. The Court, in reviewing the original scope and subsequent application of the Eighth Amendment, concluded that its protective force only applied to those convicted of crimes. Id. at 664, 97 S.Ct. at 1408;[3]see also United States v. Ritter, 752 F.2d 435, 438 (9th Cir.1985). Although plaintiff here found himself alone with a police officer, and may have been effectively detained against his will, this sort of detention is not analogous to the formal incarceration of a prisoner. Further, the actions of defendants in devising and implementing the plan to entrap 1349 Bell, while unwise in retrospect, cannot be characterized as a form of "punishment" of plaintiff. Since plaintiff has failed to establish a violation of his Eighth Amendment rights, he has failed to state a cognizable civil rights claim on that basis. IV. Plaintiff also charges that his Fourteenth Amendment right not to be deprived of liberty without due process of law was violated. Plaintiff alleges that Bell's molestation deprived him of a liberty interest. The right to be free from unjustified intrusions on one's person has been recognized as a protected liberty interest under the Fourteenth Amendment. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986); Ingraham v. Wright, 430 U.S. at 673, 97 S.Ct. at 1413. Plaintiff asserts that defendants deprived him of this liberty interest without due process of law when they abused their governmental powers by placing plaintiff in a potentially dangerous situation without having a means to monitor his safety or to rescue him if necessary. Deliberate abuses of governmental power which serve to deprive a person of a protected interest can constitute a denial of due process. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986); Davidson, 106 S.Ct. at 670. However, the U.S. Supreme Court has also held that where government officials are merely negligent in causing unintended injury to life, liberty or property, the due process clause of the Fourteenth Amendment is not implicated. Daniels, 106 S.Ct. at 665; Davidson, 106 S.Ct. at 670. So, the nature of defendants' conduct is vital to whether plaintiff has a Fourteenth Amendment claim here. Plaintiff has inconsistently pleaded the culpability of these defendants. In one portion of his complaint plaintiff charges that Franklin, who devised the undercover plan, knew "or in the exercise of ordinary care should have known" that plaintiff could be molested by Bell. In another portion of the complaint, plaintiff alleges that defendants maliciously and intentionally deprived him of his constitutional rights. Whether plaintiff has pleaded negligent or intentional conduct, he is not entitled to relief against these defendants under the Fourteenth Amendment. If plaintiff's claim is negligence, then his cause of action is insufficient as a matter of law. The Supreme Court, in both the Daniels and the Davidson decisions, expressly stated the negligence of government officials cannot constitute a deprivation of due process. If plaintiff has pleaded intentional misconduct, then he has alleged a cognizable claim. However, on summary judgment, this court must look beyond the pleadings in order to determine whether plaintiffs have shown a genuine issue of material fact or whether defendants are entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The initial burden is on the moving parties to demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Evidence is construed in favor of the party opposing the motion and that party is given the benefit of all favorable inferences. Anderson, 106 S.Ct. at 2513; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Defendants have provided evidence supporting their contention that they did not act intentionally to deprive plaintiff of his constitutional rights. This evidence includes the declaration of Harold Franklin, the memorandum of Bruce Nelson, and the deposition of David Brewer. Since defendants have set forth that evidence in support of their motion for summary judgment, plaintiff cannot rest on the allegations of his complaint but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 106 S.Ct. at 2553; Adickes, 398 U.S. at 160, 90 S.Ct. at 1610. The record demonstrates that plaintiff has not presented any evidence 1350 to support his assertion that defendants acted intentionally, and he has thus failed to raise a genuine issue of material fact. Plaintiff agreed to work with defendants to gather evidence against the officer. He did so voluntarily, and with the concurrence of his mother and an adult friend of the family (although plaintiff now argues that the consent was not properly given). Plaintiff was provided with a voice-activated recorder, although not with a "wire" for simultaneous transmission. Another police officer, who was acting as "backup" for plaintiff, monitored the house. And plaintiff was instructed to leave the house if overt sexual advances were made, although plaintiff says he did not do so because he became frightened. These acts do not constitute an intentional deprivation of rights. Even though defendants' actions were taken pursuant to a plan, it was a plan plaintiff agreed to. And it is not the formation of a plan that is the gravamen of plaintiff's complaint, but how well or how badly the plan was performed. Even accepting all of plaintiff's arguments about how the plan was deficient, and how defendants' various acts or omissions were deficient, they do not demonstrate an intentional deprivation of rights. Accordingly, summary judgment must be granted for these defendants on plaintiff's Fourteenth Amendment claim. In Daniels, 106 S.Ct. at 667 n. 3, and Davidson, 106 S.Ct. at 670-71, the Supreme Court left open the question of whether gross negligence or recklessness can form the basis of a due process claim. However, neither the Supreme Court nor the Ninth Circuit has answered that question affirmatively. Absent such a holding, this court declines to adopt those standards here. And even if one of those standards were applicable, this court does not believe that the undisputed facts stated above could rise to the level of gross negligence or recklessness. V. The defendants have also moved to dismiss the pendent state claims for lack of subject matter jurisdiction, since the federal claims are being dismissed. Pendent jurisdiction over state claims exists where a sufficiently substantial federal claim is alleged and where state and federal claims "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), "The ultimate lack of merit of the federal claim does not mean that the claim was not substantial, for purposes of conferring jurisdiction." In re Nucorp Securities Litigation, 772 F.2d 1486, 1490 (9th Cir.1985) (citing, C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3564, at 73 (2d ed. 1984)). Only where a federal claim is "absolutely devoid of merit" or "obviously frivolous" is the court without jurisdiction. Id. at 1490. In light of the uncharted legal terrain recognized by Davidson and Daniels, plaintiff's federal allegations were substantial enough to confer subject matter jurisdiction on this court. This court has therefore jurisdiction over plaintiff's state claims. But the decision to exercise that jurisdiction is within the court's discretion. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Nucorp, 772 F.2d at 1491; see, Wright, Miller and Cooper, § 3567.1, at 114. The federal courts are divided on whether pendent state claims should be retained when the federal claims are dismissed prior to trial. Compare, Jones v. Community Redevelopment Agency, 733 F.2d 646, 651 (9th Cir.1984) ("[w]hen federal claims are dismissed before trial, as Jones' section 1983 claims was here, pendent state claims also should be dismissed"); Hodge v. Mountain States Telephone & Telegraph Co., 555 F.2d 254, 261 (9th Cir.1977) (reversing district court which had exercised discretion to decide state claims after summary judgment granted on federal claims); with Nucorp, 772 F.2d at 1491 (endorsing district court's retention of pendent claims as "not only sound but commendable discretion"); Aydin Corp. v. Loral Corp., 718 F.2d 897, 904 (9th Cir.1983) (district court acted within discretion to reach pendent claims where court and litigants had spent considerable 1351 time on state claims); see also, Ingram Corp. v. J. Ray McDermott & Co., Inc., 698 F.2d 1295, 1320 (5th Cir.1983); Jason v. Fonda, 698 F.2d 966, 967 (9th Cir.1982); Gray v. International Ass'n, etc., 447 F.2d 1118, 1120 (6th Cir.1971); Gem Corrugated Box Corp. v. National Kraft Container Corp., 427 F.2d 499, 501 n. 1 (2d Cir.1970); Wright, Miller & Cooper § 3567.1 at 133-36. The decision on whether to retain jurisdiction, like the decision to exercise pendent jurisdiction generally, should be guided by concerns of judicial economy, fairness and convenience. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Nucorp, 772 F.2d at 1491. This action has been pending in this court for nearly two years. Discovery is virtually completed and the case is almost ready for trial. On the other hand, all federal claims have now been dismissed and the only claims to be litigated are state law claims. The substantive and procedural law to be applied, particularly regarding the liability of municipalities and their agents, is state law. The court is also advised that the parties can be at trial in Contra Costa Superior Court as rapidly as in this court. The court is concerned that plaintiff's state law claims may be barred by California's six-month statute of limitations.[4] Cal. Govt.Code § 945.6. Other circuits have held that a district court abuses its discretion in dismissing a pendent state claim where the statute of limitations has already run. L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984); O'Brien v. Continental Illinois National Bank & Trust Co., 593 F.2d 54, 64-65 (7th Cir.1979); see, Wright, Miller & Cooper § 3567.1, at 127-32. Confronted with like situations, other federal circuits have endorsed a dismissal designed to insure plaintiff's day in court in the state forum. In Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768, 778 (D.C.Cir.1982), the appellate court instructed the district court to dismiss the pendent state claims on condition that plaintiff file a state court action, that defendant waive the statute of limitations, and that the parties stipulate to the admissibility of evidence from the federal action. Accord, Duckworth v. Franzen, 780 F.2d 645, 657 (7th Cir.1985), cert. denied, ___ U.S. ___, 107 S.Ct. 71, 73 L.Ed.2d 28 (1986). The court concludes that judicial economy, fairness and efficiency will be served by trying plaintiff's state law claims in state court. The court exercises its discretion to dismiss the pendent state claims upon the following conditions: 1. The defendants shall submit to the jurisdiction of the Superior Court of the State of California in and for the County of Contra Costa. 2. The defendants shall waive or toll all statutes of limitations for the period of time between the date of the filing of this action and the date of the final judgment resulting from this order. 3. The defendants shall consent to the use of the discovery taken in this action in the state court case. 4. The defendants shall stipulate with plaintiffs to obtain the earliest trial date available on the calendar of the court. VI. IT IS ORDERED that: (1) The motions to dismiss and for summary judgment of all defendants are GRANTED as to plaintiff's Eighth and Fourteenth Amendment claims. (2) Plaintiff's motion under Rule 60(b) is DENIED. The court has reviewed the purported new evidence and concludes that nothing is raised which changes the decisions made in the opinion and order of December 31, 1986. (3) The motions of all defendants to dismiss the pendent state claims are GRANTED. The court exercises its discretion to 1352 dismiss the state claims on the conditions set out above. NOTES [1] Defendant David Bell was the El Cerrito police officer who allegedly sexually molested plaintiff David Brewer. Bell later committed suicide and his estate has settled with plaintiff. Defendant Harold Franklin is an investigator in the Contra Costa District Attorney's Office. Contra Costa District Attorney Gary Yancey and the County of Contra Costa are also named as defendants. Franklin, Yancey and the County ("the Contra Costa defendants") moved to dismiss or for summary judgment on November 21, 1986. The court granted partial summary judgment for the Contra Costa defendants in an unpublished order and opinion filed December 31, 1986. The other defendants (the "El Cerrito defendants") include Captain Bruce Nelson, Lt. David Edmondson, El Cerrito Police Chief Patrick Reeve, the City of El Cerrito and the El Cerrito Police Department. At a hearing on February 26, 1987, the El Cerrito defendants moved for summary judgment on the federal claims. At that time, all defendants also moved to dismiss the pendent state claims. And plaintiff moved under Rule 60(b) for relief from the December 31, 1986 order dismissing the federal claims against the Contra Costa defendants. By order filed March 24, 1987, this court denied plaintiffs' motion for relief from dismissal and granted defendants' motions on both the federal and state claims. This opinion encompasses the court's rulings of December 31, 1986 and March 24, 1987. [2] The court acknowledges the assistance of Leon Tuan in the preparation of this opinion. [3] The Ingraham Court acknowledged that some punishments, though not labeled "criminal" by the state, may be sufficiently analogous to criminal punishments to justify Eighth Amendment protection. The Court suggested that persons involuntarily confined in mental or juvenile institutions may have that protection. Ingraham. 430 U.S. at 669 n. 37, 97 S.Ct. at 1411 n. 37. However, this case is far removed from those situations. [4] Defendants suggest that the statute might be equitably tolled under state law. Addison v. State, 21 Cal.3d 313, 146 Cal.Rptr. 224, 578 P.2d 941 (1978). Although Addison is a case closely on point to the present one, the doctrine of equitable tolling offers plaintiff only limited solace as the state court will not necessarily choose to invoke the equitable doctrine.	{ "pile_set_name": "FreeLaw" }
911 F.2d 724Unpublished 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.Larry SIMMONS, Plaintiff-Appellant,v.James N. ROLLINS, Warden, Fred E. Jordan, Jr., Defendants-Appellees. No. 89-6797. United States Court of Appeals, Fourth Circuit. Submitted Jan. 18, 1990.Decided Aug. 1, 1990. Appeal from the United States District Court for the District of Maryland, at Baltimore. Joseph C. Howard, District Judge. (C/A No. 89-1604-JH) Larry Simmons, appellant pro se. John Joseph Curran, Jr., Office of the Attorney General of Maryland, Baltimore, Md., for appellees. D.Md. AFFIRMED. Before WILKINSON and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: 1 Larry Simmons appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Simmons v. Rollins, C/A No. 89-1604-JH (D.Md. Aug. 17, 1989). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED	{ "pile_set_name": "FreeLaw" }
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 01-8002 IN RE STEPHEN L. SHELNUTT , MEMBER OF THE BAR. Before HOLDAWAY, STEINBERG, and GREENE, Judges. ORDER This matter is before the Court upon notice of discipline imposed against the respondent, Stephen L. Shelnutt, by the Circuit Court for the City of Alexandria, Commonwealth of Virginia, that suspended his license to practice law in the Commonwealth of Virginia for six months, up to and including August 31, 2001. This Court on April 3, 2001, ordered that the respondent show cause why he should not be suspended from practice before this Court for a period to run concurrently with his suspension in the Commonwealth of Virginia. See U.S. VET . APP . R. ADM . & PRAC. 4(c). The respondent has not responded to the Court's show-cause order. Hence, there has been no cause shown why the respondent should not be suspended from the practice of law before this Court, such suspension to run concurrently with his suspension in the Commonwealth of Virginia. Accordingly, it is ORDERED that Stephen L. Shelnutt is suspended from practice before this Court for a period to run concurrently with his suspension in the Commonwealth of Virginia, to wit, until August 31, 2001. The respondent is advised that in order for him to be permitted to resume practice before this Court, he must provide to the Clerk of the Court proof of reinstatement of his license to practice law in the Commonwealth of Virginia. See U.S. VET . APP . R. ADM . & PRAC. 7(a). DATED: July 10, 2001 PER CURIAM.	{ "pile_set_name": "FreeLaw" }
613 So.2d 1272 (1993) Charlie J. GILMORE, as Administrator of the Estate of Charlie M. Gilmore, deceased v. SHELL OIL COMPANY, a corporation, et al. 1910915. Supreme Court of Alabama. February 26, 1993. 1273 William P. Traylor III, Deborah S. Braden and P. Mark Petro of Yearout, Myers & Traylor, P.C., Birmingham, for appellant. C. William Gladden, Andrew J. Sinor, Jr. and Stephen E. Whitehead of Balch & Bingham, Birmingham, for appellees. INGRAM, Justice. Charlie J. Gilmore, as personal representative of the estate of Charlie M. Gilmore (the deceased, Charlie M. Gilmore, will hereinafter be called "Michael"), sued Shell Oil Company, T & P, Inc., Terry E. Parker, and Bobby McSwain, alleging that the defendants had negligently or wantonly allowed Michael, a purported business invitee, to fatally injure himself with a handgun that he had found on the defendants' premises. Gilmore also alleged that Parker negligently entrusted the handgun to McSwain and that the unguarded and accessible handgun created a private nuisance. 1274 Gilmore appeals from a summary judgment for the defendants. Gilmore argues that he presented sufficient evidence to defeat the defendants' motion for summary judgment; specifically, he says he presented evidence creating two genuine issues of material fact: (1) whether Michael's death was "suicide"; and (2) whether the defendants had breached their standard of care owed to Michael, who the plaintiff says was a business invitee. A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. A "genuine issue of material fact" is a disputed factual issue that is "outcome determinative." "A fact is outcome determinative if the resolution of that fact [before the trial court] will establish or eliminate a claim or defense...; if the fact is determinative of an issue to be tried, it is `material.'" John J. Coleman III, Summary Judgment in Alabama: The Nuances of Practice Under Rule 56, 20 Cumb.L.Rev. 1, 5 (1989) (citing William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 480 (1982) ("An issue is not material simply because it may affect the outcome. It is material only if it must inevitably be decided") (emphasis in original)). This Court, reviewing a summary judgment, will view the entire record, as it was before the trial court when the summary judgment was entered, in the light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala. 1991). In order to defeat a properly supported motion for summary judgment, the nonmovant must show that a genuine issue as to a material fact exists and that resolution of this disputed fact is determinative of an issue to be decided. This factual dispute must be created by "substantial evidence." See § 12-21-12, Ala.Code 1975. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). The facts of this case are as follows: Michael, who was 17 at the time of his death, was an acquaintance of McSwain, who was working at T & P, Inc., a Shell gasoline station/convenience store owned by Terry Parker. The plaintiff says Michael was at the store to visit McSwain. After arriving at the store, Michael went behind the cashier's counter to make some telephone calls. While he was behind the counter, McSwain was across the store sweeping the floor. McSwain testified that he looked up from his sweeping and saw that Michael had taken a handgun from beneath the counter. Parker, who had worked the shift before McSwain's shift, alleged that he had inadvertently left the handgun. Parker testified that he had brought the handgun to the store for his protection. The handgun was kept on a shelf under the cashier's counter toward the back of the shelf, where it could not be seen by customers in the store. According to McSwain, he looked up and saw Michael with the handgun. He testified that Michael had opened the chamber of the handgun and removed all the bullets. Michael then replaced one of the bullets, closed the chamber, put the handgun to his head, and pulled the trigger. The shot killed him. The dispositive issue on appeal is whether a genuine issue of material fact exists as to the cause of Michael's death, assuming, but not deciding, that Michael was a business invitee and further assuming that the presence of the handgun in an accessible area was a breach of the defendants' duty owed to Michael. This Court has held: "Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily 1275 prudent person ought reasonably to foresee would result in injury." Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976). "[H]owever negligent a party may have been in some particular, he is accountable only to those injured as a proximate result of such negligence. Where some independent agency intervenes and is the immediate cause of the injury, the party guilty of prior negligence is not liable." Hall v. Booth, 423 So.2d 184, 185 (Ala.1982). Additionally, this Court has long recognized that a defendant who creates a dangerous "condition" is not responsible for a plaintiff's injury that results from the intervention of another agency, if at the time of the defendant's original negligence the intervening agency could not reasonably be foreseen. See, e.g., City of Mobile v. Havard, 289 Ala. 532, 538, 268 So.2d 805, 810 (1972); Morgan v. City of Tuscaloosa, 268 Ala. 493, 496, 108 So.2d 342, 345 (1959); Garrett v. Louisville & N.R.R., 196 Ala. 52, 53, 71 So. 685, 686 (1916). In such cases, we have held that the defendant's negligence is not the "proximate cause" of the plaintiff's injury, and, therefore, that the defendant is not liable. Vines, 336 So.2d at 1339. Such an unforeseen agency, which breaks the chain of causation that otherwise might have linked the defendant's negligence to the plaintiff's injury, has been referred to as an "intervening efficient cause." See General Motors Corp. v. Edwards, 482 So.2d 1176, 1194 (Ala.1985). In order for conduct to be considered an intervening efficient cause, it must (1) occur after the defendant's negligent act, (2) be unforeseeable to the defendant at the time he acts, and (3) be sufficient to be the sole cause-in-fact of the plaintiff's injury. Id. at 1194-95; see also Vines, 336 So.2d at 1339. In Louisville & N.R.R. v. Maddox, 236 Ala. 594, 183 So. 849 (1938), this Court held, "The idea of contributory negligence presupposes negligence of the defendant, and contributory negligence, though it may be a contributing or concurring cause, can never be an efficient intervening cause to break the chain of causation flowing from the defendant's negligence and insulate the same." Id. at 601, 183 So. at 854 (opinion on rehearing). However, "the general rule, which is subject to certain exceptions, is that a plaintiff's own conduct may be a superseding [or intervening efficient] cause, absolving a negligent defendant from liability, even though [the plaintiff's] conduct amounts to contributory negligence.... However, in order to be a superseding cause, a plaintiff's negligence must be more than mere contributory negligence, ... and, in addition to being unforeseeable, such conduct must rise to such a level of culpability as to replace the defendant's negligence as the legal cause of the accident." 57A Am.Jur.2d Negligence § 650 (1989) (emphasis supplied). We now expressly adopt the general rule as stated in 57A Am.Jur.2d and hold that a plaintiff's conduct can constitute an intervening efficient cause, but only if, in addition to meeting the Edwards criteria set forth above for an intervening efficient cause, the plaintiff's conduct (1) is "so highly extraordinary or unexpected that it can be said to fall without the realm of reasonable foreseeability as a matter of law," 57A Am.Jur.2d Negligence § 652 (emphasis added); and (2) is more than mere contributory negligence and is of a higher culpability level than the defendant's negligence. Id. § 650. We distinguish this rule from the rule established in Maddox that the plaintiff's own negligence cannot be an intervening efficient cause. See Maddox, 236 Ala. at 601, 183 So. at 854. The defendants argue that Michael's conduct was an intervening efficient cause, breaking the chain of causation that otherwise might have linked the defendants' negligence and Michael's death. Assuming that Parker acted negligently and created a dangerous condition by leaving the handgun loaded and accessible, Michael's subsequent act of intentionally and deliberately shooting himself in the head was unforeseeable as a matter of law and was sufficiently culpable to supersede 1276 the defendants' negligence as the proximate cause of Michael's death. Gilmore argues that a fact question exists as to whether Michael's death was a "suicide." In his brief to this Court, Gilmore argues that there is a presumption against suicide and that evidence in the record supports the inference that Michael did not intend his own death. For example, McSwain testified that Michael was "happy-go-lucky" and that, moments before his death, Michael had been discussing his plans for the holidays, his plans to return to high school, and his plans to purchase tennis shoes. Gilmore testified that his son had never threatened or attempted to commit suicide and that he believes his son did not intentionally shoot himself. In Krieg v. Massey, 239 Mont. 469, 781 P.2d 277 (1989), the Montana Supreme Court held that "suicide," with certain exceptions, is a "deliberate intervening act exonerating the defendant from legal responsibility." Id., 239 Mont. at 471, 781 P.2d at 278. In Krieg, the plaintiff, Krieg, brought an action against the owners/operators (the Masseys) and the manager (Young) of an apartment complex where the plaintiff's decedent, Van Hoose, had committed suicide. The facts set out in the opinion indicate that Van Hoose told Young that he was experiencing pain in his leg and in his stomach. Young offered to take Van Hoose to a hospital, but stated that she told Van Hoose that they could not leave until Young's daughter arrived. A little while later, Young walked past Van Hoose's open door and found him walking around the room, waving a pistol. Young took the pistol away from Van Hoose, put it on the top of his closet, and then left the room. About an hour later, investigating a "thud," Young found that Van Hoose had killed himself with the pistol. Krieg, Van Hoose's personal representative, brought a wrongful death action against Young and the Masseys. The trial court entered a summary judgment for all the defendants; the plaintiff appealed to the Montana Supreme Court, which affirmed the judgment. On appeal, Krieg argued that when Young took the pistol away from Van Hoose, "she imposed upon herself a duty to prevent the suicide ... [and] she breached this duty because she was negligent in her intervention." Id., 239 Mont. at 472, 781 P.2d at 278. Krieg argued that Young could have prevented the suicide by taking the pistol with her from Van Hoose's room. In affirming the summary judgment, the Montana Supreme Court adopted the general rule that, in the area of civil liability for suicide, "[n]egligence actions for the suicide of another will generally not lie since the act [of] suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility." Id., 239 Mont. at 471, 781 P.2d at 278. The Krieg court noted that there are two exceptions to the general rule: "The first exception deals with causing another to commit suicide and is not applicable in the present case. The second exception allows the imposition of a duty to prevent suicide but only in a custodial situation where suicide is foreseeable [, typically in the case of] hospitals or prisons." Id. The first exception arises in cases where a defendant's conduct "causes a mental condition in the decedent that proximately results in an uncontrollable impulse to commit suicide or that prevents the decedent from realizing the nature of his act." Id., 239 Mont. at 473, 781 P.2d at 279 (citing Liability of Attorney for Suicide of Client Based on Attorney's Professional Act or Omission, 41 A.L.R.4th 352); see also Civil Liability for Suicide, 11 A.L.R.3d 751 (discussion and example of "irresistible impulse" decisions). This exception, as noted above, was not applicable to the facts of the Krieg case. Also, the Montana court held that the second exception did not apply because the facts of the case indicated that Young was not in a custodial relationship with Van Hoose and did not foresee, and, based upon her lack of expertise, could not have been expected to foresee, Van Hoose's suicide. On the issue of foreseeability, the Montana court noted that Young had testified "that she did not think [the decedent] should have the gun, but that she did not 1277 think he was planning on killing himself." Krieg, 239 Mont. at 473, 781 P.2d at 279. Further, the court noted, "nothing indicates that [Young] had any special training to foresee that Mr. Van Hoose intended suicide." Id. Therefore, the court concluded that no genuine issue of material fact existed regarding foreseeability. Id. In our own case, there is no evidence that the defendants had a special custodial relationship with Michael, nor is there any evidence that any of the defendants possessed expertise in the area of recognizing suicidal tendencies and preventing suicide. The manner of Michael's death is undisputed. Michael died as a result of his own deliberate action of placing a loaded gun to his head and pulling the trigger. In addition to the testimony of McSwain as to Michael's actions, we note that Michael's death certificate lists the cause of death as suicide, and the coroner testified that Michael died as a result of a "hard contact gunshot wound to the right temporal area," which is indicative, according to the coroner, of an intentional or deliberate shot, because accidental shootings do not usually have the gun touching the skin. Also, based upon his external examination of the wound, the coroner testified that the wound was probably self-inflicted, based upon the angle of the bullet, the gape of the skin at the point of entry, and the sooty deposits around the wound. The evidence presented by the defendants is sufficient to show that Michael's death was the result of his own intentional and deliberate, as opposed to merely negligent or accidental, act. No substantial evidence suggested otherwise. Therefore, the evidence must be taken as establishing that Michael's death was the foreseeable and natural consequence of his intentionally discharging a loaded handgun while it was pressed against the side of his head. We must conclude that the defendants made a prima facie showing that Michael committed suicide. The evidence presented by Gilmore, in opposition to the defendants' showing, consists largely of affidavits to the effect that Michael would not have committed suicide. These affidavits are from people who knew Michael and were close to him. However, this evidence is largely only speculation as to Michael's state of mind at the time he shot himself. We have held, "Mere speculation that an issue of fact exists is not enough to defeat a summary judgment motion, nor may the opposing party rest upon mere conclusory allegations to prove that a genuine issue of fact exists." Charles J. Arndt, Inc. v. City of Birmingham, 547 So.2d 397, 399 (Ala.1989). Therefore, we are compelled to hold that Gilmore has failed to present substantial evidence that a genuine issue of material fact exists as to whether Michael's death was a suicide. In a recent case, Watters v. TSR, Inc., 904 F.2d 378 (6th Cir.1990), a mother of a teenager who had committed suicide sued the manufacturers of the board game "Dungeons and Dragons," alleging that the board game had so dominated the mind of the teenager that it drove him to suicide. The Sixth Circuit Court of Appeals, holding that the suicide was an intervening cause, stated: "The fact is, unfortunately, that youth is not always proof against the strange waves of despair and hopelessness that sometimes sweep seemingly normal people to suicide, and we have no way of knowing that Johnny would not have committed suicide if he had not played Dungeons & Dragons.... "... Mrs. Watters' affidavit shows affirmatively that Johnny Burnett, who lived in her household throughout his life, never caused Mrs. Watters any problems. He went to school regularly, and he took care of a paper route. The record contains no affidavit from a psychiatrist or similar expert suggesting that he suffered from any psychosis. As far as the record discloses, no one had any reason to know that Johnny Burnett was going to take his own life. We cannot tell why he did so or what his mental state was at the time. His death surely was not the fault of his mother, or his school, or his friends, or the manufacturer of the game he and his friends so loved to play. Tragedies such as this 1278 simply defy rational explanation, and courts should not pretend otherwise." Id. at 384. The death of Michael Gilmore is also an unexplainable tragedy. We do not understand, nor do we attempt to rationalize, his deliberate and destructive final act. However, we recognize that such acts are not the ordinary and naturally flowing consequences of the defendants' negligent conduct in leaving the handgun under the cashier's counter where it was accessible to those persons who might find themselves behind the cashier's counter. What relieves the defendants of any liability for Michael's death is that Michael, by his own hands, acted intentionally and deliberately in a manner that was calculated to result in his own death. Except for circumstances where the relationship between a decedent and a defendant is such that we expect the defendant to take affirmative steps to protect the decedent from deliberate and self-destructive injury at the decedent's own hand, we do not expect the ordinary person to be able to predict, much less guard against and prevent, another person's deliberate and self-destructive actions. Therefore, we hold that, except in the previously discussed situations, suicide and/or deliberate and intentional self-destruction is unforeseeable as a matter of law, and civil liability will not be imposed upon a defendant for a decedent's suicide. While there may have been a fact question as to whether someone would be injured accidentally or negligently by the handgun, for example, by an unplanned discharge of the gun or even by a criminal act of a third party, it was unforeseeable as a matter of law that the handgun would be used to deliberately self-inflict a mortal wound. Because such an act was unforeseeable as a matter of law, we find that the questions of fact raised by Gilmore in opposition to the defendants' motion for summary judgment are not "genuine issues of material fact" and therefore will not defeat that properly supported motion. See Rule 56, Ala.R.Civ.P. The summary judgment in favor of the defendants is affirmed. AFFIRMED. HORNSBY, C.J., and SHORES and ADAMS, JJ., concur. HOUSTON, J., concurs specially. MADDOX and STEAGALL, JJ., concur in the result. HOUSTON, Justice (concurring specially). I find no initial legal liability on the part of any defendant, and I would affirm the summary judgment on that ground, although I do agree that Michael Gilmore's act was unforeseeable as a matter of law.	{ "pile_set_name": "FreeLaw" }
People v Mack (2019 NY Slip Op 05999) People v Mack 2019 NY Slip Op 05999 Decided on July 31, 2019 Appellate Division, Second 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 July 31, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. SHERI S. ROMAN JEFFREY A. COHEN ROBERT J. MILLER, JJ. 1995-05777 (Ind. No. 3486/94) [*1]The People of the State of New York, respondent, vRonald Mack, appellant. Ronald Mack, Elmira, NY, appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent. DECISION & ORDER Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated February 8, 1999 (People v Mack, 258 AD2d 534), affirming a judgment of the Supreme Court, Kings County, rendered June 1, 1995. ORDERED that the application is denied. The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277). RIVERA, J.P., ROMAN, COHEN and MILLER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
Filed 5/26/15 inewsource v. Super. Ct. Ca4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA INEWSOURCE, D067118 Petitioner, (San Diego County Super. Ct. No. 37-2014-00007070-CU-WM-CTL) v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; NORTH COUNTY TRANSIT DISTRICT, Real Party in Interest. ORIGINAL PROCEEDINGS in mandate. Joan M. Lewis, Judge. Petition granted in part and denied in part; request for judicial notice granted in part and denied in part. Sheppard, Mullin, Richter & Hampton and Guylyn R. Cummins for Petitioner. No appearance for Respondent. McDougal, Love, Eckis, Boehmer & Foley, Steven E. Boehmer and M. Anne Gregory for Real Party in Interest. Petitioner inewsource seeks disclosure of documents from real party in interest North County Transit District (the District) under the California Public Records Act (PRA). (Gov. Code, § 6250 et seq.)1 The documents at issue reflect the results of a "Leadership Assessment Program" conducted at the District's expense by the Rady School of Management at the University of California at San Diego. In response to inewsource's PRA request, the District declined to provide the documents on the grounds they were exempt from disclosure. The trial court agreed and denied inewsource's petition for writ of mandate compelling disclosure. Inewsource petitions this court for a writ of mandate directing the trial court to vacate its order, grant the petition, and compel disclosure. Inewsource contends the exemptions cited by the trial court, for personnel files (§ 6254, subd. (c)) and the PRA's "catch-all" provision (§ 6255, subd. (a)), are inapplicable. We agree in part, and therefore grant the petition in part, as we will explain. FACTUAL AND PROCEDURAL BACKGROUND Inewsource is a nonprofit organization based in San Diego, California, and engaged in investigative journalism. Inewsource publishes its content on the Internet and through its partnership with KPBS, a local public radio and television station. Among inewsource's subjects have been the management, operations, and finances of the District. 1 Further statutory references are to the Government Code unless otherwise specified. 2 Inewsource has published dozens of articles, Internet posts, and other items about the District. Created by the California Legislature in 1975, the District is a public entity that develops and operates mass transit services in the northern portion of San Diego County. These services include the COASTER commuter rail, the SPRINTER light rail, the BREEZE fixed-route bus system, the FLEX on-demand system, and the LIFT paratransit service. The District is supervised by a nine-member board of directors consisting of elected officials from eight cities in its service area and from San Diego County. In December 2013, 13 District senior management staff participated in a "Leadership Assessment Program" (Program) at the Rady School of Management at the University of California at San Diego. The participants attended the Program at the District's expense. The scope of work for the Program described it in part as follows: "A structured leadership assessment experience offers an opportunity to demonstrate skills and capabilities in a challenging environment and to receive feedback on that performance. . . . [¶] . . . [¶] . . . By providing specific, actionable evaluations and feedback, developmental activities can be targeted to skills that will make the greatest difference in the success of both the individual and the organization." The scope of work touts benefits of the Program for both the participating individuals and their organization. For individuals, the Program provides "a foundation for development planning," including (1) "[c]omprehensive, integrated feedback" from the Program, (2) "[a] summary of results and recommendations for ongoing development," and (3) "[a] comprehensive 360-degree feedback summary of how others 3 perceive the participant's skills and abilities." For the organization, the Program provides "a solid foundation for individual development and succession planning efforts" through (1) "[a] report on each participant detailing their strengths and development needs," (2) "[a]n evaluation of each participant on each of the organization's key competencies," and (3) "[a] talent management summary that shows where leadership strengths and development needs are greatest within a team of participants."2 The latter three items appear to comprise the documents at issue in this proceeding (hereinafter, the Rady documents). The participant reports are tailored to each individual and provide specific, personalized written feedback and evaluations along each of the categories (or "competencies") assessed. These categories include general managerial skill sets and more practical organizational competencies. The participant evaluation contains a table that provides a single rating in each category for each participant, along with the participant's name. (The participant evaluation is the first page of the Rady documents as submitted to this court.) The talent management summary contains a table that lists only the categories, not the participants, and shows how the organization as a whole fared in each category. Although the talent management summary is composed of the ratings of the individual participants, the ratings are reordered within each category such that an individual participant's ratings across each category cannot be reconstructed from the summary. No participant names are listed in the talent management summary. 2 The scope of work also notes that the Program achieves "[a] balance between business acumen and leadership characteristics, competencies and attributes." 4 (The talent management summary is the second page of the Rady documents as submitted to this court.)3 The District's human resources manager, Karen Tucholski, told participants that the results of the Program would be confidential. Tucholski said the results "were for professional development purposes only and would be part of each employee's personnel file accessible only by authorized [District] personnel such as Human Resources or the employee's supervisor." A year later, Brad Racino, an investigative reporter for inewsource, received information that District employees had participated in the Program. He filed a PRA request for "[a]ny and all studies or reports compiled by the Rady School of Management concerning [the District] in electronic format." Two days later, the District denied Racino's request on the grounds the requested documents were exempt as personnel files under section 6254, subdivision (c). Inewsource filed a petition for writ of mandate in the trial court seeking an order compelling disclosure of the Rady documents and other relief. The District opposed. In addition to the personnel records exemption, the District argued the Rady documents were exempt from disclosure under the PRA's "catch-all" exemption in section 6255, subdivision (a). 3 Even if the documents described in the scope of work do not correspond exactly to the Rady documents at issue here, we find the names used in the scope of work useful and will use them to refer to the Rady documents that have been submitted to us as we have described them. 5 After examining the Rady documents in camera, the trial court denied inewsource's petition. The court found that both exemptions urged by the District applied: "Having reviewed the records, the Court first finds that the Rady documents are 'personnel, medical, or similar files, . . .' Accordingly, the Court balances the privacy interests of the parties subject [to] these documents against the public interest in disclosure. The Court finds the balance weighs in favor of non-disclosure. Here, the records would not contribute to the public's understanding of government and would not shed light on what 'the government has been up to.' [¶] The Rady documents are not documents reflecting how [the District] conducts its business. Rather, the records represent an assessment of the individual's strengths and weaknesses in various tested areas and any recommendations relative thereto. Having reviewed these records, the Court finds them to be akin to performance evaluations and any public interest in the records would be minimal at best. [¶] . . . [¶] The Court further finds that the public interest in disclosure of these documents is outweighed by the public interest in nondisclosure. [(§ 6255, subd. (a).)] Assuming a public interest exists, the Court finds that . . . disclosure of these documents would have [a] detrimental effect on the management employees at [the District] by creating unhealthy comparisons and potential embarrassment between management employees and their subordinate employees." Inewsource petitioned this court for a writ of mandate directing the superior court to vacate its order, grant the petition, and compel disclosure of the Rady documents. We requested and received a sealed copy of the documents at issue, which we have reviewed. We issued an order to show cause and will now grant the petition in part. 6 DISCUSSION I As an initial matter, we must consider inewsource's request for judicial notice, which includes requests inewsource made to the trial court (but for which the trial court issued no ruling) and requests to this court in the first instance.4 Evidence Code section 459, governing requests for judicial notice in this court, provides in part as follows: "The reviewing court shall take judicial notice of: (1) each matter properly noticed by the trial court; and (2) each matter that the trial court was required to notice under [Evidence Code] Section 451 or 453. The reviewing court may take judicial notice of any matter specified in [Evidence Code] Section 452." (Evid. Code, § 459, subd. (a); see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) If a matter is properly subject to judicial notice, "[e]xclusionary rules of evidence do not apply except for [Evidence Code] Section 352 and the rules of privilege." (Evid. Code, § 454, subd. (b)(2).) Inewsource's first request for judicial notice in the trial court covered four news articles published by inewsource (and in some cases KPBS as well) concerning alleged incompetence and malfeasance at the District and one memorandum issued by the California Department of Industrial Relations discussing regulatory requirements related to personnel records. The fact that news articles have been published may be judicially 4 Prior to the issuance of our order to show cause in this matter, inewsource submitted an application for judicial notice. Because inewsource's motion for judicial notice supersedes the application, we deny the application as moot. 7 noticed under Evidence Code section 452, subdivisions (g) and (h). (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193 (Ragland).) However, a court may not take judicial notice of the truth of the matters stated therein. (Id. at pp. 193-194.) Similarly, official government records may be judicially noticed under Evidence Code section 452, subdivision (c), but the truth of the matters stated therein may not. (Ragland, supra, 209 Cal.App.4th at p. 193 ["Although the audit report is a government document, we may not judicially notice the truth of its contents."].) We further find that these matters have at least some relevance to the issues before the court. Upon the proper request of a party, the trial court was required to judicially notice the existence of the news articles and the state memorandum. (Evid. Code, § 453.) We are therefore required to do so as well. (Evid. Code, § 459, subd. (a).) Inewsource's second request for judicial notice in the trial court covered more than 30 documents. The existence of the news stories and Internet Web pages referenced in the request will be judicially noticed for the reasons we have already stated.5 (Evid. Code, §§ 452, subds. (g) & (h); 453, 459, subd. (a); see Ragland, supra, 209 Cal.App.4th at p. 193.) Similarly, the existence of the District correspondence, District e-mails, the District's annual report, a third-party audit commissioned by the District, and other District documents referenced in the request will be judicially noticed. (Evid. Code, 5 We will not take judicial notice of the Wikipedia page entitled "No bid contract" on the grounds the trial court was not required to judicially notice it because it had no relevance to the disposition of inewsource's petition. (People v. McKinzie (2012) 54 Cal.4th 1302, 1326 [" 'Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed.' "].) 8 §§ 452, subds. (c), (g) & (h); 453, 459, subd. (a); see Landstar Global Logistics, Inc. v. Robinson & Robinson, Inc. (2013) 216 Cal.App.4th 378, 388, fn. 4; Ragland, supra, 209 Cal.App.4th at p. 193.) The referenced portions of the Public Contract Code, sections 100 through 102, are subject to mandatory judicial notice. (Evid. Code, §§ 451, subd. (a); 459, subd. (a).) Again, we find that these matters have at least some relevance to the issues before the court. We will not take judicial notice of the existence or contents of the inewsource correspondence referenced in the request because they are not judicially noticeable as a fact or proposition in common knowledge or not reasonably subject to dispute. (See Evid. Code, § 452, subds. (g) & (h).) We also will not take judicial notice of District documents and correspondence filed in inewsource's exhibit appendix to its trial court writ petition. Those documents are already part of the record before this court, and judicial notice is unnecessary. Any objections made in the trial court have not been adequately urged on appeal and supported by reasoned argument and authority. They are therefore waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Inewsource's request for judicial notice in this court covers the District's business case justification for the Program, other District documents and correspondence, an Internet Web page published by the California Department of Human Resources, two California Regional Water Quality Board orders, portions of a Federal Transit Administration review of the District, and various inewsource news articles and Internet Web pages. Inewsource contends judicial notice of these documents is warranted under Evidence Code section 452. Inewsource did not seek judicial notice of these documents 9 in the trial court, claiming without explanation that "page constraints" prevented it from doing so. To the extent these documents are already part of the record, e.g., in inewsource's exhibit appendix, judicial notice is unnecessary as we have explained. As to documents not already part of the record, we decline to take judicial notice of these documents in these proceedings because inewsource did not request judicial notice in the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; Safeco Ins. Co. of America v. Superior Court (2009) 173 Cal.App.4th 814, 834, fn. 14.) II We now turn to the merits of inewsource's petition. "The PRA and the California Constitution provide the public with a right of access to government information. As [the Supreme Court] has explained: 'Openness in government is essential to the functioning of a democracy. "Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process." [Citation.]' [Citation.] In adopting the PRA, the Legislature declared that 'access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.' (§ 6250.) 'As the result of an initiative adopted by the voters in 2004, this principle is now enshrined in the state Constitution . . . .' [Citation.] The California Constitution, article I, section 3, subdivision (b)(1) provides: 'The people have the right of access to information concerning the conduct of the people's business, and therefore, the meetings 10 of public bodies and the writings of public officials and agencies shall be open to public scrutiny.' " (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 164.) The PRA "was passed for the explicit purpose of 'increasing freedom of information' by giving the public 'access to information in possession of public agencies' [citation]. Maximum disclosure of the conduct of governmental operations was to be promoted by the [PRA]." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651-652.) "In general . . . all public records are subject to disclosure unless the Legislature has expressly provided to the contrary." (Los Angeles Unified School Dist. v. Superior Court (2014) 228 Cal.App.4th 222, 238 (LAUSD).) "The Legislature has been 'mindful of the right of individuals to privacy.' (§ 6250.) Set forth in the [PRA] are numerous exceptions to the requirement of public disclosure, many of which are designed to protect individual privacy. (See § 6254.) In addition, a catchall exception applies if 'on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.' (§ 6255, subd. (a).) Unless one of the exceptions stated in the [PRA] applies, the public is entitled to access to 'any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency.' (§ 6252, subd. (e); see § 6253, subd. (a).)" (International Federation of Professional & Technical Engineers, Local 21, AFL–CIO v. Superior Court (2007) 42 Cal.4th 319, 329 (International Federation), fn. omitted.) "In 2004, California's voters passed an initiative measure that added to the state Constitution a provision directing the courts to broadly construe statutes that grant public 11 access to government information and to narrowly construe statutes that limit such access. (Cal. Const. art. I, § 3, subd. (b)(2).) That provision, however, does not affect the construction of any statute 'to the extent . . . it protects [the] right to privacy . . . .' (Cal. Const. art. I, § 3, subd. (b)(3).)" (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 68.) "Interpretation of the [PRA] and its application to undisputed facts present questions of law subject to de novo appellate review. [Citation.] And when it comes to balancing various interests under the [PRA], while we accept the trial court's express and implied factual determinations if supported by the record, 'we undertake the weighing process anew." (LAUSD, supra, 228 Cal.App.4th at p. 237.) "An agency opposing disclosure bears the burden of proving that an exemption applies." (Id. at p. 239.) III The District first asserts that the Rady documents are part of the participants' personnel files and are therefore exempt under section 6254, subdivision (c).6 That statute exempts from disclosure "[p]ersonnel, medical, or similar files, the disclosure of 6 The District also makes the following threshold argument: "[The District] has always maintained that the Rady documents are not public records[;] they are private personnel records and exempt from disclosure under Government Code section 6254 subdivision (c)." The District appears to misunderstand the PRA. Personnel records exempt from disclosure are public records; otherwise they would need no exemption. (§§ 6252, subd. (e); 6254.) In any event, the District offers no reasoned argument or authority for the proposition that the Rady documents are not public records. Based on our review, we conclude they are public records within the meaning of the PRA. (§ 6252; see San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774 (San Gabriel Tribune).) 12 which would constitute an unwarranted invasion of personal privacy." (§ 6254, subd. (c).) Relying on analogous federal law under the Freedom of Information Act (FOIA), this court has applied a three-step analysis to evaluate an argument based on this exemption: "As a threshold matter, the court must determine whether the records sought constitute a personnel file, a medical file, or other similar file. If so, the court must determine whether disclosure of the information would 'compromise substantial privacy interests; if privacy interests in given information are de minimus disclosure would not amount to a "clearly unwarranted invasion of personal privacy" [citation], in light of FOIA's broad policy favoring disclosure.' [Citation.] Lastly, the court must determine whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure." (Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 818 (Versaci); see BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 755 (BRV).)7 To qualify as personnel or similar files, documents "need not contain intimate details or highly personal information. They may simply be government records containing 'information which applies to a particular individual.' " (LAUSD, supra, 228 Cal.App.4th at p. 239.) Two types of records in the Rady documents, the participant 7 Inewsource contends Versaci is not good law because it relies on analogous cases interpreting FOIA and it cites a case (Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500), the conclusion of which the Supreme Court later disagreed with (see International Federation, supra, 42 Cal.4th at p. 336). We disagree. Cases interpreting FOIA can inform California courts' interpretation of the PRA in many contexts, even if the two statutory schemes differ in certain ways. (See Williams v. Superior Court (1993) 5 Cal.4th 337, 352.) Versaci's citation to Teamsters Local 856 v. Priceless, LLC also does not undermine the analysis or conclusions in Versaci on which we rely. 13 reports and participant evaluations, appear to be personnel or similar files. They contain information specific to individual participants, and the competency evaluations in those records reflect information that is traditionally contained in personnel files (e.g., performance reviews). (See ibid.; Versaci, supra, 127 Cal.App.4th at p. 819; see also Milner v. Department of Navy (2011) 562 U.S. 562 [" '[T]he common and congressional meaning of . . . "personnel file" ' is the file 'showing, for example, where [an employee] was born, the names of his parents, where he has lived from time to time, his . . . school records, results of examinations, [and] evaluations of his work performance.' "].) The talent management summary presents a closer question. The information in that record reflects individual, albeit anonymous, information and evaluations. For purposes of our discussion, we will accept the District's contention that the talent management summary, too, is a personnel or similar file. Next we evaluate the privacy interests implicated by the Rady documents. (Versaci, supra, 127 Cal.App.4th at p. 818.) "Public employees have a legally protected interest in their personnel files." (BRV, supra, 143 Cal.App.4th at p. 756.) The strength of that interest, however, will vary depending on the information at issue. Again, we find it useful to distinguish the participant reports and participant evaluation, on one hand, from the talent management summary, on the other. The participant reports and participant evaluation reflect individualized assessments of each participant. In the participant reports, these assessments include written narratives describing the participant's personality traits, work ethic, and similar qualities. In the participant evaluation, the assessments are distilled into a rating for each 14 assessed category. Based on this content, we conclude that disclosure of the participant reports and participant evaluation in the Rady documents "would 'compromise substantial privacy interests.' " (Versaci, supra, 127 Cal.App.4th at p. 820 [disclosure of an employee's "personal performance goals"].) "[T]he 'disclosure of negative comments or information about an employee on these subjects . . . could be quite embarrassing and painful to the employee. While many of the comments and much of the information are favorable or neutral, [the relevant exemption] was designed to protect individuals from a wide range of embarrassing disclosures, not just the disclosure of derogatory information. Indeed, the disclosure of favorable information could place the employee in a very embarrassing position with other, possibly jealous, employees.' " (Ibid.) The talent management summary presents no similar danger of embarrassment or pain to individual employees. While the talent management summary provides information about the participants as a whole (e.g., whether most participants performed well in a particular category), the information cannot be linked to any individual participant. Nor does the talent management summary disclose whether any individual participant did well in one category and worse in another category; the ratings within each category are reordered from best to worst. The privacy interest in such collective assessments, while perhaps not de minimus, is nonetheless severely attenuated. Our final step is balancing the privacy interests implicated by the Rady documents against any public interest in their disclosure. We "must determine whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure." (Versaci, supra, 127 Cal.App.4th at p. 818.) Fundamentally, the strength of the public 15 interest depends on " 'the extent to which disclosure of the requested item of information will shed light on the public agency's performance of its duty.' " (Id. at p. 820.) "While, as a threshold matter, the records must pertain to the conduct of the people's business, ' "[t]he weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate." ' " (LAUSD, supra, 228 Cal.App.4th at p. 242; see Connell v. Superior Court (1997) 56 Cal.App.4th 601, 616.) As an initial matter, we note that the Program—and therefore the Rady documents—were procured with District funds. The public therefore has an interest in knowing what was purchased with those funds, whether the Program was worth what the District spent, and whether the Program provided utility to the District. (See International Federation, supra, 42 Cal.4th at p. 333 [finding a "strong public interest in knowing how the government spends its money"].) The public also has an interest in knowing how the District identifies professional development opportunities and evaluates its senior staff, which were in part purposes of the Program. The Rady documents would plainly shed light on the District's activities in these ways. The Rady documents also shed light on the District's ability to perform its primary duty: developing and operating mass transit systems in San Diego County. "[P]ublic access makes it possible for members of the public ' "to expose corruption, incompetence, inefficiency, prejudice, and favoritism." ' " (International Federation, supra, 42 Cal.4th at p. 333.) The Program was designed to assess the competence of the District's senior managers in various categories (including "the organization's key competencies ") and 16 identify development opportunities. The Rady documents reflect the results of that assessment, including whether the individual participants performed well on the Program's various measures of managerial competency. While the Program focused on the competence of individual managers, the District's ability to perform its duty depends on the abilities of the individuals within the District's organization to act competently. (See BRV, supra, 143 Cal.App.4th at p. 757 ["Without doubt, the public has a significant interest in the professional competence and conduct of a school district superintendent and high school principal."].) The Rady documents are therefore relevant to an important public interest. Although the Rady documents are somewhat abstracted from the specific details of the participants' everyday work, as the District repeatedly points out, the Rady documents nonetheless provide valuable insight into the strengths and weaknesses of the participating managers in their senior roles at the District—and the strengths and weaknesses of the management team as a whole. Indeed, those are two of the main purposes of the Program as set out in its scope of work.8 8 Contrary to inewsource's contention, the Rady documents do not involve an inquiry into instances of District wrongdoing, well-founded or otherwise. Instead, as we have discussed, they represent the evaluation of the participating managers in various general categories of managerial competency. Although the Rady documents may have some relevance to inewsource's allegations of wrongdoing or malfeasance, because they relate generally to the ability of the participating mangers to perform in their positions, there is no heightened public interest based on that tenuous connection. The standard for disclosure articulated by American Federation of State etc. Employees v. Regents of the University of California (1978) 80 Cal.App.3d 913 is therefore inapplicable. "[That] case provides that where complaints of a public employee's wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature, as distinct from 17 The participant evaluation and talent management summary, by presenting the ratings of the participant group as a whole, bear most directly on the District's competence to perform its public duties. (See LAUSD, supra, 228 Cal.App.4th at p. 243 ["There can be little doubt that a public interest exists in 'teacher AGT scores' [i.e., teaching achievement metrics] as a whole."].) The additional information in the participant reports, however, is only indirectly relevant to the operations of the District. Much of the information in the participant reports is tailored to the individual traits and personalities of the participants. While the public has some interest in knowing and evaluating the traits and personalities of senior managers at a public agency, based on our review most of the information in the participant reports would be primarily useful only to the individual participants. The public's ability to understand more about the District based on this additional information would be low. Balancing the public and private interests, we conclude that the participant reports and participant evaluation fall within the PRA's personnel records exception. (See § 6254, subd. (c).) These documents reflect the ratings and assessments of each participant, identified by name, which engenders a strong privacy interest in their nondisclosure. They are akin to performance evaluations, which implicate substantial baseless or trivial, and there is reasonable cause to believe the complaint is well founded, public employee privacy must give way to the public's right to know." (Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1046.) The circumstances here are readily distinguishable. (See LAUSD, supra, 228 Cal.App.4th at p. 253 ["That is a far cry from the instant case, where there is no specific incident to investigate, just the ongoing (albeit important) work of teachers doing their jobs."].) 18 privacy interests.9 As to these documents, the strong interest in protecting the privacy of the individual participants outweighs the public interest in uncovering potential incompetence. (See Versaci, supra, 127 Cal.App.4th at p. 822 [holding that a public employee's "privacy interest in her entire evaluation process including her personal performance goals outweighs the public's minimal interest in the matter"].) Inewsource points out that a public official generally has "a significantly reduced expectation of privacy in matters of his public employment." (BRV, supra, 143 Cal.App.4th at p. 758.) While that principle is correct as a general matter, there are specific instances in which a public official's privacy interests will outweigh the public interest in disclosure. (See, e.g., Versaci, supra, 127 Cal.App.4th at p. 822.) "[E]ven government employees have privacy rights and ' "on certain occasions, the public's right to disclosure must yield to the privacy rights of governmental agents." ' [Citation.] '[O]ne does not lose his right to privacy upon accepting public employment . . . .' " (LAUSD, supra, 228 Cal.App.4th at p. 241, fn. 13.) Contrary to inewsource's claim, even records related to public business may be withheld under an applicable exemption; that is the purpose of the exemptions. If a record is purely personal and unrelated to public 9 The Brown Act, for example, "expressly authorizes a public agency to meet in closed session regarding the consideration of 'the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.' (Gov. Code, § 54957, subd. (b)(1).)" (Versaci, supra, 127 Cal.App.4th at p. 821; see International Federation, supra, 42 Cal.4th at pp. 333-334.) "The 'underlying purposes of the "personnel exception" are to protect the employee from public embarrassment and to permit free and candid discussions of personnel matters by a local governmental body.' " (Versaci, supra, 127 Cal.App.4th at p. 821.) 19 business, it is not subject to the PRA at all. (See § 6252, subd. (e); see also San Gabriel Tribune, supra, 143 Cal.App.3d at p. 774.)10 Inewsource proposes, as an alternative, that the names of the participating individuals be redacted from the Rady documents to mitigate any privacy concerns. (See CBS, Inc. v. Block, supra, 42 Cal.3d at p. 653 ["The fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document."].) We disagree. Given the specificity with which the participant reports and, to some extent, the participant evaluation discuss the competencies, traits, and personalities of the participating managers, there is a substantial risk that the participating managers could be identified and linked to their individual ratings and reports. Redacting the names of the individual managers would therefore have little effect on the privacy rights implicated by these documents. 10 Inewsource also relies on an opinion of the Attorney General concerning the disclosure of application and personnel files of nautical pilots. (53 Ops.Cal.Atty.Gen. 136 (1970).) In that opinion the Attorney General noted, as we do here, that portions of a personnel file may be sufficiently confidential to warrant exemption under the PRA: "As the information bears more remotely on the question of qualifications or performance, and as it by its personal nature becomes more likely to be regarded as intrusive or embarrassing by its disclosure, the probability of its confidential nature increases." (53 Ops.Cal.Atty.Gen, supra, at pp. 146-147.) The Attorney General therefore advised that "section 6254[, subdivision ](c) preserves the confidentiality of only a limited portion of the material found in a personnel file. For this reason, it is appropriate to segregate the confidential matters from the remainder of such a file." (53 Ops.Cal.Atty.Gen., supra, at pp. 147-148.) The Attorney General did not advise disclosing the entirety of any personnel file, as inewsource implies. Moreover, any analogy between the personnel files at issue in the Attorney General's opinion and the Rady documents is imperfect because the pilots were not employees of the Board of Pilot Commissioners. (See id. at p. 144.) Their personnel files therefore appear to have contained information that would not be comparable to the Rady documents. 20 As to the talent management summary, however, the absence of personally identifying information tips the balance in favor of disclosure. As we have explained, the privacy interest implicated by this record is significantly attenuated. Although it appears probable the participating employees were told that this record, too, would be kept confidential, the promise of confidentiality is not determinative in weighing the public and private interests. (See BRV, supra, 143 Cal.App.4th at pp. 748-749, 759; Versaci, supra, 127 Cal.App.4th at p. 821; San Gabriel Tribune, supra, 143 Cal.App.3d at p. 774.) The ratings contained in the talent management summary cannot be matched to any individual participant. The ratings do provide significant information, however, that bears on the competency of the District's participating senior managers across various categories (including "the organization's key competencies"). The public interest therefore remains strong. (See LAUSD, supra, 228 Cal.App.4th at p. 243; BRV, supra, 143 Cal.App.4th at p. 757.) Because disclosure of the talent management summary would not "constitute an unwarranted invasion of personal privacy," we conclude it is not exempt from disclosure under section 6254, subdivision (c). IV The District also contends the "catch-all" exemption in section 6255 of the PRA applies to the Rady documents. Under that exemption, an agency may withhold a public record from disclosure by showing "that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." (§ 6255, subd. (a).) "Records 'found to be nonexempt under section 6254 . . . can still be withheld under section 6255.' " (LAUSD, supra, 228 21 Cal.App.4th at p. 254.) However, because we have concluded that a portion of the Rady documents, the participant reports and the participant evaluation, are exempt under section 6254, subdivision (c), we need not consider whether they would additionally be exempt under section 6255. (See ibid.) Our analysis under the "catch-all" exemption will therefore be limited to the talent management summary. "The catch-all exemption 'contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.' [Citation.] Where the public interest in disclosure of the records is not outweighed by the public interest in nondisclosure, courts will direct the government to disclose the requested information. [Citation.] Conversely, when the public interest in nondisclosure clearly outweighs the public interest in disclosure, refusal to release records will be upheld." (LAUSD, supra, 228 Cal.App.4th at pp. 239-240.) "Under section 6255, the court balances the public interest in disclosure against the public interest in nondisclosure." (LAUSD, supra, 228 Cal.App.4th at p. 240.) We have already considered the public interest in the disclosure of the talent management summary in the previous part. We will therefore turn to the public interest in nondisclosure. The District asserts that "releasing the Rady documents would be detrimental to the functioning of [the District] and its ability to carry out its duties to the public." Relying on LAUSD, the District claims disclosure would negatively affect management employees at the District by generating "unhealthy comparisons among" the employees, leading to "discord in the workplace." (See LAUSD, supra, 228 Cal.App.4th at pp. 250- 22 251.) In LAUSD, however, the government had already released information that was at least as detailed as the talent management summary, including anonymous ratings of each teacher. (LAUSD, supra, 228 Cal.App.4th at p. 247.) The concerns articulated in LAUSD related to the disclosure of the identities of the public employees at issue, which is not at issue in the talent management summary. (See id. at p. 245.) The District's concerns may have some validity with respect to the participant reports and the participant evaluations, in which the participants and their corresponding ratings are identified. As to the talent management summary, however, we find the District's concerns to be largely unfounded because no individual participants are identified. While the talent management summary reflects how the 13 participants were rated in each category, the ratings cannot be linked to any individual participant. In the absence of any specific evidence to the contrary (and the District provides none), we believe any "unhealthy comparisons" or "discord in the workplace" generated by the disclosure of the talent management summary would be minimal. While some subordinate employees may notice the ratings of their superiors as a group, we believe the subordinates likely already understand their superiors' strengths and weaknesses in far more detail than the talent management summary provides. And, while some participants in the Program may experience embarrassment at the prospect of being included in a group with a given set of scores, the public interest in avoiding such embarrassment is also minimal. "Courts must be alert to contentions by government entities that exaggerate the interest in nondisclosure, lest they be used as a pretext for keeping information secret for 23 improper reasons, such as to avoid embarrassment over mistakes, incompetence, or wrongdoing. After all, to some extent any request for disclosure of public records will place a burden on government. Both the voters and their elected officials have established the general policy that this burden is well worth bearing in order to keep democracy vital. If the catchall provision of the [PRA] becomes a loophole used to improperly keep public records from the people, the important purposes of the [PRA] would be undermined." (LAUSD, supra, 228 Cal.App.4th at p. 250.) Balancing the strong public interest in disclosure of the talent management summary against the minimal public interest in its nondisclosure, we conclude the District has not shown the public interest in nondisclosure clearly outweighs the public interest in disclosure. (See § 6255, subd. (a).) " 'Since there is a strong public interest in disclosure, the balance must tip in favor of access' to the information." (Sacramento County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 472.) The "catch-all" exemption under section 6255 does not apply to the talent management summary.11 11 Our conclusion that the talent management summary must be disclosed under the PRA reinforces our determination that the participant reports and participant evaluation should not be disclosed. While the information contained in each is not exactly the same, the bulk of the information that would allow the public to assess the competency of the District's senior managers (at least according to the Program) is set forth in the talent management summary. (See LAUSD, supra, 228 Cal.App.4th at p. 242 ["Where a requester has an alternative, less intrusive, means of obtaining the information sought, the public interest in disclosure is minimal."].) 24 DISPOSITION Let a peremptory writ of mandate issue directing the superior court to vacate its order denying inewsource's petition and to enter a new order granting inewsource's petition in part as to the talent management summary, which is reflected on the second page of the Rady documents as submitted to this court. Inewsource's request for attorney fees is denied without prejudice to inewsource's ability to seek attorney fees, including for this proceeding, in the superior court. In all other respects, inewsource's petition in this court is denied. Inewsource's request for judicial notice is granted in part and denied in part as set forth in this opinion. Inewsource is awarded its costs in this proceeding. NARES, Acting P. J. WE CONCUR: McDONALD, J. McINTYRE, J. 25	{ "pile_set_name": "FreeLaw" }
871 F.2d 118 Wionv.Beaird* NO. 88-2893 United States Court of Appeals,Fifth Circuit. MAR 17, 1989 1 Appeal From: S.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
974 F.2d 1331 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.James NOLLEY, Petitioner-Appellant,v.STATE of South Carolina; Attorney General of the State ofSouth Carolina, Respondents-Appellees. No. 92-6350. United States Court of Appeals,Fourth Circuit. Submitted: June 10, 1992Decided: August 31, 1992 Appeal from the United States District Court for the District of South Carolina, at Columbia. David C. Norton, District Judge. (CA-90-424) James Nolley, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees. D.S.C. Dismissed. Before SPROUSE, NIEMEYER, and HAMILTON, Circuit Judges. OPINION PER CURIAM: 1 James Nolley seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Nolley v. State of South Carolina, No. CA-90-424 (D.S.C. Mar. 12, 1992). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. DISMISSED	{ "pile_set_name": "FreeLaw" }
397 U.S. 280 90 S.Ct. 1028 25 L.Ed.2d 307 Mae WHEELER et al., Appellants,v.John MONTGOMERY, Director of the State Department of Social Welfare, et al. Jack R. GOLDBERG, Commissioner of Social Services of the City of New York, Appellant, v. John KELLY et al. Nos. 14, 62. Supreme Court of the United States March 23, 1970 Peter E. Sitkin, San Francisco, Cal., for appellants. Elizabeth Palmer, San Francisco, Cal., for appellees. Mr. Justice BRENNAN delivered the opinion of the Court. 1 This is a companion case to No. 62, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. It is a class action brought by all recipients of old age benefits who are subject to California welfare termination provisions. A three-judge District Court for the Northern District of California held that the California procedure for pre-termination review in welfare cases satisfies the requirements of the Due Process Clause, 296 F.Supp. 138 (1968), and we noted probable jurisdiction, 394 U.S. 970, 89 S.Ct. 1452, 22 L.Ed.2d 751 (1969). This procedure requires notice to the recipient of the proposed discontinuance or suspension at least three days prior to its effective date, together with reasons for the intended action and a statement of what information or action is required to reestablish eligibility, advice that the recipient may meet his caseworker before his benefits are terminated '(t)o discuss the entire matter informally for purposes of clarification and, where possible, resolution,' and assurance that there will be 'prompt investigation' of the case and restoration of payments 'as soon as there is eligibility' to receive them.* The procedure does not, however, afford the recipient an evidentiary hearing at which he may personally appear to offer oral evidence and confront and cross-examine the witnesses against him. In Goldberg v. Kelly, supra, decided today, we held that procedural due process requires such an evidentiary pre-termination hearing before welfare payments may be discontinued or suspended. Accordingly, the judgment of the District Court must be and is reversed on the authority of Goldberg v. Kelly. 2 Reversed. 3 Mr. Chief Justice BURGER, with whom Mr. Justice BLACK joins, dissenting. 4 Although I agree in large part with Mr. Justice BLACK's views in No. 62, Goldberg v. Kelly, ante, p. 1022, there are additional factors I wish to mention in dissent from today's unwise and precipitous constitutional holdings. 5 The procedures for review of administrative action in the 'welfare' area are in a relatively early stage of development; HEW has already taken the initiative by promulgating regulations requiring that AFDC payments be continued until a final decision after a 'fair hearing' is held.1 The net effect would be to provide a hearing prior to a termination of benefits. Indeed, the HEW administrative regulations go far beyond the result reached today since they require that recipients be given the right to appointed counsel,2 a position expressly rejected by the majority. As the majority notes, see ante, at 1014 n. 3, these regulations are scheduled to take effect in July 1970. Against this background I am baffled as to why we should engage in 'legislating' via constitutional fiat when an apparently reasonable result has been accomplished administratively. 6 That HEW has already adopted such regulations suggests to me that we ought to hold the heavy hand of constitutional adjudication and allow evolutionary processes at various administrative levels to develop, given their flexibility to make adjustments in procedure without long delays. This would permit orderly development of procedural solutions, aided as they would be by expert guidance available within federal agencies which have an overview of the entire problem in the 50 States. I cannot accept—indeed I reject—any notion that a government which pays out billions of dollars to nearly nine million welfare recipients is heartless, insensitive, or indifferent to the legitimate needs of the poor. 7 The Court's action today seems another manifestation of the now familiar constitutionalizing syndrome: once some presumed flaw is observed, the Court then eagerly accepts the invitation to find a constitutionally 'rooted' remedy. If no provision is explicit on the point, it is then seen as 'implicit' or commanded by the vague and nebulous concept of 'fairness.' I can share the impatience of all who seek instant solutions; there is a great temptation in this area to frame remedies that seem fair and can be mandated forthwith as against administrative or congressional action that calls for careful and extended study. That is thought too slow. But, however cumbersome or glacial, this is the procedure the Constitution contemplated. 8 I would not suggest that the procedures of administering the Nation's complex welfare programs are beyond the reach of courts, but I would wait until more is known about the problems before fashioning solutions in the rigidity of a constitutional holding. 9 By allowing the administrators to deal with these problems we leave room for adjustments if, for example, it is found that a particular hearing process is too costly. The history of the complexity of the administrative process followed by judicial review as we have seen it for the past 30 years should suggest the possibility that new layers of procedural protection may become an intolerable drain on the very funds earmarked for food, clothing, and other living essentials.3 10 Aside from the administrative morass that today's decision could well create, the Court should also be cognizant of the legal precedent it may be setting. The majority holding raises intriguing possibilities concerning the right to a hearing at other stages in the welfare process which affect the total sum of assistance, even though the action taken might fall short of complete termination. For example, does the Court's holding embrace welfare reductions or denial of increases as opposed to terminations, or decisions concerning initial applications or requests for special assistance? The Court supplies no distinguishable considerations and leaves these crucial questions unanswered. 11 Mr. Justice STEWART, dissenting. 12 Although the question is for me a close one, I do not believe that the procedures that New York and California now follow in terminating welfare payments are violative of the United States Constitution. See Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894—897, 81 S.Ct. 1743, 1748—1750, 6 L.Ed.2d 1230. * California State Department of Social Welfare, Public Social Services Manual, Reg. 44—325 (effective April 1, 1968). The pertinent provisions of the regulation state: '.43 * * * The recipient * * * shall be notified, in writing, immediately upon the initial decision being made to withhold a warrant beyond its usual delivery date * * * and in no case less than three * * * mail delivery days prior to the usual delivery date of the warrant * * . The county shall give such notice as it has reason to believe will be effective including, if necessary, a home call by appropriate personnel. * * Every notification shall include: '.431 A statement setting forth the proposed action and the grounds therefor, together with what information, if any, is needed or action required to reestablish eligibility. * * * '.432 Assurance that prompt investigation is being made; that the withheld warrant will be delivered as soon as there is eligibility to receive it; and that the evidence or other information which brought about the withholding action will be freely discussed with the recipient * * * if he so desires * * . '.434 A statement that the recipient * * may have the opportunity to meet with his caseworker * * * in the county department, at a specified time, or during a given time period which shall not exceed three * * * working days, and the last day of which shall be at least one * * * day prior to the usual delivery date of the warrant, and at a place specifically designated in order to enable the recipient * * * '(a) To learn the nature and extent of the information on which the withholding action is based; '(b) To provide any explanation or information, including, but not limited to that described in the notification * * *; '(c) To discuss the entire matter informally for purposes of clarification and, where possible, resolution.' 1 45 CFR § 205.10, 34 Fed.Reg. 1144 (1969). 2 45 CFR § 220.25, 34 Fed.Reg. 1356 (1969). See also HEW Handbook, pt. IV, §§ 2300(d)(5), 6200—6400. 3 We are told, for example, that Los Angeles County alone employs 12,500 welfare workers to process grants to 500,000 people under various welfare programs. The record does not reveal how many more employees will be required to give this newly discovered 'due process' to every welfare recipient whose payments are terminated for fraud or other factors of ineligibility or those whose initial applications are denied.	{ "pile_set_name": "FreeLaw" }
164 F.Supp.2d 931 (2001) HEIDTMAN STEEL PRODUCTS, INC., Plaintiff, v. COMPUWARE CORPORATION, Defendant. No. 3:97CV7389. United States District Court, N.D. Ohio, Western Division. August 13, 2001. 932 933 Clyde H. Wilson, Wilson, Johnson & Jaffer, Sarasota, FL, John M. Carey, Kimberly S. Kondalski, Robert W. Bohmer, Watkins, Bates & Carey, Toledo, OH, Mark C. Schaffer, Emch, Schaffer, Schaub & Porcello, Toledo, OH, for Heidtman Steel Products, Inc. Anthony J. Rusciano, George M. Head, Plunkett & Cooney, Bloomfield Hills, MI, Joseph V. Walker, Plunkett & Cooney, Detroit, MI, Michael G. Sanderson, Shumaker, Loop & Kendrick, Toledo, OH, for Compuware Corporation. ORDER CARR, District Judge This case involves a dispute over the installation of a computer system by defendant Compuware Corporation ("Compuware") for plaintiff Heidtman Steel Products, Inc. ("Heidtman"). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. Pending is Compuware's motion for summary judgment on Heidtman's rescission and fraud claims. (Doc. 168). For the following reasons, Compuware's motion for summary judgment is denied in part and granted in part. 934 BACKGROUND Heidtman is a Toledo-based company in the business of purchasing flat rolled steel coils for processing and resale. In the early 1990s, Heidtman determined that its computer system needed replacement and launched an initiative called the "Plus Project," the goal of which was to install a new, modern computer system, based on an Oracle platform. Heidtman enlisted the help of several software consultants, including Compuware, to work under the direction of Ernst & Young, an accounting firm that Heidtman anticipated would oversee the Plus Project. In connection with Compuware's hiring, Compuware and Heidtman entered into a contract titled the "Agreement for Technical Personnel Services" ("service agreement"). According to the service agreement, Compuware was to provide computer programming expertise, analysis, coding and related services. The service agreement also set forth the terms and conditions of Compuware's employment, including provisions controlling 1) termination, 2) compensation, 3) payment of bills and expenses, 4) assignment of work, 5) liability, 6) limitations on warranties and remedies, 7) modification, and 8) choice of law. After the service agreement was executed, Ernst & Young pulled out of the Plus Project. As a consequence, Compuware's role changed. These changes were memorialized in a series of agreements, called phase agreements, drafted by Compuware at the outset of each phase of work. In total, four phase agreements were written; the third, however was not signed by Heidtman. The purpose of the phase agreements was to define the next segment of work to be performed by Compuware and to obtain Heidtman's consent before starting. Though the phase agreements contain detail about the tasks Compuware proposed to undertake and the key deliverables, they do not independently set forth any new terms and conditions. In 1997, Heidtman and Compuware began to clash over the progress of the Plus Project. Heidtman was distressed that the launch of the new computer system had, in its view, been delayed, and that Compuware had exceeded the Plus Project's budget. Compuware allegedly was troubled because Heidtman had not paid approximately $2,824,875 of past due fees. Unable to resolve their differences, the parties' relationship ended in late April 1997. On May 9, 1997, Heidtman filed this suit, alleging breach of contract and other state law claims. Subsequent to this filing, Heidtman retained Ernst & Young to audit the work done by Compuware. In its audit, Ernst & Young concluded that Compuware had so poorly managed the Plus Project that none of Compuware's work product was salvageable. Further, Ernst & Young informed Heidtman that it would have to design a new computer system from scratch, and that the money it had paid to Compuware had been a complete waste. In late 1998, according to Heidtman, it commissioned an independent computer consulting firm, Stonebridge Technologies, to review Ernst & Young's findings. According to Heidtman, Stonebridge Technologies, at the conclusion of its investigations, likewise determined that Compuware was at fault for the Plus Projects' failure. On February 15, 2000, I granted part of Compuware's first motion for summary judgment, ruling that 1) the phase agreements and service agreement must be read together as a single contract; 2) the contract contemplated the provision of services thereby precluding the application of the UCC; 3) Heidtman's negligence, professional malpractice, and breach of implied duty of good faith claims should be 935 summarily dismissed; and 4) Heidtman's promissory estoppel claim was barred because a contract existed between the parties. (Doc. 131). I also held that genuine issues of fact existed as to 1) Heidtman's breach of contract claim based on Compuware's failure to deliver an operable computer system; 2) whether Heidtman accepted performance thereby precluding its claim for rescission or damages; and 3) Heidtman's conversion and replevin claims. (Id.). Further, I held that Michigan law applied to the action. (Id.). On April 10, 2000, after additional briefing by the parties, I held that 1) the service agreement's limitation on remedies was valid and enforceable; and 2) Compuware validly excluded any warranties not set forth in the service and phase agreements. (Doc. 143). Finally, I clarified in a subsequent order that 1) after holding the UCC did not apply, Heidtman was not restricted from pursuing a rescission claim under Michigan common law; and 2) the limitation clause for damages did not prohibit a rescission claim. (Doc. 166). ANALYSIS Summary judgment must be entered "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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleading or merely reassert its previous allegations. It is insufficient "simply [to] 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, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A. Rescission Heidtman seeks rescission of the contract alleging that Compuware's installation of the computer system was a failure. (Doc. 144). Compuware moves for summary judgment alleging that: 1) Heidtman failed to perform its obligations under the contract, thus precluding its rescission action; and 2) Heidtman's delay in bringing the rescission claim amounts to a waiver. (Doc. 168).[1] 936 To warrant rescission of a contract, there must be a material breach affecting an essential part of the contract. Holtzlander v. Brownell, 182 Mich.App. 716, 721, 453 N.W.2d 295 (1990). Whether a breach is material is a question of fact. Werner Gommeringer v. Amway Corp., No. G85-832, 1988 U.S. Dist. LEXIS 17824, 6, (W.D.Mich.1988) (unpublished) (citing Pratt v. Van Rensselaer, 235 Mich. 633, 209 N.W. 807 (1926)). A party is not entitled to rescind a contract if that party has not fulfilled its obligations under the contract. Miller v. Smith, 276 Mich. 372, 267 N.W. 862 (1936). Compuware alleges that Heidtman may not bring a rescission action because: 1) Heidtman refused to pay Compuware for the last eight months of work performed; 2) Jim Hill, Heidtman Project Director for Plus Project, failed to perform his full-time position of managing project and prevent "scope creep"[2]; and 3) Oracle employees hired by Heidtman did not perform their duties properly. I find that Heidtman has established genuine issues of material fact regarding its performance of the contract. Compuware's motion for summary judgment is, therefore, denied as to the rescission claim. Heidtman's Alleged Failure to Pay Both parties agree that, under the contract, Compuware was to be paid on a time and materials basis. Compuware created budgets and timelines for completion of the project and submitted them to Heidtman. According to Compuware, Heidtman wrongfully refused to pay for the last eight months of work that Compuware performed. (Doc. 168 at Ex. I, J, and K). By entering into a time and materials contract, Compuware argues, Heidtman undertook the risk that the cost of the project would exceed the estimated budgets. Heidtman was still obligated to pay Compuware even if the amount was in excess of the budget. Compuware argues that Heidtman's refusal to pay prevents it from bringing its rescission claim. Heidtman argues that it properly refused to pay Compuware because the amount billed was in excess of the agreed budget.[3] According to Heidtman, it refused to pay after Compuware failed to provide a satisfactory explanation for the unauthorized overrun. (Doc. 187 at Ex. AA, EE; Ridenour 2 Dep. at 112-114). Whether Heidtman was obligated to pay Compuware, despite the cost over budget, depends on the agreement between Heidtman and Compuware. The parties' intended obligations arising under the contract is a question of fact. Rasheed v. Chrysler Corp., 445 Mich. 109, 127, 517 N.W.2d 19 (1994). As such, I cannot hold as a matter of law that Heidtman failed to perform its obligations under the contract by refusing to pay invoices that allegedly exceeded the original budget. Involvement of Jim Hill in Plus Project Compuware argues that Jim Hill failed to perform his obligations to the Plus Project as demanded by the phase 937 agreements. (Doc. 174 at Ex. E, 3). In addition, Compuware contends Hill was to have managed the scope of the project, but failed to keep the project within its original limits. (Hill Dep., Vol. I at 121-122). Compuware alleges that Hill's failure to perform his contractual duties precludes Heidtman from bringing the rescission claim. Heidtman argues that both parties agreed Hill would perform his duties as information system director "as needed" and that Hill always had duties outside of the Plus Project. (Doc. 181 at 42). Hill's position and duties, Heidtman contends, were a "staffing projection" and not a binding provision leading to a material breach. (Id. at 41-42). Further, Heidtman alleges that the problems of keeping the project within its projected scope were attributable to Compuware's original deficient performance on the project, instead of Hill's lack of oversight. (Id. at 44). Heidtman has produced genuine issues of material fact concerning whether Hill's performance constitutes a breach of Heidtman's contractual obligation. The parties' understanding as to Hill's responsibilities, Hill's actual performance, and Hill's ability to manage the scope of the project are questions of fact, precluding summary judgment on Heidtman's rescission claim. Performance of Oracle Employees Heidtman hired Oracle employees to assist in the development of the Plus Project. Compuware argues that the Oracle employees failed adequately to capture Heidtman's business requirements, which were the basis for the overall software development. (Doc. 174 at Ex. E). The parties disagree about the extent of participation by the Oracle employees in the Plus Project and about which party should bear the responsibility for their alleged nonperformance. (Doc. 181 at 47; Doc. 168 at 20). Compuware suggests that, because Heidtman's own employees breached their obligations on the project, Heidtman cannot seek rescission of the entire contract. Significant factual questions remain about the control and responsibility over Oracle employees, their performance, and the relationship of this performance to the failure of the project. Summary judgment is, therefore, inappropriate. Heidtman's Alleged Delay in Seeking Rescission A plaintiff asserting a right to rescind must do so "without unnecessary delay" or else loses the right to relief. Wall v. Zynda, 283 Mich. 260, 265, 278 N.W. 66 (1938). Compuware argues that, although Heidtman brought the rescission claim in December, 1997, Heidtman had knowledge of the breaches on which it bases its claim prior to that time. Specifically, Compuware contends that Heidtman received a memo on June 6, 1995, discussing the same programming, designing and management problems that are the basis for the recission claim. (Doc. 168 at 24). Further, Compuware argues that it informed Heidtman of budget and report problems on several occasions, as early as 1995. In addition, Compuware alleges that because Heidtman did not make payments as of October, 1996, it should not be able to seek rescission as of December, 1997, when it filed this suit. Heidtman alleges that, although it had knowledge of earlier problems, it did not realize their depth until receiving the Ernst & Young audit results shortly before filing suit. Further, Heidtman contends that its failure to pay in 1996 was based on Compuware's expenses over the budget, and is independent from the rescission claim. I agree. In light of all the evidence, I cannot hold, as a matter of law, that Heidtman 938 had sufficient knowledge to establish a material breach by Compuware at an earlier period, justifying a holding that Heidtman waived its rescission claim. The evidence is conflicting as to whether Heidtman earlier had enough knowledge about the seriousness of Compuware's concerns to find waiver on its part. See Werner, 1988 U.S. Dist. at 6 (question of whether a breach is material is a question of fact). In addition, Heidtman's decision to cease payments in 1996 does not preclude its rescission claim filed in 1997. As discussed above, Heidtman withheld payments until Compuware accounted for the payments over budget. This decision does not independently demonstrate that Heidtman had knowledge that Compuware's performance was so insufficient as to constitute a material breach. B. Fraud Heidtman alleges that Compuware fraudulently concealed its knowledge that the Plus Project was progressing poorly, Compuware was unable to finish each project phase within the boundaries of the agreement, and Compuware fraudulently represented the status of the project and its costs throughout the various phase agreements. (Doc. 144 at 26-42). Compuware moves for summary judgment arguing that: 1) the economic loss doctrine prevents recovery for the fraud claim; and 2) Heidtman's tort claim must fail because it is based solely on Compuware's contractual duty. I find that the economic loss doctrine, under Michigan law, does not apply outside the UCC context. However, because Heidtman has not presented facts establishing Compuware's breach of duty beyond its contractual duty, Compuware's motion for summary judgment is granted as to the fraud claim.[4] Economic Loss Doctrine Does Not Apply to Services Contract Compuware argues that Heidtman's fraud claim is barred by the economic loss doctrine. I find that the doctrine does not apply to this case because the contract at issue is not governed by the UCC. In Neibarger v. Alfa-Laval Inc., 439 Mich. 512, 520, 486 N.W.2d 612 (1992), the Supreme Court of Michigan recognized the economic loss doctrine, which provides that "[w]here a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has only suffered `economic' losses." The court relied heavily on the commercial nature of the contract in its application of the doctrine, noting "[r]ejection of the economic loss doctrine would, in effect, create a remedy not contemplated by the Legislature when it adopted the UCC by permitting a potentially large recovery in tort for what may be a minor defect in quality." Id. at 528, 486 N.W.2d 612. A Michigan Court of Appeals arguably broadened the Neibarger decision by stating, in dicta, that the economic loss doctrine is applicable to transactions involving a services contract outside the scope of the UCC. In Huron Tool and Eng'g Co. v. Precision Consulting Serv., Inc., 209 Mich. App. 365, 374, 532 N.W.2d 541 (1995), the court stated that "[a]lthough the Supreme Court's discussion of the economic loss doctrine in Neibarger was linked closely to the UCC context of the case, the doctrine is not limited to the UCC." The Supreme Court of Michigan, however, has not explicitly adopted a broader application of the economic loss doctrine to contracts not governed by the UCC.[5]939 Without such guidance, I will refrain from applying the doctrine to a services contract. As the Sixth Circuit has noted, "respect for the role of the state courts as the principal expositors of state law counsels restraint by the federal court in announcing new state-law principles." Angelotta v. American Broadcasting Corp., 820 F.2d 806, 809 (6th Cir.1987). Therefore, because the Neibarger decision applied the economic loss doctrine in the UCC context, I will not broaden that holding by applying it to a contract for services. See Cargill v. Boag Cold Storage Warehouse, Inc., 71 F.3d 545, 550 (6th Cir.1995) ("Michigan courts apply the doctrine only in situations involving the sale of goods"); Allmand Associates Inc. v. Hercules Inc., 960 F.Supp. 1216, 1223 (E.D.Mich.1997) (refusing to adopt the Huron dicta that the economic loss doctrine is applicable to services contracts). Heidtman's Fraud Claim Based Solely on Compuware's Contractual Duty Under Michigan law, a tort claim cannot be based on the same facts serving as a basis for a breach of contract action. Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895 (1956). To bring a fraud claim along with a breach of contract action, the plaintiff must establish violation of a duty that exists separately from the contractual obligation. Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co., 454 Mich. 65, 84, 559 N.W.2d 647 (1997). A careful review of Heidtman's complaint reveals that the allegations supporting its fraud claim are based solely on Compuware's contractual duties. Previously, I held that the service agreement and four phase contracts must be read together as one contract. (Doc. 131 at 6-7). The service agreement provided a general outline of the Plus Project, subject to amendments providing more detail about the time and materials obligations. (Doc. 174 at Ex. A). Compuware and Heidtman later agreed to the amendments, as phase agreements, providing further definition for terms in the original agreement. (Id. at Ex. B, C, D). Heidtman's breach of contract claim is based on Compuware's alleged failure to meet both the requirements of the service agreement and four phase agreements. Specifically, Heidtman claims that: 1) Compuware continued to assure Heidtman that the project was proceeding properly although Compuware had knowledge that the Plus Project was failing; 2) Heidtman paid sums for the project in excess of the agreed cost figures; and 3) Compuware repeatedly failed to meet deadlines for completion, mismanaged the technical development of the Plus system, and failed to provide a working computer system. (Doc. 144 at 12-5). Similarly, Heidtman, in support of its fraud claim, alleges that: 1) Compuware made representations concerning its ability 940 to install a working computer system prior to the formation of the service agreement; 2) Compuware concealed from Heidtman, prior to the execution of each phase agreement, that the Plus Project was not meeting its goals in order to induce Heidtman to continue with the contract; 3) Compuware hired personnel with no prior training who made budget projections in excess of the contemplated cost; and 4) Compuware recklessly made false representations in each of the phase agreements. (Id. at 26-42). In Tempo, Inc. v. Rapid Elec. Sales & Serv. Inc., 132 Mich.App. 93, 347 N.W.2d 728 (1984), the Michigan Court of Appeals held that the defendants, in their cross-appeal, were not entitled to bring a fraud action without establishing tortious conduct independent of the breach of contract. The defendants alleged that the plaintiffs failed to pay amounts owed in the contract, thereby asserting a breach of contract. The defendants' fraud claim was based on plaintiffs' representations concerning the contract. Noting that, although the plaintiffs may have made representations with no intention of performing them, the court held that the conduct "merely reflects the bad faith nature of the later breach," and is not sufficient to establish an independent fraud claim. Id. at 107, 347 N.W.2d 728. See also Merchants Publ'g Co. v. Maruka Machinery Corp., 800 F.Supp. 1490, 1493 (W.D.Mich.1992) (dismissing fraud claim because "operative allegations in the claims would not arise without the existence of the putative contracts between the parties"). The allegations supporting Heidtman's fraud claim are based solely on Compuware's contractual duties. (Doc. 144 at 26-42). Compuware would not have a duty to disclose that it would not meet the phase agreement projections or budget goals, for example, without the presence of the underlying contract. Because Heidtman has not established tortious conduct independent of the breach of contract, Compuware's motion for summary judgment as to the fraud claim shall be granted. Heidtman also alleges that Compuware made false representations prior to the signing of the service agreement. The service agreement, however, contains two clauses that nullify any representation not included in the agreement.[6] A fraud claim requires reliance on a misrepresentation, and under Michigan law, such clauses make it unreasonable for a party to rely on a representation not included in the later agreement. UAW-GM Human Resource Center v. KSL Recreation Corp., 228 Mich.App. 486, 503, 579 N.W.2d 411 (1998) ("when a contract contains a valid merger clause, the only fraud that could vitiate the contract is fraud that would invalidate the merger clause itself"). Because Heidtman has not alleged fraud to invalidate the service agreement, the alleged representations made prior to the signing of the security agreement do not support a fraud claim. Conclusion For the foregoing reasons, it is hereby 941 ORDERED THAT Compuware's motion for summary judgment be granted in part and denied in part. (Doc. 168). So ordered. NOTES [1] In my earlier opinions, I held that Heidtman's allegations, if proven true, could amount to a valid rescission claim. (Doc. 131 at 19; Doc. 143 at 3). Based on this holding, Heidtman argues Compuware's motion for summary judgment should be treated as a motion for reconsideration. (Doc. 181 at 39). I disagree. A holding that Heidtman's allegations state a claim for rescission does not preclude Compuware from challenging the merits of such claim in a later motion. [2] When the projected scope of a project grows substantially, such growth is known as "scope creep". [3] Compuware points out that Heidtman argued, in an earlier motion, that its breach of contract claim was based on Compuware's failure to provide a working computer system, and was not based on the allegation that Compuware went over budget. (Doc. 189 at 4). Compuware suggests that Heidtman is now precluded from arguing that it had no obligation under the agreement to pay the excess charges. This claim is without merit. Heidtman's clarification of the basis for its breach of contract claim does not prevent it from responding, in this motion, to the allegation that it wrongfully withheld payments during the last eight months of the contract. [4] Because Heidtman has not alleged facts demonstrating tortious conduct independent of the contractual duty, I will not discuss Compuware's argument that Heidtman has failed to establish the elements of its fraud claim. [5] Compuware argues that, in Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co., 454 Mich. 65, 559 N.W.2d 647 (1997), the Supreme Court of Michigan "recognized that the economic loss doctrine under the UCC was simply another name" for the common law rule that a breach of a contractual duty cannot support an action in tort. (Doc. 189 at 22). Compuware points to language in the Rinaldo's decision: "In addition to acknowledging this distinction at least as far back as Hart, the distinction has more recently been applied to sales contracts under the UCC under the rubric of the `economic loss doctrine.'" Id. at 84-85, 559 N.W.2d 647 (citing Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895 (1956)). Therefore, Compuware argues, the economic loss doctrine should be extended to apply to services contracts not governed by the UCC. I disagree. By pointing out that the common law rule and economic loss doctrine serve a similar purpose of prohibiting recovery for intangible economic losses, the Michigan Court did not affirmatively hold that such doctrines are interchangeable. [6] The agreement contains the following clauses: "ENTIRE AGREEMENT: This document and the schedules referred to, as well as any amendments, shall constituted the entire Agreement between the parties and supersede all previous communications, representations, understandings, concurrent or subsequent purchase orders, and agreements, whether oral or written, between the parties or any officer or representative of the parties.... RELIANCE: CLIENT HAS NOT RELIED UPON ANY REPRESENTATIONS OTHER THAN THOSE SET FORTH IN THIS AGREEMENT." (Doc. 174 at Ex. A).	{ "pile_set_name": "FreeLaw" }
608 S.E.2d 245 (2004) 270 Ga. App. 791 STOVALL v. DAIMLERCHRYSLER MOTORS CORPORATION. No. A04A1493. Court of Appeals of Georgia. November 16, 2004. Reconsideration Denied December 8, 2004. 246 Christopher L. Brinkley, Masters & Taylor, Charleston, WV, Stites & Harbison, J.D. Humphries, III, Atlanta, for Appellant. Mary Owens, Bradley Wolff, Swift Currie McGhee & Hiers, LLP, Atlanta, for Appellee. RUFFIN, Presiding Judge. This is a product liability action based upon an alleged defect in the cruise control system of Lori Ann Stovall's 1993 Jeep Grand Cherokee (Jeep), which was manufactured by DaimlerChrysler Motors Corporation (Daimler). A jury returned a defense 247 verdict, finding that there was no defect. Stovall appeals, asserting that the trial court erred with respect to several evidentiary rulings. For reasons that follow, we affirm. The admission or exclusion of evidence is a matter within the discretion of the trial court, and we review evidentiary decisions on an abuse of discretion standard.[1] This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding. Hence, it is only natural that an appellate court should defer to the trial court with regard to the admission of evidence, unless the lower court's decision is so flawed as to constitute an abuse of discretion.[2] Here, the evidence shows that on December 24, 1992, Stovall attempted to "inch" her Jeep down a sloped driveway. When she shifted the Jeep into gear, the Jeep suddenly accelerated, striking a tree. Stovall underwent two surgeries as a result of injuries sustained in the collision. Prior to trial, Stovall filed a motion in limine regarding four anticipated evidentiary issues: (1) the admission of evidence regarding thirteen other sudden acceleration incidents; (2) the exclusion of references to certain governmental reports regarding sudden acceleration, in particular a 1989 National Highway Traffic Safety Administration (NHTSA) report which concluded that sudden acceleration resulted from pedal misapplication rather than a defect; (3) the admission of evidence regarding the government's inquiry into sudden acceleration in Jeeps; and (4) the admission of engineering data collected during Daimler's analysis of sudden acceleration in Jeeps. The trial court heard this and other motions on February 13 and 14, 2003. The court ruled that (1) all of the other incidents involving sudden acceleration were inadmissible; (2) the governmental reports on sudden acceleration were inadmissible, but that Daimler's experts could refer to those reports during their testimony; (3) evidence of NHTSA's inquiry into sudden acceleration in Jeeps was inadmissible; and (4) the engineering data collected by Daimler during its investigation of sudden acceleration in Jeeps was inadmissible. The trial court subsequently denied Stovall's motion for a new trial. 1. First, Stovall argues that the court erred in excluding the 13 incidents of sudden acceleration in other vehicles. We disagree. "Similar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time or place."[3] However, in product liability cases, an exception to the general rule has developed, and in some cases evidence of other substantially similar incidents involving the product is admissible and relevant to the issues of notice of a defect and punitive damages.[4] Before admitting evidence of other incidents, however, the proponent of the evidence must prove, and the trial court must determine, that the other incidents are substantially similar to the incident at issue in the trial.[5] And "[t]he showing of substantial similarity must include a showing of similarity as to causation."[6] Without such showing, the evidence is irrelevant as a matter of law.[7] Here, Stovall's expert testified at the hearing on the motion in limine with respect to the 13 other incidents of sudden acceleration. He identified several defects that can lead to sudden acceleration, including transient signal *248 faults, cross-over circuit faults, ground-loss faults, dump valve inadequacy, hard wire faults and battery/alternator problems. He testified that, in his opinion, cross-over circuit faults were the probable cause of Stovall's collision. Although he testified that the other alleged incidents of sudden acceleration were "substantially similar" to Stovall's, he also admitted that he could not identify the failure mode that caused the other incidents. And Stovall offered no other evidence to establish the cause of the alleged sudden acceleration. Accordingly, the trial court did abuse its discretion in excluding this evidence.[8] 2. Stovall also argues that the trial court erred in allowing the admission of references to a 1989 NHTSA study. According to Stovall, "none of the vehicles studied was shown to have a design which was substantially similar to the Grand Cherokee." Although Daimler did not seek to introduce the NHTSA report, one of its experts referred generally to the study in explaining how he reached his conclusions. Expert witnesses may rely upon scientific works and government reports in forming their opinions about matters at issue in a case.[9] And here, Daimler's expert testified merely that NHTSA had investigated claims of unintended acceleration in another make and model vehicle and that he "considered" the conclusions reached in the study, which were consistent with his own conclusions. Under these circumstances, the court did not abuse its discretion in permitting the expert to testify in this regard.[10] 3. Stovall also argues that the trial court erred in excluding correspondence indicating that Daimler did not produce certain documents to NHTSA in response to NHTSA's investigation into sudden acceleration in Jeeps. Specifically, Stovall argues that two documents, a service manual and an analysis of failure modes, were not submitted to NHTSA, and that this shows that Daimler was trying to conceal a defect. Given that Stovall was proceeding solely on a claim of strict product liability, the trial court excluded the correspondence regarding these documents as irrelevant. Pretermitting whether the two documents were properly withheld from NHTSA, we fail to see how the correspondence regarding them is relevant given that Stovall's expert admitted that the documents did not address the failure mode he contends caused the collision. Moreover, the two documents themselves were admitted into evidence. Thus, the trial court did not abuse its discretion in excluding the correspondence regarding them.[11] 4. Finally, Stovall argues that the court erred in excluding evidence of statistical data of complaints made to Daimler concerning sudden acceleration. Again, however, Stovall failed to show any similarity among the complaints represented by the data and Stovall's alleged defect. Thus, the trial court did not err in excluding this evidence.[12] Judgment affirmed. ELDRIDGE and ADAMS, JJ., concur. NOTES [1] See Cooper Tire etc. Co. v. Crosby, 273 Ga. 454, 456-457(2), 543 S.E.2d 21 (2001). [2] Id. at 457, 543 S.E.2d 21. [3] Skil Corp. v. Lugsdin, 168 Ga.App. 754-755(1), 309 S.E.2d 921 (1983). [4] See Mack Trucks v. Conkle, 263 Ga. 539, 544(3), 436 S.E.2d 635 (1993). [5] See Crosby, 273 Ga. at 455(1), 543 S.E.2d 21. [6] Id. [7] See Gen. Motors Corp. v. Moseley, 213 Ga.App. 875, 877(1), 447 S.E.2d 302 (1994). [8] See Crosby, supra at 455-456(1), 543 S.E.2d 21. [9] See Williamson v. Harvey Smith, Inc., 246 Ga.App. 745, 748-749(4), 542 S.E.2d 151 (2000). [10] See id. [11] See Crosby, supra at 456-457(2), 543 S.E.2d 21. [12] See id.; Ray v. Ford Motor Co., 237 Ga.App. 316, 317-319(1), 514 S.E.2d 227 (1999).	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION AUG 31 2015 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARK WAH SUN YOUNG, No. 13-17121 Plaintiff - Appellant, D.C. No. 1:09-cv-00403-SOM- BMK v. JEFFREY VRECHEK, as personal MEMORANDUM* representative of James Vrechek, Defendant - Appellee. Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, Chief District Judge, Presiding Submitted August 26, 2015** San Francisco, California Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges. Mark Young (“Young”) appeals from the district court’s dismissal of this case based on his failure to join his brother, Keith Young, a necessary party. Fed. R. Civ. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 P. 12(b)(7); 19. We have jurisdiction under 28 U.S.C. § 1291. Because Young failed to join a required party and cannot do so without defeating diversity, we affirm.1 We review a district court’s joinder decision for abuse of discretion, but review underlying legal conclusions de novo. Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 879 (9th Cir. 2004). Young argues that the district court’s legal rulings ignore controlling Supreme Court precedent and that Rule 19 is impermissibly jurisdictional, in contravention of Rule 82 of the Federal Rules of Civil Procedure. We reject both arguments. Young’s argument that the district court’s ruling was inconsistent with Lincoln Property Company v. Roche, 546 U.S. 81 (2005), fails because Roche is inapposite to this case. Roche concerned diversity jurisdiction under the removal statute, 28 U.S.C. § 1441, not dismissal for failure to join a necessary party under Rule 19. The Court in Roche explicitly disclaimed any reliance on Rule 19: “The [plaintiffs] place no reliance on Rule 19,” and “it does indeed appear that no absent person, formally or practically, was ‘[n]eeded for [j]ust [a]djudication.’” 546 U.S. at 90-91 (quoting Fed. R. Civ. P. 19). Young’s argument that dismissals under Rule 19 impermissibly limit the court’s jurisdiction fails as well. The district court dismissed the case under Rules 12(b)(7) 1 Young’s August 9, 2015 motion for miscellaneous relief is denied as moot. 2 and 19(b); it did not find that it lacked jurisdiction. See Roche, 546 U.S. at 90 (“[Rule 19] address[es] party joinder, not federal-court subject-matter jurisdiction.”); Paiute-Shoshone Indians of Bishop Cmty. of Bishop Colony, Cal. v. City of L.A., 637 F.3d 993, 1000 (9th Cir. 2011) (“Rule 19(b) requires us to undertake a ‘practical examination of [the] circumstances’ to determine whether an action may proceed ‘in equity and good conscience’ without the absent party.”) (citation omitted). We also reject Young’s argument that the District of Hawaii Local Rules 7.2 and 54.2 are unconstitutional. Young fails to cite any authority indicating that awards of costs to the prevailing party or decisions without oral argument are unconstitutional.2 AFFIRMED. 2 Because we affirm the district court’s dismissal of the case for failure to join a necessary party, we need not address Young’s argument that the district court erred by not granting him summary judgment. 3	{ "pile_set_name": "FreeLaw" }
405 F.Supp. 1063 (1975) UNITED STATES of America v. Ricardo COLLADO BETANCOURT. Cr. No. 74-135. United States District Court, D. Puerto Rico. December 12, 1975. 1064 Juan A. Pérez-Giménez, Asst. U. S. Atty., San Juan, P. R., for plaintiff. Carlos Coll Carpintero, Hato Rey, P. R., Manuel A. Vallecillo, San Juan, P. R., for defendant. ORDER PESQUERA, District Judge. This Court has had under consideration for some time now defendant's motion for reconsideration of sentence. Serious thought has again been given to all the factors surrounding the defendant, and the same have been weighed with the sentencing objectives in mind. As in every mental process, some factors have had more weight than others on the sentencing judge, but all have been considered by the Court in determining which sentence is in the best interest of both the offender and society. Various sentencing institutes have expressed general sentencing principles for a sentencing judge to have in mind. First, that the purpose of a sentence combines community protection, correction, rehabilitation, deterrence and punishment, and it is for the sentencing judge to determine the proportionate worth, value and requirement of each of these elements in imposing sentence in each case. Second, that the prime consideration in proper sentencing is the public welfare; and third, that a proper sentence is a composite of many factors, including the nature of the offense, the circumstances (extenuating or aggravating) of the offense, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of a return of the offender to a normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the current community need, if any, for such a deterrent in respect to the particular type of offense involved. It appears that the sentence imposed has followed all those principles and that although considered to be extremely lenient 1065 in the light of the grave offense to which defendant pleaded guilty, it will have the consequence of inhabilitating defendant to become a lawyer. Just for this reason and no other is the request made that this defendant be sentenced under the provisions of the Youth Correction Act, 18 U.S.C. §§ 5005-5026. The legislative purpose of the Youth Correction Act is to provide young adult offenders who are likely to benefit from specialized treatment with an opportunity to reform. It was not envisioned as a tool for amelioration of punishment. The programs of the institutions for youthful offenders offer educational and vocational training so as to provide the youthful offender with skills which will enable him to compete, make a living and develop attitudes which are sociably desirable. The educational training to be received is certainly below the one that defendant has already received. In fact, it is the view of the Bureau of Prisons that the act should not be applied to young adult offenders unless there are persuasive affirmative reasons to believe that a particular offender will benefit by the specialized youth program. Furthermore, it has been also recommended in the aforementioned sentencing institutes that commitment as a youth offender is recommended only when the offender presents specific needs for treatment which can be provided only in a youth institution and the offender can benefit from the flexible provisions of the statute which permits discharge from supervision after a reasonable period of satisfactory community adjustment. We have found no such needs in the defendant. We further believe that the emphasis put in defendant's motion for reconsideration on the fact that upon completion of his sentence, if sentenced under the provisions of the Youth Correction Act, defendant will be in a position to complete his law career and become a practicing attorney, is misplaced. Although it is true that upon completion of his sentence defendant would be entitled to the automatic setting aside of said sentence, we are not convinced that the rights and privileges to be restored by such an amnesty include the annulment of the conviction, the right to negate the conviction, to be fully accredited as a witness, to hold office and to be the grantee of a license, and much less when the requisite for the granting of a license to practice law depends on reputation and/or character of the petitioner which cannot be changed by judicial fiat. Aside from the technical considerations discussed above, there remains the fact of the gravity of the offense and the much needed deterrence of others. This need is best exemplified by the defendant himself and those who were indicted with him. They were not discouraged or held back from the illicit business as to which they were found guilty even though the whole group was made up of well-educated, well-provided, mature individuals. For the above stated reasons, defendant's motion for reconsideration of sentence is hereby denied. It is so ordered.	{ "pile_set_name": "FreeLaw" }
943 F.2d 1317 Ganasv.Comr. of IRS* NO. 90-3551 United States Court of Appeals,Eleventh Circuit. AUG 21, 1991 1 Appeal From: M.D.Fla. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-1676 ___________ Thomas Scherer, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Curators of the University of Missouri * [UNPUBLISHED] d/b/a UMKC School of Law, * * Appellee, * * Law School Admission Council, * * Defendant. * ___________ Submitted: October 28, 2002 Filed: October 31, 2002 ___________ Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit Judges. ___________ PER CURIAM. Thomas Scherer appeals the district court’s1 final judgment for defendants, as well as several preliminary orders, in his action brought under the Americans with 1 The Honorable Dean Whipple, Chief Judge, United States District Court for the Western District of Missouri. Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213; section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); an unspecified “Civil Rights Act”; and the Missouri Sunshine Law, Mo. Rev. Stat. § 610.010 et seq. Having carefully reviewed the record, we find that the district court properly dismissed Scherer’s ADA claim against the Curators based on Eleventh Amendment immunity, see Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc) (Eleventh Amendment bars suits against state under Title II of ADA), cert. dismissed, 529 U.S. 1001 (2000); see also Sherman v. Curators of the Univ. of Mo., 871 F. Supp. 344, 348 (W.D. Mo. 1994) (holding that University of Missouri is state instrumentality entitled to Eleventh Amendment immunity); that the district court properly construed Scherer’s “Civil Rights Act” claim as brought under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, and dismissed the claim because Scherer did not state a claim under the statute, see 42 U.S.C. § 2000d (Title VI bars discrimination based on race, color, or national origin); Briehl v. Gen. Motors Corp., 172 F.3d 623, 627 (8th Cir. 1999) (complaint must at least contain facts that state claim as a matter of law); and that the district court properly granted summary judgment to the Curators on Scherer’s Rehabilitation Act claim, as Scherer admitted that the Law School did not consider his disability in making its admission decision, and he did not specify any accommodation the Law School should have provided him, see Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir. 1999) (elements of claim). We further find that the district court did not ignore an equal-protection claim or a claim under the Federal Educational Rights and Privacy Act, 20 U.S.C. § 1232g, as Scherer did not allege either claim against the Curators. We lack jurisdiction to consider an order entered in the United States District Court for the District of Kansas, which transferred the case to the United States District Court for the Western District of Missouri, see 28 U.S.C. § 1294(1); and from the denial of Scherer’s motion brought under Federal Rule of Civil Procedure 60(b), as he did not file a notice of -2- appeal or an amended notice of appeal after the district court denied the motion, see Fed. R. App. P. 4(a)(4)(B)(ii); Miles v. Gen. Motors Corp., 262 F.3d 720, 722-23 & n.3 (8th Cir. 2001). We find that the district court acted within its discretion in declining to exercise supplemental jurisdiction over Scherer’s remaining claim under the Missouri Sunshine Law, see 28 U.S.C. § 1367(c)(3); St. John v. Int’l Ass’n of Machinists & Aerospace Workers, 139 F.3d 1214, 1216-17 (8th Cir. 1998), but we clarify that the dismissal of the state claim is without prejudice. Finally, the district court properly ruled that all pending motions were moot once the court had correctly disposed of all of Scherer’s claims. Accordingly, the judgment is affirmed, and all motions pending before this court are denied. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -3-	{ "pile_set_name": "FreeLaw" }
49 Ill. App.3d 531 (1977) 364 N.E.2d 551 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAUDE J. HORTON, Defendant-Appellant. No. 76-15. Illinois Appellate Court First District (1st Division). Opinion filed June 6, 1977. James J. Doherty, Public Defender, of Chicago (Anthony Pinelli and Vincent M. Gaughan, Assistant Public Defenders, of counsel), for appellant. Bernard Carey, State's Attorney, of Chicago (Laurence J. Bolon and James S. Veldman, Assistant State's Attorneys, of counsel), for the People. Judgment affirmed. Mr. JUSTICE McGLOON delivered the opinion of the court: Defendant, Claude J. Horton, was convicted of burglary after a bench trial and sentenced to two years probation. On appeal, defendant argues that the circuit court of Cook County erred in denying his motion for suppression of fruits of an unlawful arrest. We affirm. 532 The pertinent facts are briefly summarized as follows. On May 7, 1973, Horton was fingerprinted for a matter entirely unrelated to the matter before us, and his fingerprints were placed on file. On March 25, 1974, a burglary was committed, fingerprints were discovered on the scene, and an automobile registered in Horton's name was observed parked near the burglarized premises while the crime was in progress. Horton was arrested shortly thereafter and fingerprinted, but for reasons beyond the scope of this appeal, the March 25, 1974, fingerprints were suppressed from evidence as being the fruits of an unlawful arrest. The police, having Horton's name as the registered owner of the auto observed near the crime scene, then consulted their files and discovered Horton's 1973 fingerprints. The prosecution planned to introduce into evidence a comparison of the 1973 fingerprints and the fingerprints recovered from the burglarized premises. Defendant objected on the grounds that the 1973 fingerprints were discovered by the police as a direct result of the unlawful arrest of March 25, 1974. The trial court denied defendant's motion. On appeal, defendant contends that the trial court erred in denying his motion to suppress the 1973 fingerprints because they were a product of and tainted by the illegality of the 1974 arrest. As defendant views the matter, the 1973 fingerprints were the fruit of the tree poisoned by the illegal arrest in contravention of defendant's rights. The prosecution argues that this case falls within the rule stated in United States ex rel. Owens v. Twomey (7th Cir.1974), 508 F.2d 858, and other cases, which is that controverted evidence is not fruit of the poisonous tree if it (1) was discovered by an independent source, (2) is sufficiently distant in causal connection from the illegal search and seizure so that the connection had been so attenuated as to dissipate the taint, or (3) the evidence inevitably would have been gained even without the unlawful search. It is particularly argued by the prosecution that defendant's 1973 fingerprints fall within tests one and three. Having reviewed the record, we agree with the prosecution. Although the chain of events in this case shows that the discovery of defendant's 1973 fingerprints was a result of police action following the granting of the first motion to suppress, the fact remains that the police would have inevitably found the 1973 fingerprints during their investigation. Turning back to the moment before the illegal arrest of March 25, 1974, the Chicago police knew the license number of the automobile which was parked near the burglarized home, and knew that the car was registered to defendant. The police also had fingerprints recovered from the crime scene. It was inevitable that had the investigation progressed in a lawful fashion, the police would have then found defendant's 1973 fingerprints 533 on file, to be compared with the crime scene fingerprints. We find no error herein. For the abovementioned reasons, the judgment of the circuit court of Cook County is affirmed. Judgment affirmed. GOLDBERG, P.J., and BUA, J., concur.	{ "pile_set_name": "FreeLaw" }
911 So.2d 614 (2005) Sidney A. HUGGINS, Appellant v. STATE of Mississippi, Appellee. No. 2004-KA-00132-COA. Court of Appeals of Mississippi. September 13, 2005. 615 Nathan Henry Elmore, Jackson, attorney for appellant. Office of the Attorney General by Scott Stuart, attorney for appellee. Before BRIDGES, P.J., MYERS and CHANDLER, JJ. BRIDGES, P.J., for the Court. ¶ 1. Charged with the murder of Jermaine M. Knight, Sidney Huggins went before the Hinds County Circuit Court, where his first trial ended in a mistrial. After his second trial, the jury found Huggins guilty of manslaughter. The circuit court sentenced Huggins to a twenty-year term in the custody of the Mississippi Department of Corrections. Huggins appeals and advances two contentions, listed verbatim: I. That the trial court erred in not allowing [Huggins] to question the State's forensic pathologist on the effects of large amounts of alcohol on a person's propensity to aggressive behavior and not allowing [Huggins] to argue the same to the jury in summation. 616 II. That the trial court erred in over-ruling [Huggins's] objections to the State's attempts to shift the burden of proof to [Huggins] and [it is] improper for him to prove his own innocence. Finding no error, we affirm. FACTS ¶ 2. Jermaine Knight, then twenty-one years old, died from gunshot wounds in the early morning hours of April 15, 2001. The events that set Knight's death into motion began at a nightclub called "It's All Good" in Jackson, Mississippi. Between midnight and 1:00 a.m., Marcus Sheriff and Sidney Huggins arrived at the nightclub. Certain testimony indicated that Knight "cursed" Huggins, then sixteen-years old, and told him to turn down the stereo in his blue Chevrolet Caprice. Knight and Huggins "locked up" but others at the scene broke up the fight. When Huggins and Sheriff went to leave, Knight reached into the Caprice, pulled the keys out of the ignition, and threw the car keys onto the roof of the nightclub, but the Caprice kept running. Witness testimony detailed that Sheriff and Huggins left, drove past the nightclub, and screamed something as they drove away. Ten or fifteen minutes later, Sheriff and Huggins returned to retrieve Huggins' keys from the roof of the nightclub. ¶ 3. Huggins stayed in the car while Sheriff retrieved the car keys. According to his testimony, Huggins reached under the car seat and retrieved a pistol that belonged to Sheriff. Huggins set the pistol on the seat next to him. Sheriff's testimony indicated that Knight approached the passenger side of the car after approximately thirty seconds. Huggins testified that Knight leaned into the passenger-side window, "cursed" him and threatened him for approximately forty-five seconds, and then reached into the window to hit Huggins. Huggins testified that he was afraid Knight was reaching for the pistol sitting on the car seat. Huggins also testified that he and Knight wrestled for the pistol before the first shot "went off." Knight's body went limp after the first shot, and he collapsed into the window with his upper body draped across the door. According to Huggins, he still felt threatened, so he shot Knight two more times. Knight eventually fell out of the window. Huggins testified that he stopped shooting after Knight fell out of the window. However, other eyewitness testimony indicated that Huggins kept firing even after Knight lay on the ground. That dispute notwithstanding, the evidence demonstrated that Huggins shot Knight multiple times. At least two of those shots were fatal. One bullet, most likely the first shot, went through Knight's chin and severed his spinal cord. Another bullet went into the left upper portion of Knight's back. That bullet passed through both lungs, the aorta, the esophagus, and fractured a rib before it exited Knight's body. Knight lost nearly four quarts of blood that collected in his chest cavity. A third bullet passed through two pelvic bones, though that was not a lethal wound. Afterwards, the blue Caprice backed up and left the scene. Two of Knight's friends attempted to get medical attention for Knight but he died on the way to the hospital. ANALYSIS I. Did the trial court err in refusing to allow Huggins to question the State's forensic pathologist on the effects of large amounts of alcohol on a person's propensity to aggressive behavior and refusing to allow Huggins to make that argument during his summation? ¶ 4. Huggins argues that the trial court unfairly limited his ability to put 617 forth his theory of the case. Huggins's argument stems from two of the trial court's decisions. The first decision came as a result of Huggins's cross-examination of Dr. Steven Hayne, a forensic pathologist. The second decision involves the trial court's limitation of Huggins's summation. We address them in turn. However, we must be mindful of our standard of review under the circumstances. "The standard of review of an admission or exclusion of evidence is abuse of discretion." Smith v. State, 839 So.2d 489(¶ 17) (Miss. 2003). ¶ 5. Dr. Hayne testified during the State's case-in-chief. After the State rested, Huggins called Dr. Hayne during his case-in-chief. When Huggins questioned Dr. Hayne about Knight's blood alcohol content, the trial court issued the following cautionary statement to the jury: As I have told you earlier, sometimes I allow you to consider certain evidence for limited purposes but not other purposes. This is one of those occasions, so I have an instruction I am going to give to you now. You may consider any evidence of the deceased's blood alcohol level as you may find, if at all, that it relates to or explains the deceased's state of mind and his thought processes at the time of or just prior to being allegedly shot by the defendant. You may not, however, consider such evidence in determining whether or not the deceased Jermaine Knight was the immediate provoker or aggressor at that time because alcohol levels affect different people in different ways, and there has been no evidence presented to you as to how increased alcohol levels normally affected the deceased in this case, Jermaine Knight. ¶ 6. On appeal, Huggins claims that the trial court's refusal to allow Huggins to elicit testimony from Dr. Hayne regarding the possible effects of a blood alcohol reading of .26, which was Knight's blood alcohol content at the time of his death, on a person's propensity to be argumentative, disagreeable or even violent was an unfair limitation on his ability to present his defense. While acknowledging that Dr. Hayne testified that a blood alcohol level of .26 percent would effect significant changes in personality, Huggins argues that he was not allowed to explore whether these significant changes in personality could include making a person more aggressive. Huggins offers the example that he could not question Dr. Hayne regarding how high levels of alcohol might make one more prone to argue, take offense, or push a grievance, as well as any increased likelihood to resolve disputes with violence. ¶ 7. As for his claim regarding his summation, the source of Huggins's complaint stems from the trial court's statement that, "you (Huggins) are not going to be allowed to argue to the jury that because of the intoxication level of Jermaine Knight, that he was acting more aggressive than he normally would." Huggins claims that this decision made it impossible for him to argue his case for self-defense based on the fact that he was confronted by a larger person, who "was drunk beyond reason" and was attacking Huggins. Further, Huggins claims that it was impossible for him to express his theory of the case without linking Knight's violent conduct to Knight's excessive consumption of alcohol. Though Huggins does not cite any rule of evidence, nor does he claim that the trial court abused its discretion in applying a particular rule of evidence, Huggins claims that the trial court's decision to forbid exploration of his theory results in reversible error. ¶ 8. We disagree. "Demonstrating that the victim of an alleged assault was a violent person such that the defendant would have good cause to defend himself is 618. . . covered by Rule 404(a)(2)." McNair v. State, 814 So.2d 153(¶ 6) (Miss.Ct.App. 2001). Generally, "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." M.R.E. 404(a). However, there are exceptions to that general rule. According to Rule 404(a)(2), the following evidence is admissible: Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor. M.R.E. 404(a)(2). ¶ 9. Huggins did not put forth any evidence suggesting that it was within Knight's character to behave violently, whether drunk or sober. That is, Huggins put forth ample evidence that Knight acted violently towards Huggins on the night in question, but Huggins did not submit any evidence that Knight was prone to act violently when drunk at any time other than the night that Knight died. ¶ 10. The trial court correctly articulated its concern that the evidence in question would not be useful unless Huggins laid a predicate showing how increased alcohol levels normally affected Knight. The trial court refused to let Huggins explore this line of questioning because there was no predicate for whether Jermaine Knight, the victim, was more aggressive when he consumed large amounts of alcohol. Still, Dr. Hayne testified that a person with a high level of alcohol would experience "significant changes in personality, in cognitive or reasoning ability." ¶ 11. Further, Huggins theory was self-defense, and it is irrelevant as to why Huggins may have felt the need to defend himself. Rather, what is relevant is that Huggins said he was afraid Knight would kill him. Huggins put that concept into evidence, so Huggins was not prejudiced by the trial court's restriction. ¶ 12. Lack of prejudice notwithstanding, any demonstration of Knight's tendency to behave violently when drunk can only be relevant to Huggins's self-defense claim if Huggins was aware of that tendency. In order to be relevant in a claim of self-defense, the victim's nature as a potential aggressor must not only be demonstrated, but it must also be shown that the defendant was aware of that nature, since only that combination of facts affects the reasonableness of the defendant's alleged fear of harm at the victim's hands which is a relevant source of inquiry by the jury in assessing a claim of self-defense. McNair, 814 So.2d at (¶ 7) (citing Rice v. State, 782 So.2d 171(¶ 16) (Miss.Ct.App. 2001)). Accordingly, we find no abuse of discretion in the circuit court's decision. II. Did the trial court err in overruling Huggins's objections to the State's line of questioning regarding the presence or lack of photographs corroborating Huggins's version of events? ¶ 13. During cross-examination of Huggins, the State asked him if he had pictures that corroborated his version of the events. That is, the State asked Huggins if he had pictures of his face after Knight allegedly struck him and if Huggins had pictures of his car with blood inside the passenger side door. Huggins did not. ¶ 14. On appeal, Huggins argues that the State's line of questioning was an attempt to shift the burden on him and *619 force him to prove his own innocence. Huggins admits that reversible error may arise where the State comments on a defendant's failure to testify, but "it is not error to comment on the defense's failure to offer any evidence whatsoever to counter or explain the state's evidence." Lee v. State, 435 So.2d 674, 678 (Miss.1983). Further, Huggins acknowledges that it is not improper for the State to argue in closing that a defendant's case is inadequate. Hobson v. State, 730 So.2d 20(¶ 27) (Miss.1998). Huggins attempts to distinguish the scenario and claims that the State's inquiry as to the existence of photographs of Huggins's face and the interior of his car made the jury conclude that Huggins was obligated to provide photographic evidence of his assertions. ¶ 15. This Court will not reverse a conviction unless we are convinced that the remark contributed to the verdict. Green v. State, 887 So.2d 840(¶ 8) (Miss.Ct.App. 2004) (citing King v. State, 788 So.2d 93(¶ 16) (Miss.Ct.App.2001)). The trial judge adequately instructed the jury regarding the State's burden of proof. The circuit court instructed the jury that every person is presumed innocent, and the State had the burden of proving every element beyond a reasonable doubt. Further, the circuit court instructed the jury that Huggins was not required to prove his innocence. The State's inquiry during cross-examination of Huggins as to the existence of photographs did not shift the burden of proof, and this Court is not convinced that the questions contributed to the verdict. ¶ 16. THE JUDGMENT OF THE FIRST JUDICIAL DISTRICT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY. KING, C.J., LEE, P.J., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.	{ "pile_set_name": "FreeLaw" }
46 So.3d 57 (2010) McGHEE v. STATE. No. 2D10-3019. District Court of Appeal of Florida, Second District. September 29, 2010. DECISION WITHOUT PUBLISHED OPINION Mandamus denied.	{ "pile_set_name": "FreeLaw" }
442 S.W.2d 939 (1969) Francis M. SHARP, II, Eaton Truck Line, Inc., by Its Receiver, Fred A. Murdock, Third-Party Plaintiff-Appellant, v. INTERSTATE MOTOR FREIGHT SYSTEM, Respondent. No. 53371. Supreme Court of Missouri, En Banc. June 25, 1969. 941 William M. Austin, Walter R. James, North Kansas City, Lane Bauer, Kansas City, for appellant. William H. Sanders, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, J. M. Neath, Jr., Warner, Norcross & Judd, Grand Rapids, Mich., for respondent. HOUSER, Commissioner. This is an appeal by third-party plaintiff Eaton Truck Line, Inc., by its receiver Fred A. Murdock, from a judgment entered in a third-party proceeding. Interstate Motor Freight System, a Corporation, is third-party defendant. Third-party plaintiff Eaton sought a declaratory judgment with reference to the rights, duties and liabilities of the parties arising out of a contract of sale of Eaton's rights to operate as a common carrier of property in interstate commerce by motor vehicle, and a contract of lease made thereunder; for a cease and desist order, and for judgment against Interstate "for the amount of the benefits it is determined Interstate has derived from the conduct of the operations covered by the subject operating rights, without a lease of such operating rights from February 11, 1965 to date of judgment (alleged to be $7,100 per day from May 12, 1965 until it ceases its operations), for the amount of expenses the Receiver has incurred to date of judgment (alleged to be `substantial') resulting from the aforesaid conduct of Interstate * ." Third-party defendant Interstate filed a counterclaim for breach of contract, praying for damages "equal in amount to all sums paid by Strickland Transportation Co., Inc. to Receiver Murdock under the so-called agreement between them of April 6, 1965 (alleged to be $1,600 per month from and after May 5, 1965 `to the present time'), plus reasonable attorney fees and costs incurred" in the litigation. The limited issue tried was the liability of the parties under the contract and lease. This issue was defined by a pretrial order as follows: "The trial of this cause shall be limited to the issues of liability between the parties, together with the right of the parties to recover damages either on third-party plaintiff's petition or third-party defendant's counterclaim, together with all other issues relating to relief sought by the pleadings, but no evidence shall be received nor will any determination be made by the Court as to dollar amount of damages to be recovered by either party." The judgment from which third-party plaintiff Eaton appealed found that Eaton was not entitled to the declaratory relief it sought, or injunctive relief or damages. It declared the contracts of October 3 and 4, 1962 still operative; that Interstate is not precluded by the terms of the contracts from purchasing Eaton's rights and is not estopped therefrom by its conduct, and that Interstate has a continuing right to purchase and lease the Eaton certificates and operating rights, subject to approval by the Interstate Commerce Commission. Third-party defendant Interstate was adjudged to take nothing on its counterclaim against Eaton. It was further ordered that 942 the judgment on the limited issue be deemed a final judgment for the purpose of appeal. The effect of the court's finding was to deny each claim of third-party plaintiff Eaton, including its claim for damages in a sum far exceeding the amount which establishes jurisdiction in this Court. We therefore have jurisdiction of this appeal by reason of the amount in dispute, notwithstanding the issue tried was limited to the question of liability, on analogy to the cases of Conley v. Fuhrman, Mo.Sup., 355 S.W.2d 861; Bogus v. Birenbaum, Mo. Sup., 375 S.W.2d 156; Finley v. Smith, Mo.App., 170 S.W.2d 166, transferred, 352 Mo. 465, 178 S.W.2d 326; Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, and Superior Concrete Accessories v. Merle E. Kemper Co., Mo.Sup., 284 S.W.2d 482. On October 3, 1962 Eaton and Interstate entered into a written contract, subject to approval by ICC, for the sale by Eaton and purchase by Interstate of all of Eaton's rights to operate as a common carrier of property in interstate commerce by motor vehicle, including rights evidenced by two certificates of convenience and necessity issued by ICC, for $105,000. Interstate agreed to apply for authority for the transaction, which was to be consummated within the period prescribed by ICC, "but if the Interstate Commerce Commission, by final order, denies authority to transfer the involved rights, then Purchaser shall have the right to assign this contract to any person or corporation which is not a carrier as defined by the Interstate Commerce Act, provided that said assignment is made within thirty (30) days of the effective date of said final order and Seller receives written notice thereof within said period. Otherwise, neither party shall have any further rights or obligations hereunder." The contract further provided that "Pending final approval of this transaction, the parties will seek authority for Buyer to temporarily lease and operate," and provided for payments of $1,600 per month by buyer to seller until an application "for permanent authority to purchase said Certificate is disposed of; provided that if and when rental payments reach a total of One Hundred Five Thousand Dollars ($105,000.00), no further rental payments shall be required. * * " On October 4, 1962 Eaton and Interstate entered into an ancillary written lease of Eaton's operating rights to Interstate, by which the parties agreed to promptly file application with ICC for authority for transferee temporarily to conduct operations under transferor's rights; agreed that in the event such temporary authority was granted transferee should conduct operations as authorized by transferor's certificates "until final determination of the application for permanent authority," and that transferee pay $1,600 per month during the period of such temporary authority. Such payments were agreed to be credited upon the purchase price "in the event of approval of such transfer." No further rental payments were to be required if and when rental payments reached a total of $105,000. Interstate applied for and was granted temporary authority and on October 17, 1962 began operating thereunder between St. Louis and Kansas City. Interstate's application for authority to sell and transfer was heard by an ICC hearing examiner who in March, 1964 filed a recommended report denying approval of the purchase by Interstate. The latter filed exceptions. At that juncture Eaton went into receivership. On November 16, 1964 ICC made an order adopting the hearing examiner's recommendations. Interstate filed a petition for further hearing. On February 10, 1965, by an order effective February 11, 1965, ICC denied Interstate's petition for further hearing, adopted the hearing examiner's recommended report and order, and set an effective date for the termination of operations by Interstate ninety days thereafter, or May 12, 1965. On February 13 or 15 Interstate's general counsel and secretary informed Eaton's receiver that ICC had denied Interstate's application; 943 that Interstate was not going to follow the procedure for judicial review, but that Interstate would be willing to join in such a procedure if Eaton or the receiver wanted a review; that there was a possibility that Interstate might want to exercise its right to assign the Eaton rights, in which event Interstate would want to work out some kind of an inter-line agreement. On February 18 Interstate's vice-president informed the receiver that Interstate was not going to assign the contract to a noncarrier and that the receiver should seek another buyer, arrange "to get the rights in operation" and have his attorney call Interstate's general counsel and arrange for "an orderly turnover" of the operation. Eaton's counsel communicated with Interstate's general counsel and confirmed the fact that Interstate was not going to seek judicial review or assign its rights. On February 22 Interstate's general counsel and secretary told an attorney for Eaton and its principal stockholders that the management and directors had decided not to appeal or seek to enjoin enforcement of the ICC order and not to assign the operating rights under the contract, but suggested that Interstate would be pleased if the receiver appealed the ICC order; that Interstate would cooperate in any reasonable way in furthering such an appeal. Counsel for Eaton "told him very bluntly we [Eaton and the receiver] were not in any financial position to do this." Interstate's representative said that Interstate would operate until May 12 but not thereafter. Eaton's counsel informed Interstate's representative that Eaton and the receiver would find a new purchaser or in some way try to save the operating rights from lapsing and being extinguished. Eaton and the receiver began looking for a new purchaser. Interstate revoked its powers of attorney with the freight tariff bureaus as they related to Eaton's rights; issued instructions to the bureaus that its tariff provisions were to be cancelled effective May 12, 1965, and cancelled the lease on its Missouri terminal premises at Windsor effective May 12, 1965. On March 10 Interstate's general counsel and secretary advised a creditor of Eaton that Interstate would terminate operations on May 12, 1965; that it did not intend to assign, but that Interstate hoped the receiver and the attorneys for the principal stockholders of Eaton would appeal, although they had "heard nothing further from them." Interstate paid its lease money for the month of May for the first twelve days only. Interstate did not at any time exercise its contractual right to make an assignment. On April 7, 1965, in reliance on the assurances and conduct of Interstate's officers and general counsel, Eaton's receiver entered into a contract to sell Eaton's rights to Strickland Transportation Company, Inc., of Dallas, Texas, for $112,500 and leased Eaton's rights to Strickland pending ICC approval of the purchase contract. On April 7 Interstate's general counsel, at the request of counsel for the receiver, agreed to supply detailed financial data for use in connection with the preparation of a "Section 5" application by a prospective purchaser for ICC approval of a contract for the purchase of the Eaton rights. Interstate was advised at that time that the receiver had entered into a tentative agreement to sell the rights and that an application was to be made to the receivership court for approval of the sale. On the next day, April 8, Interstate by air freight shipped several boxes of financial data to Strickland at Dallas, Texas. The receiver applied to the receivership court and obtained approval of the contracts with Strickland on April 14. On May 6 or shortly thereafter Interstate's president, having learned that ICC had granted Strickland temporary authority to operate the Eaton rights, in a 180-degree reversal of position directed company counsel to seek judicial review of the ICC order of February 10. Pursuant to instructions Interstate's counsel prepared and on May 10 filed in a federal district court in Michigan a suit to enjoin enforcement of ICC's 944 order of February 10. The federal court issued a temporary and eventually a permanent injunction vacating and setting aside the order of February 10, the effect of which was to stay the effective date of the ICC order of February 10, thus permitting Interstate to continue under its temporary authority. Thus the anomalous situation developed in which at least for a time both Interstate and Strickland were operating the same rights under temporary permits. Plaintiff's Exhibit 35 is a report and order of the ICC hearing examiner upon further hearing of the Interstate and Strickland applications for authority, dated August 18, 1966, in which both applications were denied and the temporary authorities previously granted to both were ordered terminated 90 days from the service date of the order. There is nothing in the record or exhibits to indicate whether the ICC has finally passed upon the report of the hearing examiner, and whether a choice has finally been made between the rival applications of Interstate and Strickland. The circuit court ruled in effect that by the use in the contracts of the terms "final order," "final approval" and "final determination of the application for permanent authority" the parties intended and meant a final unappealable decision of a court of last resort; that in the drafting of these contracts the parties contemplated and intended to reserve the right to appeal adverse rulings of ICC by the method of judicial review provided in 5 U.S.C.A., Chapter 7, and did not contemplate that their rights should terminate when their remedies before the administrative agency were exhausted; that judicial review having been sought there has not yet been any "final determination of the application for permanent authority," but that Interstate's right to purchase has been extended by the review procedure; that the contracts are still operative and Interstate has not been precluded from purchasing the rights, if it can win ICC approval on a further application. The receiver's first two points challenge this ruling. The receiver contends that Interstate's right to purchase terminated on February 11, 1965, the effective date of the ICC order [no assignment having been made by Interstate during the following 30-day period], for two reasons: first, because of the language of the contracts; second, because Interstate is estopped by its conduct from denying the validity of the receiver's contract with Strickland. On this review of a court-tried, jury-waived case it is our duty not to set aside the judgment unless clearly erroneous. Civil Rule 73.01(d), V.A.M.R. On the construction of the contracts: the receiver contends that the ICC order effective February 11, 1965 was the final order of ICC within the contemplation of the contract as the terms "final order," "final approval" and "final determination of the application for permanent authority" are used therein; that by the use of these terms the parties intended and meant that ICC's final order denying the authority would effectively discharge the contracts and end all rights under the contract, except for the right to assign within 30 days after the final order (a right never exercised); that the timetable agreed upon by the use of the above-quoted terms contemplated only agency action and not that the terminal date as thus defined be extended by taking steps looking to judicial review. These terms refer to administrative finality; final agency action; final action of ICC in this instance. By using these terms, however, the parties did not necessarily fix the terminal date of their rights under the contract at a time 30 days after the date on which the ICC order should become administratively final. The contracts did not expressly so provide. The parties did not agree that ICC be the final arbiter. There was no provision that the parties would be conclusively bound by 945 ICC's final order. The parties could have, National Surety Corp. v. Fisher, Mo.Sup., 317 S.W.2d 334, but did not, waive their right to obtain a judicial review. Such a right will be held to have been expressly waived only where the intention to waive clearly appears from the terms of the agreement and is supported by sufficient consideration. 4 C.J.S. Appeal & Error § 210c. A waiver may be implied from acts or conduct but to have implied waiver the acts and conduct depended upon must be clearly inconsistent with the right. 4 C.J.S. Appeal & Error § 211. The right to a judicial review, as indicated, was not expressly waived in the contracts of October 3 and 4. Nor is a waiver to be implied under the facts and circumstances. The parties' construction of their rights in this respect sheds light on their intention at the time they contracted. After ICC acted with administrative finality the parties unquestionably contemplated the possibility of judicial review. They considered and discussed whether such proceedings should be instituted. Interstate, at first declining to initiate the proceedings, expressed the idea that it would be pleased if the receiver sought review. (Evidently Interstate hesitated because of apprehension that pursuing judicial review might interfere with the relationship between Interstate and ICC, with whom Interstate was obliged to deal constantly.) The receiver indicated that he could not pursue the remedy because of financial embarrassment. The receiver contracted with Strickland on the basis of Interstate's representations that the latter was not going to seek judicial review. When the president of Interstate learned that Strickland had been granted temporary rights Interstate changed its position with reference to appeal, and actively sought, pursued and procured a judicial review of the ICC order. A federal statute[1] in full force and effect on October 3, 1962 granted the right of judicial review to anyone adversely affected by an agency order. It is a fundamental rule that the laws which exist at the time and place of making a contract, and at the place where it is to be performed, affecting its validity, construction, enforcement, termination and discharge, enter into and form a part of the contract as if they were expressly referred to or incorporated therein. Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 125 [2]; Curators of Central College v. Rose, Mo.Sup., 182 S.W.2d 145, 149 [4]; Swabey v. Boyers, 274 Mo. 332, 203 S.W. 204, 205 [1]; Hubbard v. Hubbard, Mo.App., 264 S.W. 422, 423 [1]; Bowers v. K. C. Pub. Serv. Co., 328 Mo. 770, 41 S.W.2d 810, 812-813 [4, 5]; State ex rel. Hobart v. Smith, 173 Mo. 398, 73 S.W. 211, 217; Emerson v. Treadway, Mo. App., 270 S.W.2d 614. This statute in its "direct or necessary legal operation controlled or affected the obligations of" the contracts in question. See Connecticut Mut. Life Ins. Co. v. Cushman, 108 U.S. 51, 65, 2 S.Ct. 236, 245, 27 L.Ed. 648, 653 [6]. There having been no contractual provision excluding the right of judicial review, the statutory provision of this right entered into and formed an integral part of the contracts of October 3 and 4 the same as if expressly referred to or incorporated therein. The time within which Interstate could exercise its rights under these contracts, therefore, was extended for the period of judicial review, unless under the circumstances of this case Interstate was estopped. It is argued that the time within which an aggrieved party might seek judicial review is limited only by the operation of the doctrine of laches and that as a practical matter parties to a contract of this type would not enter into such an "open-end" agreement with no specified time limit for the filing of proceedings looking to judicial review; that reasonable businessmen would not wish to be obligated under such contingencies and uncertainties. The answer 946 to this argument is that both contracting parties, aggrieved by the refusal of ICC to give its approval to the transaction in which they were jointly interested, had control over the time within which the review would be sought. Either could file the proceedings for judicial review at any time after the ICC order became administratively final. On the issue of estoppel: Just as a party may be estopped from taking an appeal by acts performed after the rendition of the order or judgment which are clearly inconsistent with the right of appeal, Winsor v. Schaeffer, 224 Mo.App. 1220, 34 S.W.2d 989, and authorities cited, 990; 4 C.J.S. Appeal & Error § 211, so a party may be estopped from claiming rights or benefits arising from the taking of an appeal. Likewise a party may be estopped by conduct from claiming rights or benefits arising out of a contract, or from denying the validity of another's contract. Without a duplicating recital of the facts suffice it to say that Interstate's conduct after February 11, 1965 in making representations to the receiver that it would not seek judicial review of the ICC order; its encouragement of the receiver to find another buyer and its action, after receiving constructive notice of the fact that the receiver had contracted with another for the sale of the Eaton rights, in seeking judicial review and renewing its insistence on its contractual rights after the receiver in reliance on Interstate's representations had changed his position, make out a case of estoppel, except for the element of detriment to the receiver. The circuit court concluded, and we find, that detriment was not shown in view of evidence that the receiver had an indemnifying agreement to protect him; that he had procured a new sale for a price greater than that which Interstate agreed to pay, and that he was receiving a total of $3,200 in monthly payments under two leases, instead of $1,600 under one. For the lack of a showing of this essential element the plea of estoppel must be disallowed. The receiver asserts that there was detriment (1) "by reason of all the legal proceedings caused by Interstate's conduct"; (2) "based upon unjust enrichment" [citing Interstate's allegation in one of the proceedings that it had profits of $7,100 a day arising out of the operation of the Eaton rights], and (3) arising out of the indemnity agreement with Strickland, but that no attempt was made to prove these because of the pretrial order, supra. Doubtless the litigation was burdensome and disadvantageous, causing the receiver considerable loss of time and money (although there is no evidence of this and any such conclusion must be based upon inference). Even so, at least as to the litigation initiated by the receiver, there is "some difference of opinion as to whether the bringing of a suit or other legal proceeding is a change of position within the law of estoppel." 28 Am.Jur.2d Estoppel and Waiver § 77, p. 714. Without expressing ourselves unnecessarily on this subject it is clear that legal detriment within the law of estoppel refers to detriment caused by a wrong or by the action or nonaction of the party claiming the estoppel in rightful reliance upon the truth of a representation, 31 C.J.S. Estoppel § 74, p. 452, fn. 41, and case cited, but does not include a detriment or disadvantage which it was within the power of the one asserting the estoppel to avoid or prevent. Apprised of Interstate's reversal of position the receiver was confronted with a choice between the two contracting parties. Either he had to repudiate the Strickland contract and perform his contractual obligations to Interstate or vice versa. He could have renounced the Strickland contract without suffering any loss or detriment, because of the protection afforded by the indemnity agreement signed by Strickland, but this he did not choose to do. Instead he chose to repudiate the Interstate contract and to do everything within his power to uphold the Strickland contract. As a result of this conscious choice the receiver became embroiled in numerous litigations. In effect he caused 947 or brought on himself any such consequential trouble and expense. Whatever detriment he suffered in this connection was self-inflicted. The receiver, claiming a right to recover large sums from Interstate on the theory of unjust enrichment, has advanced no basis for the claim and has cited no authorities supporting a recovery on the basis of a contract implied in law. We find nothing to indicate that Interstate was enriching itself unjustly at the expense of the receiver. Interstate's temporary operations under Eaton's permit were maintained under an express written contract by the terms of which Interstate paid for the privilege at the rate of $1,600 per month. The receiver further claims that the indemnity agreement signed by Strickland is not all-inclusive; that Strickland may be able to recover damages from the receiver for breach of contract, in which event damages would be recoverable by the receiver against Interstate. This theory is speculative, undeveloped and insubstantial. To remand the case for a trial of this issue would be like grasping for straws. We do not pass upon the receiver's point that the court erred in admitting the testimony of Interstate's lawyer who wrote the contracts of October 3 and 4, for the reason that this case was a court-tried case which on appeal we have reviewed as in the case of an appeal in an equity case. Having found that the circuit court correctly ruled it is now immaterial whether in reaching that result the judge may have erroneously considered some incompetent evidence. No point having been raised as to the judgment on the counterclaim the determination of the court on that issue has become final. The judgment below is not clearly erroneous. The court reached the right result and for the reasons given the judgment is affirmed. PER CURIAM: The foregoing opinion by HOUSER, C., written in Division One, is adopted as the opinion of the Court en Banc. The judgment is affirmed. All concur except SEILER, J., who dissents and adopts as his dissenting opinion the Memorandum of Dissent by WELBORN, C., and dubitante as to disallowance of plea of estoppel. WELBORN, Commissioner (dissenting). I must respectfully dissent from the opinion of Judge HOUSER in this case. The trial court concluded that the contract should be interpreted to extend the rights of Interstate for a term which would include the time permitted for judicial review of the Interstate Commerce Commission's order denying authority to transfer the rights. The trial court reached its conclusion on the basis of the testimony of the draftsman of the contract, the attorney for Interstate, that he intended to provide for judicial review. Judge HOUSER does not accept the trial court's basis for interpretation of the contract, but reaches the same result, primarily on the theory that the existing law provided for judicial review of the order and that the parties to the contract must be presumed to have contracted with reference thereto. The trial court undoubtedly applied an improper standard of interpretation when he relied on the statement of the draftsman, the representative of a party to the contract. The correct standard of interpretation is set out in § 230 of the Restatement of Contracts, p. 310, as follows: "The standard of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is 948 the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean." This standard would preclude reliance upon the statement of the draftsman as the basis for interpreting the agreement. The rule relied upon by Judge HOUSER is of limited value in this case. Corbin rejects such a rule as a rule of interpretation for contracts. As he points out: " * * [A]fter the terms of a contract have been interpreted, its legal operation can be determined only with due reference to all applicable constitutions, statutes and doctrines of the common law; but this is not a rule of Interpretation and the statutes and rules of law are certainly not incorporated into the contract." 3 Corbin on Contracts, § 551, p. 197. None of the cases cited in the opinion actually employed this rule in the interpretation of a written contract. The case of Connecticut Mutual Life Ins. Co. v. Cushman, 108 U.S. 51, 65, 2 S.Ct. 236, 245, 27 L.Ed. 648, cited in the opinion, states: "The laws with reference to which the parties must be assumed to have contracted * * * were those which in their direct or necessary legal operation controlled or affected the obligations of such contract." See Emerson v. Treadway, Mo. App., 270 S.W.2d 614, 623 [23, 24]. Here, the parties were free to contract as they saw fit as to when the rights and obligations under the contract should terminate. Interstate's counsel acknowledged that the phrase "final order" might refer either to "administrative finality" or what he referred to as "constitutional finality," involving the right of judicial review. The problem is one of interpretation in the light of this admitted ambiguity. In my opinion, the standard of interpretation quoted above from the Restatement must be applied. Considering the language of the agreement in the light of the relevant surrounding circumstances, I am of the opinion that the proper interpretation of the contract is that the rights of the parties thereunder were to terminate 90 days after the Interstate Commerce Commission's order became final, within the meaning of the statutes and rules governing the action of that agency. Of significance is the fact that a denial by the Interstate Commerce Commission of authority to transfer rights was seldom subjected to judicial review. The absence of such practice would indicate that neither party contracted with a view to such right. More important, however, is the fact that a contract limited to expire based upon the exercise of the right of judicial review, would be, in effect, an open-end agreement, because, as witnesses for both sides agreed, there is no definite period within which the right of review must be exercised. That the parties would so contract appears unreasonable, in the light of the definiteness which the interpretation contended for by the receiver would bring to the agreement. The conduct of Interstate's officers, as set out in Judge HOUSER's opinion, following the publication of the February 10, 1965 order of the Interstate Commerce Commission indicates that they considered the February 11 effective date of such order as the "final order" referred to by the agreement. True, there was evidence of some discussion of judicial review, but none indicating that either party might, by the exercise of such right, necessarily prolong the duration of rights and obligations under the contract. In my opinion, the contract should be interpreted as one under which Interstate's rights terminated on May 12, 1965, and the obligations of the parties, in this litigation, should be determined accordingly. NOTES [1] 5 U.S.C.A. § 702: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."	{ "pile_set_name": "FreeLaw" }

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