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938 F.Supp. 697 (1996)
UNITED STATES of America, Plaintiff,
v.
Perl Glen VAN PELT, Lewis T. Wacker, aka "Louie", John Lee Wacker, Susan Mary Boyle, aka "Van Pelt", Leroy Allen Cooley and Michael L. Lipp, aka "Mike", Defendants.
Nos. 92-40042-01-SAC, 92-40042-03-SAC, 92-40042-04-SAC, 92-40042-05-SAC, 92-40042-06-SAC and 92-40042-07-SAC.
United States District Court, D. Kansas.
July 8, 1996.
*698 *699 Stephen W. Kessler, Topeka, KS, for Perl Glen Van Pelt.
Michael L. Lewis, Topeka, KS, for Lewis Theodor Wacker.
F.G. Manzanares, Topeka, KS, Matthew B. Works, Works, Works & Works, P.A., Topeka, KS, for John Lee Wacker.
Dennis W. Moore, Moriarity, Erker & Moore, Olathe, KS, for Susan Mary Boyle.
James G. Chappas, Jr., Topeka, KS, for Leroy Allen Cooley.
Melanie J. Branham, Olathe, KS, for Michael Louis Lipp.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.
CROW, District Judge.
History of Case
On January 27, 1993, the grand jury returned a superseding indictment which charged the defendants with conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana, and use of a firearm during and in relation to a drug trafficking crime. Certain defendants with prior felonies were also charged with felon in possession of a firearm.
On July 9, 1993, after 7 days of deliberation, the jury returned separate verdicts regarding each of the defendants. In summary, the jury found the following:
Perl Van Pelt: Guilty on all counts (1, 4, 5, 6, 7, 8, 11, 12 and 13).
Lewis T. Wacker: Guilty on counts 1, 5, 6, 7 and 11; not guilty on counts 4 and 12.
John T. Wacker: Guilty on counts 1, 5, 6, 7 and 11; not guilty on counts 4 and 12.
Susan Mary Boyle: Guilty on all counts (1, 4, 5, 6, 7, 11 and 12).
Leroy Allen Cooley: Guilty on all counts (1, 4, 5, 6, 7, 9, 12 and 14).
Michael Louis Lipp: Guilty on counts 1, 2, 3, 5, 6, 7,[1] 10 and 11; not guilty as to counts 4, 12 and 15.
On August 17, 1993, the court denied the defendants' motions for new trial or judgment of acquittal. See United States v. Van Pelt, No. 92-40042-01, 03-07-SAC, 1993 WL 360329 (D.Kan. Aug. 17, 1993). On December 26, 1995, the Tenth Circuit entered an order affirming all of the defendants' convictions except that for those counts charging violations of § 924(c)(1).[2] The § 924(c)(1) *700 counts were reversed in light of the Supreme Court's decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See United States v. Wacker, 72 F.3d 1453 (10th Cir.1995). In Bailey, the Supreme Court defined the word "use" found in § 924(c)(1) in a manner substantially more narrow than the Tenth Circuit had previously construed the term. In Bailey, the Supreme Court held that "`use' must connote more than mere possession of a firearm by a person who commits a drug offense." ___ U.S. at ___, 116 S.Ct. at 506. In light of the Supreme Court's ruling, the Tenth Circuit reversed the convictions on Counts 2, 7 and 12, but remanded for a new trial only on Count 7. On February 13, 1996, the Tenth Circuit issued mandates in Cooley's and Edith Wacker's cases. On February 15, 1996, the Tenth Circuit recalled the mandates to correct a clerical error. On March 11, 1996, the Tenth Circuit entered an order denying rehearing but clarifying and correcting its December 26, 1995, opinion.
On March 21, 1996, the court received the mandate from the Tenth Circuit in each case. On April 15, 1996, the government filed a motion to dismiss count 7, which was granted by the court. See Fed.R.Crim.P. 48(a).
As the need for a new trial on Count 7 was obviated, the only remaining task for the court following the Tenth Circuit's remand is to resentence each of the defendants. Although each of the defendants benefit substantially from the vacation of the § 924(c)(1) convictions, in resentencing each of the defendants, the court must consider whether it is appropriate to enhance each sentence under USSG § 2D1.1(b)(1).[3]See United States v. Pollard, 72 F.3d 66, 68 (7th Cir.1995) ("[A]s the Supreme Court made clear last week, § 2D1.1(b)(1) of the guidelines casts a wider net than § 924(c)."); United States v. Johnson, 927 F.Supp. 399 (D.Kan.1996); see also United States v. Gary, 74 F.3d 304, 317 n. 11 (1st Cir.1996) (in contrast to § 924(c)(1) counts charging "use" of a firearm, sentencing guidelines may provide enhancements for mere possession of firearm during other offense), cert. denied, ___ U.S. ___, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996). Prior to vacation of the counts charging § 924(c)(1) violations, the court was precluded from enhancing the defendant's sentences pursuant to § 2D1.1(b)(1). See USSG § 2D1.1(b)(1); 2K2.4, comment 2; United States v. Bermudez, 82 F.3d 548, 550 (2nd Cir.1996) (double counting principles prevented district court from enhancing defendant's sentence under § 2D1.1(b)(1) at the same time as it was imposing the mandatory consecutive five-year sentence under § 924(c)(1)); United States v. Lang, 81 F.3d 955, 963 (10th Cir. 1996). The § 924(c)(1) counts having been vacated, the court must decide whether it is now appropriate to enhance each defendant's sentence under § 2D1.1(b)(1).
On April 19, 1996, the court held a conference with counsel to discuss the issue of resentencing. Prior to the conference, the court sent a letter to counsel setting forth the court's preliminary observations regarding resentencing. The court did this to aid counsel in analyzing the supplemental presentence reports which would be prepared by the probation department and to focus counsel on the sole remaining issue in this case.
Based upon the evidence presented at trial and contained in each of the presentence reports, it appeared to the court that there is a factual basis to enhance each defendant's sentence pursuant to § 2D1.1(b)(1). From the evidence presented at trial it was clear that Edith Wacker, one of the defendants' coconspirators, possessed, used and carried a firearm to protect the marijuana harvesting operation. Because Edith Wacker's coconspirators are liable for her foreseeable acts taken in furtherance of the conspiracy under USSG § 1B1.3,[4] a two *701 level enhancement appeared upon initial observation to be appropriate.[5] In reaching that tentative conclusion, the court compared the 1993 guidelines and the 1995 guidelines. No substantive difference exists which would benefit the defendants.
Based upon its preliminary assessment of the issue, it appeared to the court that there is both a legal and factual basis to enhance each of the defendant's sentences under section 2D1.1(b)(1). However, because the impact on Lipp's sentence is negligible in light of the mandatory minimum sentence the court was required to impose, and because the court would nevertheless impose a sentence of 120 months, the court will not enhance Lipp's sentence under § 2D1.1(b)(1). Cf. United States v. Coslet, 915 F.Supp. 271, 272 (D.Kan.1996) (Judge O'Connor does not enhance defendant's sentence pursuant to § 2D1.1(b)(1), finding that "the mandatory minimum sentence of 60 months is appropriate and that any possible enhancement, as the government requests, would be superfluous."); United States v. Fletcher, Case no. 92-40054-01-DES, 1996 WL 227781 (D.Kan. April 5, 1996) ("Because the defendant's current sentence of sixty months, the statutory mandatory minimum under 21 U.S.C. § 841(b)(1)(B), is within the guideline range that would be applicable with the § 2D1.1(b)(1) enhancement, the court denies the government's request for resentencing.").
Objections by the Defendants
Each of the defendants has filed objections to enhancing their respective sentences pursuant to § 2D1.1(b)(1). No defendant challenges the court's observation that a factual basis exists to enhance his or her respective sentence. Instead, the defendants' attacks center on the proposition that the Tenth Circuit's opinion and mandate limit the authority of this court to enhance their respective sentences. In short, the defendants contend that their respective drug convictions were affirmed by the Tenth Circuit and that the language in the Tenth Circuit's opinion and the limited scope of the mandate precludes this court from considering an enhancement pursuant to § 2D1.1(b)(1). The defendants also contend that enhancing their sentences will violate double jeopardy. The defendants also contend that the government, by failing to specifically request a remand from the Tenth Circuit to consider the issue of enhancement, waived the opportunity to seek enhancement.
In addition, counsel for Lipp advances one other argument which is without merit.[6] Lipp argues that "neither his case nor count 7 has been remanded to this Court." Although accurate in regard to Count 7 in regard to him, such a contention is otherwise directly contrary to the Tenth Circuit's mandate *702 in this case. Moreover, until this court resentences Lipp and vacates the § 924(c)(1) count from his sentence, the sentence originally imposed and as set forth in the "judgment in a criminal case" still contains the 5 year sentence imposed for his conviction of count 2.[7]
Tenth Circuit's Opinion and the Mandate
In the body of the Tenth Circuit's opinion, the court of appeals states:
Accordingly, we remand appellants Van Pelt, Boyle, Cooley, John Wacker and Lewis Wacker to the district court for retrial on the limited issue presented in Count 7 of whether Edith Wacker's gun was "used" within the meaning of section 924(c).
72 F.3d at 1465.
In the closing paragraph of the opinion, the Tenth Circuit states:
For the foregoing reasons, we REVERSE the convictions of Perl Van Pelt, LeRoy Cooley, Susan Boyle, Lewis Wacker and John Wacker of the firearms offense charged in Count 7, and we REMAND for a new trial only as to Count 7 in order to determine whether these five defendants "used" Edith Wacker's .22 pistol during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. § 924(c). We also REVERSE Michael Lipp's conviction as to Count 2, and we REVERSE the convictions of Perl Van Pelt, LeRoy Cooley and Susan Boyle as to Count 12. We AFFIRM the sentence of Michael Lipp as to all counts in the superseding indictment other than Counts 2 and 7. We also AFFIRM the sentences of Perl Van Pelt and LeRoy Cooley as to all counts in the superseding indictment other than Counts 7 and 12. However, we REMAND the sentence of Edith Wacker, with instructions that the district court specifically articulate the factual basis and findings necessary for imposing the "manager or supervisor" enhancement under U.S.S.G. § 3B1.1(b). We do not disturb the district court's findings of the drug quantity attributable to Edith Wacker's offense conduct. In all other regards, we AFFIRM the ruling of the district court appealed to us in these seven appeals.
72 F.3d at 1480.
The mandate in each case states as follows:
This cause came on to be heard on the record on appeal from the United States District Court for the District of Kansas, and was argued by counsel.
Upon consideration whereof, it is ordered that the judgment of that court is affirmed in part. The judgment is reversed in part. The cause is remanded to the United States District Court for the District of Kansas for further proceedings in accordance with the opinion of this court.
See (Dk. 622, 623, 624, 625, 626 and 627).
Law of the Case and The Mandate Rule
"Two related principles, the mandate rule and the law of the case doctrine, prohibit a district court from revisiting certain issues on remand." United States v. Polland, 56 F.3d 776, 777 (7th Cir.1995). "The mandate rule is a specific application of the law of the case doctrine." United States v. Stanley, 54 F.3d 103, 107 (2nd Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 238, 133 L.Ed.2d 166 (1995). "The rule serves a number of purposes, including finality of judgment and deference to the decisions of appellate courts." Id.
"Under the doctrine of law of the case, findings made at one point in the litigation *703 become the law of the case for subsequent stages of that same litigation." United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994). "A complimentary theory, the mandate rule, requires lower courts to adhere to the commands of a superior court." Id. "Accordingly,
[u]pon remand of a case for further proceedings after a decision by the appellate court, the trial court must `proceed in accordance with the mandate and the law of the case as established on appeal.' The trial court must `implement both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.'"
Id. (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991) (citations omitted)).
Pursuant to 28 U.S.C. § 2106, the court of appeals may issue general or limited remands to the district courts. United States v. Young, 66 F.3d 830, 835 (7th Cir. 1995). In the context of sentencing decisions, the statute authorizes the court of appeals "`to limit a remand to specific issues or to order complete resentencing.'" Young, 66 F.3d at 835 (quoting United States v. Polland, 56 F.3d 776, 777 (7th Cir.1995)).
In United States v. Moore, 83 F.3d 1231 (10th Cir.1996), the Tenth Circuit recently discussed the mandate rule:[8]
As this court has held, when a defendant's sentence is vacated on appeal and remanded for new sentencing, the lower court must begin anew with de novo proceedings. United States v. Ortiz, 25 F.3d 934, 935 (10th Cir.1994). The court went on to clarify that the de novo resentencing "permits the receipt of any relevant evidence the court could have heard at the first sentencing hearing." Id. (emphasis added); United States v. Warner, 43 F.3d 1335, 1340 (10th Cir.1994). As a consequence, the court on remand has the discretion to entertain evidence that could have been presented at the original sentencing even on issues that were not the specific subject of the remand. See United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995). This is consistent with the parameters of what has been labeled "the mandate rule": where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal. See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
The First Circuit has explained that the mandate rule, which generally requires trial court conformity with the articulated appellate remand, is a discretion-guiding rule subject to exception in the interests of justice. United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993). The Fourth Circuit has summarized these exceptional circumstances as: (1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) that blatant error from the prior sentencing decision would result in serious injustice if uncorrected. United States v. Bell, 5 F.3d 64, 67 (4th Cir.1993). Most importantly, the First Circuit further explained that the mandate rule is a rule of policy and practice, not a jurisdictional limitation, which thus allows some flexibility in exceptional circumstances. Bell, 988 F.2d at 251.
Moore, 83 F.3d at 1234-1235. See Moored, 38 F.3d at 1421.
In sum, "a district court, following the appellate vacation of a sentence, possesses the inherent discretionary power to expand the scope of the resentencing beyond the issue that resulted in the reversal and vacation of sentence." Moore, 83 F.3d at 1235.
The Sentencing Package
Although not specifically discussed by the defendants, by operation of the sentencing guidelines, each of the defendant's § 924(c)(1) sentences was interrelated to the sentences imposed for the drug trafficking offenses. Using the nomenclature adopted by the courts, the sentence imposed *704 by this court was a "package" as the existence of the § 924(c)(1) convictions precluded the court from enhancing the defendant's drug trafficking offenses for that same conduct. Most of the circuits apparently subscribe to the rule that "`a sentencing judge could on remand, increase the sentence on a specific count where the original sentence was imposed as part of a `package' that included a mandatory consecutive sentence which was subsequently found to be invalid.'" Bermudez, 82 F.3d at 550 (quoting United States v. Gelb, 944 F.2d 52, 59 (2d Cir.1991)). In United States v. Shue, 825 F.2d 1111 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987), the Seventh Circuit stated the rule as follows:
When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent. When, on appeal, one or more counts of a multicount conviction are reversed and one or more counts are affirmed, the result is an "unbundled" sentencing package. See, e.g., United States v. Thomas, 788 F.2d 1250, 1260 (7th Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 187, 93 L.Ed.2d 121 (1986). Because the sentences are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the district court's sentencing intent as to any one of the sentences on the affirmed convictions.
Thus, despite the previous panel's failure to vacate explicitly the sentencing package and remand for resentencing, we hold that the district court had the authority to reevaluate the sentencing package in light of the changed circumstances and resentence the defendant to effectuate the original sentencing intent.
825 F.2d at 1114. Similarly, in United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), the First Circuit opined:
When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.
874 F.2d at 14. In Jerkins v. United States, 530 F.2d 1203, 1204 (5th Cir.1976), the Fifth Circuit stated that "[u]nless it can be ascertained from the record ... that the District Court's sentence on a valid conviction was not affected by a subsequently invalidated conviction on another count of the indictment, the defendant must be resentenced on the valid conviction."
The Ninth Circuit has, however, apparently reached a contrary conclusion: "But a district court does not have inherent power to resentence defendants at any time. Its authority to do so must flow either from the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35." United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988) (citations omitted).
Court of Appeals' Decisions Since Bailey
In several appellate cases, having vacated the § 924(c)(1) counts in light of the Supreme Court's decision in Bailey, the court of appeals, either at the request of the government or apparently on its own initiative, has specifically remanded the case to the district court for resentencing to consider the appropriateness of enhancing the defendant's sentence pursuant to § 2D1.1(b)(1). See Bermudez, 82 F.3d at 550-51; United States v. Giraldo, 80 F.3d 667, 677 (2nd Cir.1996) (on remand, district court should consider the applicability of § 2D1.1(b)(1) enhancement in light of reversal of § 924(c) convictions); Lang, 81 F.3d at 963 (accepting government's argument that case must be remanded to district court to consider applicability of two-level enhancement pursuant to § 2D1.1(b)(1)); United States v. Roulette, 75 F.3d 418, 426 (8th Cir.1996) (government urges, and court of appeals agrees, that drug counts should be remanded to district court to consider enhancement under § 2D1.1(b)(1)). The court could find no opinion *705 specifically discussing the issue presented in this case.[9]
In Lang, the Tenth Circuit held that "when a defendant's conviction under 18 U.S.C. § 924(c) is reversed on sufficiency of evidence grounds on appeal, the case is subject to remand for resentencing to determine the applicability of the enhancement found at U.S.S.G. § 2D1.1(b)(1) to the facts of each particular case." 81 F.3d at 963-64. In contrast to Lang, the Tenth Circuit's opinion and mandates in the case at bar contain no express direction regarding the issue of enhancement.[10] In fact, the Tenth Circuit's opinion contains no express order to resentence the defendants in regard to the vacated § 924(c)(1) counts. Such resentencing is, however, necessarily required by the Tenth Circuit's opinion and mandates, as, irrespective of the issue of enhancement, this court must resentence the defendants and enter an amended judgment of conviction to reflect the Tenth Circuit's decision. See Fed. R.Crim.P. 32(d).
Based upon the Tenth Circuit's discussion of the mandate rule and weight of authority regarding the district court's authority following vacation of a conviction relevant to a sentencing package, the court concludes that the Tenth Circuit's opinion and mandates do not preclude the court from enhancing each defendant's drug trafficking sentence pursuant to § 2D1.1(b)(1). The fact that the Tenth Circuit "affirmed" the defendants' drug trafficking offenses was nothing more than a rejection of the defendant's attacks on those sentences. Nor does the fact that the Tenth Circuit's opinion specifically remanded the cases for a new trial on Count 7 change this court's analysis. As indicated above, unstated but implicit within the Tenth Circuit's opinion is the requirement that this court resentence each of the defendants. This court does not construe the Tenth Circuit's silence on the issue of enhancement as a tacit prohibition to such action. Nothing in the Tenth Circuit's opinion specifically limits the scope of this court's authority in regard to resentencing. Moreover, because the Tenth Circuit's decision specifically required retrial of Van Pelt, both Wackers, Boyle and Cooley on Count 7, and because all of the defendants but Lipp could possibly have again been convicted of that § 924(c)(1) charge, the Tenth Circuit was presumably aware that the double counting principles would again bar a § 2D1.1(b)(1) enhancement *706 based upon the same conduct charged in Count 7. Therefore, the fact that the Tenth Circuit's opinion and mandates did not set forth with specificity all of the possible permutations that might conceivably occur following remand is not an indication that enhancement is unequivocally barred by the scope of the mandate.
Nor does the court believe that the government waived the opportunity to seek an enhancement by failing to specifically raise the issue before the Tenth Circuit. Based upon an understanding of the legal principles set forth above, the government could reasonably have believed that it was unnecessary to raise the issue before the court of appeals to preserve its ability to seek an enhancement pursuant to § 2D1.1(b)(1). Cf., United States v. Fennell, 77 F.3d 510 (D.C.Cir.1996) (government did not waive its right to resentencing by not filing a conditional cross-appeal asserting that if the court were to vacate the § 924(c) conviction, the court should remand for resentencing on the drug count).
Finally, the court believes that considering enhancement following the Tenth Circuit's reversal of the defendant's § 924(c)(1) convictions at this juncture is consistent with stated goals of the Sentencing Guidelines. In enacting the Sentencing Reform Act of 1984, Congress sought to fulfill three objectives: (1) "[H]onesty in sentencing;" (2) "[R]easonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders;" and (3) "[P]roportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity." USSG Chapter 1, Part A, § 3 The Basic Approach (Policy Statement). If the court did not consider enhancement at this point in time, each of these goals would be subverted as the court is obligated to apply the guidelines uniformly to each defendant it sentences. It is extremely doubtful that the Tenth Circuit intended to thwart each of these goals in its remand to this court. Failure to consider enhancing each defendant's sentence at this point in time would simply be a fortuity to the defendants in this case, an event Congress clearly sought to foreclose in enacting the Sentencing Guidelines.[11]
In sum, the court does not believe that the Tenth Circuit's opinion and mandates limit this court's authority to consider enhancing the defendant's drug trafficking offenses pursuant to § 2D1.1(b)(1).[12]
Double Jeopardy
The defendants' contention that enhancement of their sentence at this point in time would violate double jeopardy is an incorrect statement of the law.
[A]ny expectation of finality in a sentence is wholly absent where ... the defendant requests that his prior sentence be nullified. The defendant has, by his own hand, defeated his expectation of finality and "the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice." United States v. Cochran, 883 F.2d 1012, 1017 (11th Cir.1989) (quoting United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978)). Given that sentencing is often a "package deal," we have noted that "the appealing defendant cannot claim an expectation that the sentence on any particular count is irrevocably final." U.S. v. Earley, 816 F.2d 1428, 1433 n. 6. (10th Cir.1987). *707 United States v. Welch, 928 F.2d 915, 916-917 (10th Cir.), cert. denied, 502 U.S. 850, 112 S.Ct. 153, 116 L.Ed.2d 118 (1991). See United States v. Moreno-Hernandez, 48 F.3d 1112, 1116 (9th Cir.) ("A resentencing mandate from an appellate court, however, does away with the entire initial sentence, and authorizes the district court to impose `any sentence which could lawfully have been imposed originally. (citations omitted) In the latter case, double jeopardy is not implicated."), cert. denied, ___ U.S. ___, 115 S.Ct. 2598, 132 L.Ed.2d 844 (1995); Shue, 825 F.2d at 1114-15.
Resentencing
In light of this ruling, it will be necessary for the probation department to prepare supplemental presentence reports reflecting the vacation of the § 924(c)(1) counts and discussing the appropriateness and impact of enhancement of each defendant's sentence pursuant to § 2D1.1(b)(1). Pursuant to D.Kan. Rule CR32.1(c), "[a]fter the final version of the [supplemental] presentence report has been provided to the parties, but no later than five (5) days prior to the sentencing date, the attorney for the government and/or the attorney for the defendant may file with the court a written statement setting forth their respective positions in regard to the sentencing factors, and facts which have not been resolved, in accordance with Guideline 6A1.2 and 6A1.3 and any amendments of the United States Sentencing Commission Guidelines Manual." The court will set each case for resentencing at an appropriate time in the near future.
Presence of the Defendants at Resentencing
In light of vacation of substantial portions of the defendants' sentences, and because the court may enhance the sentences of Van Pelt, Lewis Wacker, John Wacker, Boyle and Cooley, pursuant to § 2D1.1(b)(1), the court believes that it is appropriate for each of those defendants to be personally present at resentencing. See Fed.R.Crim.P. 43(a).
Whether Lipp's presence at resentencing is required is another issue. In light of the court's decision that it does not intend to enhance his sentence but simply vacate the § 924(c)(1) conviction in Count 2, the court instructs Lipp to file within twenty days of the date this order is filed a memorandum which discusses the following issues:
1. Does Lipp have either a statutory or constitutional right to be present at the resentencing in light of the court's ruling regarding enhancement?
2. If Lipp has either a statutory or constitutional right to be present at the resentencing, does he nevertheless choose to waive that right? See Fed.R.Crim.P. 43(b)(2).
The government may file a response within five days of the date Lipp files his memorandum.
IT IS SO ORDERED.
Table Regarding Remand for Resentencing in Van Pelt, et al.
-------------------------------------------------------------------------------
Defendant Original Original Guideline Tentative Net
Sentence Guideline range in Sentence Decrease
Imposed range of light of to be in
(Expressed all counts remand imposed Sentence
in Months) other than with
924(c)(1) enhancement
(Sentence
Imposed)
-------------------------------------------------------------------------------
Perl Van 511 188-235 235-293 264 247
Pelt (211) (Midpoint)
-------------------------------------------------------------------------------
Lewis 123 63-78 78-97 78 45
Wacker (63) (Low-end)
-------------------------------------------------------------------------------
John 138 78-97 97-121 97 41
Wacker (78) (Low-end)
*708
-------------------------------------------------------------------------------
Susan 397 97-121 121-151 121 276
Boyle (97) (Low-end)
-------------------------------------------------------------------------------
Leroy 436 121-151 151-188 169 267
Cooley (136) (Midpoint)
-------------------------------------------------------------------------------
Michael 180 78-97 120-121 120 60
Lipp (120)[1] (Low-end)
-------------------------------------------------------------------------------
NOTES
[1] Prior to sentencing, the court vacated Lipp's conviction on Count 7 based upon double jeopardy principles. United States v. Lipp, 1993 WL 544572 (D.Kan. Dec. 16, 1993) (memorandum and order providing parties with notice that it intended to vacate one of two 924(c)(1) counts based upon double jeopardy). In light of that ruling, the Tenth Circuit did not remand Lipp's case for a new trial on Count 7.
[2] A seventh codefendant, Edith Wacker, entered a guilty plea to conspiracy and to use of a firearm during and in relation to a drug trafficking crime. The Tenth Circuit remanded her case to this court for more specific findings regarding her role in the offense.
[3] Section 2D1.1(b)(1) provides:
If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.
[4] Section 1B1.3. Relevant Conduct (Factors that Determine the Guideline Range) provides:
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.
This subsection simply codifies the principles of Pinkerton liability in the sentencing guidelines. "A conspiracy participant is legally liable for all reasonably foreseeable acts of his or her coconspirators in furtherance of the conspiracy." United States v. Brewer, 983 F.2d 181, 185 (10th Cir.) (citing Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946)), cert. denied, 508 U.S. 913, 113 S.Ct. 2348, 124 L.Ed.2d 257 (1993).
[5] The court also distributed a chart to counsel which summarized the sentences originally imposed, the tentative sentence to be imposed if each defendant's sentence were enhanced, and the net savings following remand and resentencing. A copy of that table is attached to this memorandum and order.
[6] Lipp contends that "the enhancement provision of the Federal Sentencing Guidelines, § 2d1.1(b)(1), was in effect at the time of Lipp's sentencing and not utilized by this Court in sentencing." This argument is correct in regard to Count 7, as the court could have initially enhanced his sentence in regard to the conduct charged in count 7. However, the court's analysis regarding enhancement pursuant to § 2D1.1(b)(1) is equally applicable in regard to Lipp's § 924(c)(1) conviction in Count 2, which the court of appeals vacated. However, as indicated, this point is academic in light of the fact that the court does not intend to enhance Lipp's sentence.
[7] At the end his ten year sentence imposed regarding the narcotics violations, Lipp would presumably like to be released from incarceration. Because the Bureau of Prisons' custody of the defendant is controlled by the sentence imposed by this court as reflected in the journal entry of judgment (titled "Judgment in a Criminal Case"), see United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) ("After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence. See 18 U.S.C. § 3621(a) ("A person who has been sentenced to a term of imprisonment ... shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed"). To fulfill this duty, the BOP must know how much of the sentence the offender has left to serve."), the BOP would presumably be required to hold Lipp according to the terms of the sentence originally imposed by this court until instructed otherwise by this court.
[8] In Moore, the Tenth Circuit discussed the mandate rule in the context of analyzing the scope of the district court's authority in conducting a resentencing pursuant to 28 U.S.C. § 2255.
[9] Several district courts have considered, however, the appropriateness of enhancing a defendant's sentence pursuant to § 2D1.1(b)(1) in the context of entertaining a defendant's motion pursuant to 28 U.S.C. § 2255 to set aside § 924(c)(1) convictions. Compare Mixon v. United States, 926 F.Supp. 178 (S.D.Ala.1996) (District court vacates § 924(c) counts and enhances defendant's sentence pursuant to § 2D1.1(b)(1); "The vacation of the Section 924(c) convictions makes the Court's original sentence incorrect in its entirety, because without the Section 924(c) convictions, the Court would have enhanced Petitioner's offense level by two levels."); United States v. Seibert, No. 96-0851, 1996 WL 221768 (E.D.Pa. April 26, 1996) (district court vacates § 924(c)(1) conviction and defendant stipulates to enhancement under § 2D1.1(b)(1)); United States v. Trevino, No. 96 C 828, 1996 WL 252570 (N.D.Ill. May 10, 1996) (discussing "sentencing package" concept); United States v. Baker, No. 90-00432-01, 1996 WL 208449 (E.D.Pa. April 18, 1996) ("[E]ven if we were to have granted defendant's motion under 28 U.S.C. § 2255 we would still be faced with a recalculation of his sentence under the Sentencing Guidelines § 2D1.1(b)(1) and would not release the defendant for that reason.") with Beal v. United States, 924 F.Supp. 913 (D.Minn.1996) (district court vacates defendant's § 924(c)(1) conviction but denies government's request to enhance pursuant to § 2D1.1(b)(1); district court could identify "no basis for modifying a sentence imposed for a valid conviction after a successful collateral attack on a separate invalid conviction.").
[10] This court is confronted with a similar issue in United States v. Parker, Case No. 94-40018-02-SAC, 1996 WL 509629. See United States v. Parker, 1996 WL 202607, *1 (10th Cir. April 26, 1996) ("Appellant also raised in the letter, at least impliedly, the question of whether the weapons charge to which he pled guilty was supported by the record in light of Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). That allegation appears to be well-founded. We dismiss the appeal as to the issue of downward departure. We reverse the conviction and sentence for use of a firearm during drug trafficking, 18 U.S.C. § 924(c)(1), and remand to the trial court to determine whether the facts support the plea of guilty on the firearm count in light of Bailey. If they do not, the court shall enter an order expunging the count and deleting from the sentence the sixty months given for that count. The sixty-month sentence for conspiracy to possess with intent to distribute drugs is affirmed.").
[11] In this same vein, had the Tenth Circuit issued its opinion in this case before the Supreme Court's decision in Bailey, and had the defendants not sought certiorari from the Supreme Court, the defendants' only avenue would have been to seek collateral relief under § 2255. If the defendants were correct in their interpretation of the Tenth Circuit's opinion and mandates, it strikes the court as anomalous that the defendants would potentially fair better on direct appeal than they would under § 2255. See Moore, at 1235 (vacation of defendant's sentence pursuant to § 2255 required the district court to exercise its inherent discretion to determine the appropriate scope of the resentencing proceedings).
[12] Assuming, arguendo, that the Tenth Circuit's opinion and mandates were properly construed to limit the authority of this court regarding resentencing, enhancement would nevertheless be appropriate. As interpreted by the Tenth Circuit, the mandate rule provides some flexibility in an instance such as this one were a blatant error in the application of the sentencing guidelines would result if uncorrected.
[1] Although the guideline range for imprisonment was 78-97 months, the court was required to impose the mandatory minimum sentence of 120 months pursuant to USSG § 5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence."); see United States v. Richards, 67 F.3d 1531, 1537 (10th Cir.1995). Because of the negligible increase in the guideline range, and because the court would nevertheless impose a sentence of 120 months, the court does not intend to enhance Lipp's sentence pursuance to § 2D1.1(b)(1).
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709 F.2d 1510
U. S.v.Harris
82-1750
UNITED STATES COURT OF APPEALS Sixth Circuit
4/18/83
1
E.D.Mich.
AFFIRMED
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565 P.2d 1065 (1977)
Charles Arnold MOOK, Appellant,
v.
CITY OF TULSA, Appellee.
No. M-77-149.
Court of Criminal Appeals of Oklahoma.
June 22, 1977.
Rehearing Denied July 8, 1977.
Gordon D. McAllister, Jr., David Cole, Legal Intern, Tulsa, for appellant.
Waldo F. Bales, City Atty., Richard J. Kallsnick, Asst. City Atty., Tulsa, for appellee.
*1066 OPINION
PER CURIAM:
Appellant in this case, Charles Arnold Mook, a juvenile under the age of eighteen years, was charged, tried and convicted of Reckless Driving in violation of Title 37, Ordinance of the City of Tulsa, § 273, Case No. 219609 in the Tulsa Municipal Court. Sentence was fixed by jury at sixty (60) days in jail and a Twenty-five Dollar ($25.00) fine. Execution of sentence was stayed pending this appeal.
Charles Mook was arrested in Tulsa, Oklahoma on July 1, 1976, on said charge. Having been born March 4, 1960, he was sixteen years of age at the time of said arrest. Appellant was not certified to stand trial as an adult and for that reason has objected to the jurisdiction of the municipal court. Said objection was overruled by the trial court.
The question presented herein is whether a municipal court of record has *1067 jurisdiction to sentence juveniles to incarceration for violation of municipal traffic ordinances. We hold that it does not.
In general, a child charged with having violated any state statute or municipal ordinance shall be tried in the juvenile division of the District Court rather than in a criminal action. The criminal division of the district court and the municipal court are free to exercise concurrent jurisdiction with the juvenile division in cases wherein children are charged with violations of state or municipal traffic laws or ordinances. Title 10 O.S.Supp. 1974, 1112(a). To bring a child within the purview of the Juvenile Act, however, facts must be set forth in a petition to the district court showing that such child is either delinquent, in need of supervision, or dependent and neglected. See, 10 O.S.Supp. 1972, § 1102; 10 O.S.Supp. 1976, § 1103. Title 10 O.S.Supp. 1972, § 1101(b) defines "delinquent child" as follows:
"(1) a child who has violated any federal or state law or municipal ordinance, excepting a traffic statute or ordinance ... or (2) a child who has habitually violated traffic laws or ordinances."
Since a child charged with violation of a state or municipal traffic law or ordinance is not delinquent, he is therefore within the exclusive jurisdiction of the municipal court or the criminal division of the district court unless a verified petition is submitted to the district court setting forth facts indicating that such child is habitual violator of such traffic laws or ordinances and therefore delinquent.
Title 37, Ordinance of the City of Tulsa, § 273 provides in pertinent part:
"It shall be deemed reckless driving for any person to drive a vehicle in a careless or wanton manner without regard for the safety of persons or property..."
We hold that such ordinance is traffic in nature and that appellant charged with violation thereof was not delinquent and was therefore properly within the jurisdiction of the municipal court. The juvenile division of the District Court, based on the facts alleged, was without jurisdiction.
Appellant contends that a reading of the entire Juvenile Act compels the conclusion that the legislature intended that no child be sentenced to incarceration in a criminal action in the absence of certification proceedings. We agree. The Juvenile Act affords benefits to children not allowable to adults. Included are form of petition (§ 1103), custody (§ 1104), release to parents (§ 1107), temporary detention (§ 1108), conduct of hearings, including provision for privacy (§ 1111), and discretionary certification for adult proceedings after a preliminary hearing (§ 1112(b)).
Mr. Justice Black, concurring in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 1460, 18 L.Ed.2d 527 (1967) pointed out that juvenile laws of the various states are "the result of plans promoted by humane and forward-looking people to provide a system of courts, procedures, and sanctions deemed to be less harmful and more lenient to children than to adults." It is clear that in Oklahoma a delinquent child, within the purview of the Juvenile Act, may not be sentenced by the juvenile division of the District Court to incarceration in an adult correctional institution. Did the legislature intend that while a delinquent child may not be sentenced to confinement in an adult penal institution by the juvenile division, a non-delinquent child may be so confined by another division of the same court or by a municipal court? It would be unreasonable for this Court to hold that while the legislature chose to protect delinquent children from the evils inherent in an adult penal institution, it chose not to afford the same protection to non-delinquent children.
Title 10 O.S.Supp. 1976, § 1107(C) provides that under certain prescribed conditions, a child may be confined in a "police station, prison, jail or lockup" for a period of time not to exceed seventy-two hours. A reading of § 1107(B) reveals that the purpose of the statute is to provide peace officers the means of taking children into custody who are "found violating any law or ordinance ... ." But the legislature manifested its reluctance to allow children to be subjected *1068 to such confinement even for seventy-two hours by providing in § 1107(A):
"Whenever a child is taken into custody, unless it is impracticable or inadviseable or has been otherwise ordered by the court, he shall be released to the custody of his parent, guardian, attorney, or custodian ... ."
Examination of the title of an act can be a valuable aid in determining the intent of the legislature; the body of the act cannot be broader than the title. Brown v. State, Okl.Cr., 266 P.2d 988, 990 (1954). The title of S.B. No. 8 as indicated in Ch. 27 of the 1973 Session Laws for the 34th Legislature, First Regular Session, now cited as 10 O.S.Supp. 1976, § 1107 is as follows:
"AN ACT RELATING TO CHILDREN; AMENDING 10 O.S. 1971, § 1107; PROVIDING FOR CONFINEMENT OF CHILDREN; PROVIDING FOR THE RELEASE OF A CHILD TO CUSTODY OF PARENT, ATTORNEY, GUARDIAN, OR CUSTODIAN; PROVIDING FOR IMMEDIATELY TAKING A CHILD WHOSE CUSTODY HAS BEEN ASSUMED BEFORE A SPECIFIED JUDGE PENDING DISPOSITION OF CASE; PROHIBITING CONFINEMENT OF CHILDREN IN ASSOCIATION WITH CRIMINAL, VICIOUS OR DISSOLUTE PERSONS; PROHIBITING CONFINEMENT OF CHILDREN IN PRISONS OR JAILS; PROVIDING FOR EXCEPTIONS; AND DECLARING AN EMERGENCY." (Emphasis Ours).
The Title of S.B. No. 8, when considered together with the provisions of 10 O.S.Supp. 1976, § 1107, clearly indicates that the legislature intended to prohibit confinement of children in prisons or jails. It provided an exception in those instances where it becomes necessary for a peace officer to take into custody a child who is found violating any law or ordinance. In such instances confinement is appropriate only in the event that it is impracticable or inadvisable to release the child to the custody of his parent, guardian, attorney, or custodian pending the child's appearance before the court, and such confinement may not exceed 72 hours unless extended by order of the court. The act did not contemplate long term incarceration of children for any offense.
For the foregoing reasons, the judgment and sentence is MODIFIED from sixty (60) days in jail and $25.00 fine to $25.00 fine. As MODIFIED, the judgment and sentence is AFFIRMED.
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415 F.Supp.2d 628 (2006)
UNITED STATES of America ex rel. DRC, Inc., et al., Plaintiffs,
v.
CUSTER BATTLES, LLC, et al., Defendants.
No. 1:04CV199.
United States District Court, E.D. Virginia, Alexandria Division.
February 13, 2006.
*629 *630 Alan Mark Grayson, Mark Robert Mann, Victor A. Kubli, Grayson & Kubli PC, McLean, VA, for Plaintiffs.
Jennifer Jo Illingworth, Porter Wright Morris & Arthur, Albert Lambert, Wiley Rein & Fielding LLP, Washington, DC, for Defendants.
MEMORANDUM OPINION
ELLIS, District Judge.
At issue prior to trial in this qui tam action is whether to grant Relators' request for a jury instruction allowing adverse inferences to be drawn as a result of defendant Joseph Morris' assertions of his Fifth Amendment privilege. Specifically, Relators seek to have the jury instructed that it may draw adverse inferences from defendant Morris' assertion of his Fifth Amendment privilege in refusing to answer specific deposition questions.[1] For the reasons that follow, Relators' request must be granted in part and denied in part.
I.
Relators[2] have brought this qui tam action under the False Claims Act (FCA), 21 U.S.C. § 3729 et seq., naming as defendants Custer Battles, LLC (Custer Battles), and its related corporate entities Secure Global Distribution (SGD), Mideast Leasing, Inc (MEL), and Custer Battles Levant (CBL), as well as individual defendants Scott Custer, Mike Battles, and Joe Morris. Custer and Battles are the principals of Custer Battles. Morris served as Custer Battles' Chief Operating Officer in Iraq during the relevant time period. The suit alleges that defendants defrauded the United States government out of millions of dollars in Iraq during 2003 and 2004: *631 (1) by fraudulently inducing the Coalition Provisional Authority (CPA) to award Custer Battles a contract for the provision of security forces and related life support for the Baghdad International Airport (BIAP) in return for a firm fixed-price of $16.8 million; and (2) by submitting false invoices to the CPA during its performance of a contract for the provision of support services for the Iraqi Currency Exchange (ICE) project.
The facts pertinent to the resolution of Relators' request to draw adverse inferences from Morris' deposition may be succinctly stated.[3] Defendant Joseph Morris is a former employee and officer of defendant Custer Battles LLC (Custer Battles). As Chief Operating Officer for Custer Battles in Iraq starting in the summer of 2003, Morris was centrally involved in Relators' claims with respect to the ICE contract. The Relators' primary allegation is that claims submitted to the CPA for payment pursuant to the ICE contract were fraudulently inflated through the use of related shell companies. Specifically, Relators allege that the defendants hatched a scheme whereby Custer Battles would submit invoices indicating that it had paid certain related parties for materials and/or services required by the terms of the ICE contract, when, in fact, it had not done so. Relators further allege that, in order to provide evidence of the costs reflected in the Custer Battles invoices, defendants created subsidiary invoicespurportedly from various of Custer Battles' related companieswhich represented significantly inflated costs for the materials or services, and submitted these invoices to the CPA. Relators allege that, in fact, Custer Battles did not pay its related companies any money pursuant to these invoices. Morris, as the Custer Battles employee in Iraq with primary authority over the performance of the ICE contract, is alleged to have personally created several of these fraudulent invoices. For this reason, Morris' motion for summary judgment was denied with respect to his involvement in the alleged ICE contract scheme.[4]
Given Morris' status as a party defendant and his central role in the administration of the ICE contract, Relators understandably sought to depose him to ascertain facts relating to the alleged fraudulent scheme. This discovery effort failed, as Morris asserted his Fifth Amendment privilege against self-incrimination throughout the depositions and indeed *632 throughout this litigation. He has refused to testify about any matters conceivably bearing on his activity in Iraq or his knowledge of any fraud. Frustrated by Morris' refusal to testify, Relators seek an instruction permitting the jury to draw adverse inferences against Morris, as well as the other named defendants, based on Morris' refusal to answer. Initially, Relators listed no fewer than seventeen separate inferences they claimed were warranted based on Morris' refusals to answer any questions during discovery. When directed to do so, Relators, apparently acting alone,[5] limited the request to adverse inferences for Morris' refusal to answer the following six questions:
1. Did you or someone acting at your direction create and backdate leases with Custer Battles' related entities, and forge signatures on those leases, in order to receive payment under the ICE contract?
2 Did you do so at the direction of Scott Custer and Michael Battles?
3. Did Custer Battles, you, Scott Custer and Michael Battles intentionally submit or caused [sic] to be submitted false or fraudulent ICE contract invoices for payment or approval?
4. Did Custer Battles, you, Scott Custer and Michael Battles cause to be submitted the following invoices under the ICE contract? (listing exhibits).
5. Did Custer Battles ever actually pay to the entities identified in the Custer Battles invoices submitted under the ICE contract the amounts stated in those invoices, or did the entities ever actually pay to any third parties the amounts shown in the entities' invoices to Custer Battles?
6. Did Custer Battles, you, Scott Custer and Michael Battles create or cause to be created, and then backdate and forge, SGD, MEL, Laru and CBL invoices that falsely depict costs billed by the Custer Battles related entities to Custer Battles, in order to receive payment under the ICE contract?
Thus, Relators seek to have the members of the jury instructed that they may, but are not required to, draw the inference that had Morris answered these questions, the answers would have been adverse to the defendants.
II.
In considering Relators' request, it is first necessary to address whether an adverse inference is an appropriate and constitutionally permissible remedy for a civil defendant's assertion of his privilege against self-incrimination. Morris' invocation of his Fifth Amendment privilege, like the assertion of any privilege, stands in stark opposition to the otherwise liberal discovery rules, and "undermine[s] to some degree the trial system's capacity to ascertain the truth." Robert Heidt, The Conjurer's CircleThe Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062, 1082 (1982). And, while there is no doubt that a witness is entitled to assert the privilege in a civil case,[6] it is also clear that an adverse inference based on a refusal to answer in a civil case is an appropriate *633 remedy as it provides some relief for the civil litigant whose case is unfairly prejudiced by a witness' assertion of the Fifth Amendment privilege without placing the witness in the "`cruel trilemma' of choosing among incrimination, perjury, or contempt." Robert Heidt, The Conjurer's CircleThe Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062, 1086 (1982). For this reason, while an assertion of the privilege cannot be used to the detriment of a criminal defendant, a district court may constitutionally permit a jury to draw an adverse inference from the refusal to testify on Fifth Amendment grounds by either a witness or party in a civil suit. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ("[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them."); ePlus Technology, Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir. 2002) ("In a civil proceeding, a fact finder is entitled to draw adverse inferences from a defendant's invocation of the privilege against self-incrimination."). Thus, the Constitution does not bar Relators' requested relief.
While an instruction permitting adverse inferences to be drawn from a civil defendant's assertion of his Fifth Amendment privilege is constitutionally permissible, it is not always appropriate. A two step inquiry must be undertaken to determine whether such an instruction is appropriate in a particular case. First, it is necessary to determine whether there was a valid basis for the witness' invocation of the privilege.[7] This is necessary to ensure that courts, parties, and juries are not deprived of relevant evidence and to prevent the mischief and unfairness that might flow from an invalid invocation of the privilege. Illegitimate assertions of the privilege serve no constitutional purpose, and may, as here, merely tar Morris' co-defendants with the taint that stems from the assertion of the privilege. To avoid this unfairness, Relators must demonstrate that Morris' privilege was validly asserted. When the privilege is invoked during discovery, this validity issue is typically resolved via a motion to compel.[8] Although this did not occur here, the parties do not seriously dispute that Morris had a valid basis for asserting the privilege.
A valid assertion of the privilege requires only the existence of a plausible possibility that the person might be prosecuted in this country.[9] Thus, the privilege may not be validly asserted when the feared prosecution is barred by the statute of limitations, double jeopardy, immunity or limited to a foreign jurisdiction. See Sharp, 920 F.2d at 1171; see generally *634 United States v. Balsys, 524 U.S. 666, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998) (holding that concern with foreign prosecution was beyond scope of Fifth Amendment privilege against self-incrimination). But if there is any plausible possibility of a prosecution, invocation of the privilege is valid. In the instant case, the record clearly reflects a valid basis for Morris' assertion of his Fifth Amendment privilege. Notwithstanding that all of Morris' alleged fraudulent conduct occurred in Iraq, there is a plausible possibility that Morris might be prosecuted in the United States for conspiring to commit fraud given that one or more putative co-conspirators may have committed overt acts in the United States in furtherance of the conspiracy.[10] Thus, it appears that Morris had a valid basis for asserting his Fifth Amendment privilege when asked in deposition about his role in the alleged fraudulent scheme relating to the ICE contract.
That the privilege was validly invoked does not end the analysis. The second step in the analysis requires an assessment whether the requested inferences, which are a form of evidence, comply with the Federal Rules of Evidence. See Fed.R.Evid. 101, 1101. Thus, any adverse inferences must be relevant, reliable, and not unfairly prejudicial, confusing, or cumulative. See Fed.R.Evid. 402, 602, 403. There is no doubt that the subject of the inferences is relevant; each has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Fed.R.Evid. 401, 402. The requested adverse inferences are plainly relevant evidence. Viewed in insolation, Morris' assertions of privilege contain no relevant facts, but viewed as answers to the questions put forth by Relators' counsel during the deposition, Morris'"[s]ilence is often evidence of the most persuasive character." United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-54, 44 S.Ct. 54, 68 L.Ed. 221 (1923). This is so because the law presumes that a man falsely accused will object to allegations of criminal conduct. Indeed, the six selected questions Morris refused to answer in his deposition concern his involvement in the alleged fraudulent behavior, and an inference adverse to defendants drawn from his silence is relevant to proving the alleged fraud occurred. Thus, the requested adverse inferences satisfy the requirements of Rules 401 and 402.
Of course, the fact that a given inference may be relevant evidence does not mean that it is reliable evidence. Because a witness may only testify as to matters for which they possess "personal knowledge," any adverse inference drawn from Morris' testimonial silence requires finding that Morris had personal knowledge of the subject about which he refuses to testify. Fed.R.Evid. 602. This finding of personal knowledge must itself rely on the other evidence to be presented at trial; a conclusion as to the reliability of an inference cannot derive by bootstrapping from Morris' seemingly blanket invocation *635 of the privilege against self-incrimination.[11]See Doe v. Glanzer, 232 F.3d 1258, 1264 (9th Cir.2000) ("[T]he key to the Baxter holding is that such adverse inference can only be drawn when independent evidence exists of the fact to which the party refuses to answer."). This requirement seeks to avoid allowing adverse inferences from the refusal to give testimony in situations where the testimony, if given, would presumably be speculative in nature. Thus, for example, attempts to draw adverse inferences from Morris' invocation of his privilege against self-incrimination in response to questions about Custer's or Battle's state of mind are inadmissible without independent evidence that Morris knew their state of mind. This is not a problem here, as none of the six deposition questions inquire into matters as to which there is any doubt about Morris' personal knowledge. To the contrary, the record in the instant case contains ample evidence of Morris' involvement in the billing for the ICE contract, which in turn ensures that the proposed adverse inferences, should the jury choose to draw them, are not unreliable.
Finally, even if relevant and reliable, any inference drawn from Morris' assertion of his privilege against self-incrimination "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." Fed.R.Evid. 403. As already demonstrated, the probative value of most of the requested inferences is unassailable, but the Custer Battles defendants[12] contend that it is unfairly prejudicial to allow an inference to be drawn against their interests when they have no ability to control their former employee, who they contend was fired for theft and for engaging in an inappropriate relationship with a subordinate. In effect, the Custer Battles defendants argue that Morris is willing to suffer any inferences adverse to him as long as these inferences also taint his former employers.[13] In other words, the Custer Battles defendants argue that Morris' true reason for asserting the privilege is not fear of prosecution, but the desire to harm the Custer Battles defendants.
This argument cannot serve as the basis for exclusion under Rule 403. As long as Morris has a valid basis for asserting the privilege, his right to do so is absolute and it matters not what his real motive might be. Nor can the Custer Battles defendants claim that the prejudice that may result from allowing the inferences is "unfair prejudice." Had Morris elected to testify at trial that he engaged in fraud in connection with the ICE contract at the request of Custer and Battles (to take the most extreme hypothetical), such testimony would not be excluded as unduly prejudicial, despite the fact that Morris was no *636 longer under the control of Custer Battles. There is no logical reason why an inference drawn from Morris' refusal to testify about these issues should not likewise be admissible. See Brink's, Inc. v. City of New York 539 F.Supp. 1139, 1142 (S.D.N.Y.1982) affirmed, 717 F.2d 700, 707-10 (2d Cir.1983). As the Second Circuit pointed out in Brink's, such evidence is not prejudicial in the sense of being inflammatory, but, rather, "is prejudicial in the sense of giving support to a party's position, i.e., it is `damning.'" Brink's, 717 F.2d at 710 (citing United States v. Cirillo, 468 F.2d 1233, 1240 (2d Cir.1972)).
Even so, the permissibility of some adverse inferences against the Custer Battles defendants, does not mean that Relators are entitled to adverse inferences from the dozens of questions asked of Morris in the deposition. In addition to being cumulative, there is a danger that at some point the jury will become deaf to the substance of the questions asked and unanswered, and as a result, the specific inferences that are appropriately drawn will blur into a single inference that the defendants have committed all the acts alleged by the Relators. To avoid this result, it is necessary to reduce the number of requested inferences to those few that relate to the heart of the alleged fraud, and which have the most reliable basis. Those questions include the following:
1. Do you have any information suggesting that Custer Battles ever paid its related entities the amounts represented in the invoices submitted to the CPA, or that any of these related entities ever paid any other third party?
2. To the best of your knowledge, did Custer Battles ever inform the CPA that SGD, MEL, CBL and Laru were related entities?
3. Did you or someone acting at your direction create and backdate leases with Custer Battles related entities, and forge the signatures in order to receive payment from the CPA?
Each of these questions, and the inferences the jury will be permitted to draw from Morris' assumed invocation of the Fifth Amendment in response to these questions, relate to the very heart of the alleged fraud committed in relation to the ICE contract. Each of these adverse inferences has a basis in otherwise admissible evidence, and the three inferences will not be unduly prejudicial, cumulative or confusing. For these reasons, the Relators' request will be granted in part and denied in part, and the jurors will be instructed that they are permitted, but not required, to draw an adverse inference from Morris' invocation of the Fifth Amendment privilege against self-incrimination in response to the questions listed above.
An appropriate Order will issue.
NOTES
[1] Relators' motion in this regard was originally filed in connection with the parties' summary judgment motions. When those motions were resolved without reaching this motion, Relators requested an instruction permitting the jury to draw adverse inferences from Morris' assertion of his privilege.
[2] Relators include DRC, Inc., Robert Isakson, and William "Pete" Baldwin.
[3] For a more complete statement of facts see United States ex rel DRC Inc. v. Custer Battles, LLC, 376 F.Supp.2d 617 (E.D.Va.2005), which addressed the jurisdictional question whether Custer Battles' claims were actionable under the FCA, and concluded that FCA jurisdiction in this context turned on the source of the money used to pay the allegedly fraudulent claims. Allegedly false claims paid from funds belonging to the United States and thereby resulting in an economic loss to the United States are actionable under the FCA, whereas claims paid from funds that belonged to the Iraqi people, even if the United States acted as a custodian of the funds, are not actionable under the FCA. Id. at 641. Because the BIAP contract was paid entirely from funds belonging to the United States, the fraudulent inducement claim is actionable under the FCA in its entirety. Id. at 647. By contrast, all but the first $3 million of the moneys paid pursuant to the ICE contract were paid from the Development Fund for Iraq, which consists of funds belonging to the Iraqi people. Accordingly, only those fraudulent claims made to support the initial $3 million advance are actionable under the FCA. Id.
[4] See Order granting in part and denying in part Morris' motion for summary judgment, United States ex rel. DRC, Inc. v. Custer Battles, LLC, Case No. 1:04cv199 (January 23, 2006). Because Morris was not involved in submitting the BIAP proposal to the CPA, Morris' motion for summary judgment in relation to Relators' claims of fraudulent inducement was granted. Id.
[5] The parties were directed to meet and confer to reduce the number of adverse inferences to "two to three," but it does not appear that the parties ever did so.
[6] See McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924) (The privilege "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.").
[7] The Fifth Amendment privilege against self-incrimination is triggered if a statement is (i) testimonial, (ii) incriminating, and (iii) compelled. See, e.g., Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (Fifth Amendment does not protect a suspect's refusal to provide name). The focus here is on whether Morris' answers to the deposition questions might be incriminating.
[8] See, e.g., Belmonte v. Lawson, 750 F.Supp. 735 (E.D.Va.1990) (denying a motion to compel testimony withheld on the basis of the Fifth Amendment privilege against self-incrimination).
[9] United States v. Sharp, 920 F.2d 1167, 1170 (4th Cir.1990) (the 5th Amendment privilege against self-incrimination may be applied in a civil trial "not only to evidence which may directly support a criminal conviction, but to `information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.'").
[10] See 18 U.S.C. § 371 ("If two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."). See also United States v. Bowman, 260 U.S. 94, 98-99, 43 S.Ct. 39, 67 L.Ed. 149 (1922) (permitting extraterritorial application of a federal criminal fraud statute); United States v. Inco Bank & Trust Corp., 845 F.2d 919, 920 (11th Cir.1988) (defendant accused of participating in a criminal conspiracy under 18 U.S.C. § 371 may be prosecuted even if all acts performed in furtherance of the conspiracy were outside the United States).
[11] Fed.R.Evid. 602 provides that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness's own testimony." (emphasis added). Because a witness may not have personal knowledge of testimony which may nonetheless incriminate him, this inquiry requires a greater showing of reliability than the antecedent inquiry of whether the invocation of the fifth amendment privilege was appropriate in the first place.
[12] The Custer Battles defendants include all named defendants with the exception of Morris himself.
[13] In this regard, the defendants, specifically Custer and Battles, may attempt to rebut any inference against them through their own testimony.
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932 F.2d 968
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Malcolm R. HARBOUR, Personal Representative of the Estate ofRaymond J. Harbour, Deceased, Plaintiff-Appellant,v.ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants,Owens-Illinois, Inc., Defendant-Appellee.
No. 90-1414.
United States Court of Appeals, Sixth Circuit.
April 25, 1991.
Before BOYCE F. MARTIN, JR. and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.
PER CURIAM.
1
Malcolm Harbour, the personal representative and plaintiff on behalf of his late father, Raymond J. Harbour, appeals from the district court's grant of a directed verdict for defendant Owens-Illinois.1 Harbour also appeals from the district court's order bifurcating the trial, and from the court's quashing of three notices of depositions to be taken by Harbour. Because we believe that the directed verdict was properly granted, and that the court did not abuse its discretion in quashing the deposition notices and in ordering the trial bifurcation, we affirm the judgment.
2
* Raymond Harbour worked as a chemical engineer and supervisor for Dow Chemical from 1943 until 1979. During that time, he worked at Dow plants in Torrance, California and Midland, Michigan. Mr. Harbour died from mesothelioma in 1988, and his son filed this product liability suit alleging that Owens-Illinois was negligent in permitting the decedent to contract mesothelioma through occupational exposure to defendant's asbestos product during his work at the Torrance plant from 1948 to 1955.
3
Plaintiff's suit was originally scheduled for trial as part of a consolidated trial with three other asbestos product liability suits. All four cases were originally scheduled for trial on Tuesday, January 20, 1990. Discovery for these cases was to end on January 15, 1990. The other three cases settled the night before trial, leaving only plaintiff's action before the court.
4
Counsel for Owens-Illinois moved on the morning of trial to bifurcate the trial and try the issue of medical causation first. The court granted defendant's motion, but amended it so that the issue of product identification would also be tried first. Plaintiff's counsel objected to the motion, arguing that the bifurcation would not save time. The court disagreed, telling plaintiff's counsel that "I am not trying to be mysterious. If the jury decides against you, we have gained time.... If the jury decides in your favor, we have not lost time." Plaintiff's counsel did not argue that plaintiff would be prejudiced by the bifurcation.
5
After the bifurcation motion was granted, the trial was postponed until Thursday, January 22. Plaintiff's counsel then served notices of depositions that he proposed to take over the next four days. Plaintiff proposed taking three videotaped depositions for the purpose of admitting the videotapes as evidence. The proposed deposition of medical expert Dr. Albert Miller was to be taken on Thursday night in New York. The other two proposed depositions were to be of product identification witnesses, Richard Shively and Frank Lyle. Both of the witnesses lived in Southern California, and the depositions were to be taken on Saturday afternoon and evening.
6
Councsel for Owens-Illinois moved to quash all three notices as being untimely, burdensome, and oppressive. Owens-Illinois noted that all three witnesses had been listed on plaintiff's witness list since August 1989, and that such extensive travel during the trial was burdensome. Plaintiff's counsel explained that he delayed in taking the depositions because he thought the case might settle, and he did not want to incur the added expense. The district court quashed all three notices.
7
The trial began on Thursday morning. Plaintiff's counsel presented two witnesses; the plaintiff, Malcolm Harbour, and a medical expert, Dr. Bernard Naylor. Harbour spent little time on the stand. The only testimony relevant to this appeal was that his father told him two months before he died that "it rained asbestos" when he worked at the Torrance plant. Dr. Naylor's testimony was more extensive. He stated that mesothelioma was almost always caused by asbestos exposure, and that only a small exposure over a few months time was necessary to cause the disease. Based on a letter sent to him by plaintiff's counsel, which stated that Harbour had been routinely exposed to asbestos during his twelve years at the Torrance plant, Dr. Naylor concluded that Harbour's mesothelioma was caused by occupational exposure to asbestos. On cross-examination, however, Dr. Naylor testified that the slides containing tissue samples from Harbour's lungs did not indicate an occupational exposure to asbestos. He stated that he required a well-documented history of an occupational exposure to conclude that Harbour's disease was caused by asbestos, and that he relied on plaintiff's employment history for that foundation.
8
Plaintiff was unable to present any more witnesses after Dr. Naylor stepped down. The trial court noted its displeasure at this, but adjourned the court until Friday to allow plaintiff's counsel to present a product identification witness, William Seaman.
9
Seaman was the only witness who purported to identify Owens-Illinois's asbestos product, Kaylo, as being in Harbour's vicinity at the Torrance plant. Seaman testified that he had worked as a pipefitter and pipecutter at the Dow plant in Torrance from 1951 through 1954. He estimated that he had worked for up to a year at the plant during that time, moving in and out of the plant as various projects developed and were completed.
10
Seaman testified that he knew that Harbour was a company supervisor, and that he saw Harbour around his work station at the plant. Seaman did not see Harbour on a regular basis; he would see Harbour "sometimes every day, sometimes not for a week." Harbour's stays at Seaman's worksite also varied in duration, lasting from a few minutes to most of the morning or afternoon. Seaman testified that insulation work involving asbestos pipe insulation occurred within 50 feet of his work station, that the air was filled with dust from the asbestos work, and that Harbour was breathing when he came to Seaman's station.
11
Seaman's testimony showed that he did not know much about Harbour and his position. Seaman was unable to explain what Harbour's job was, aside from general supervision. Harbour was not Seaman's supervisor, and Seaman could not remember any conversation with Harbour beyond saying things like "hi, how are you doing, what is going on, talk to you later." Seaman testified that "walking in, looking, standing" was what supervisors did.
12
Plaintiff rested his case after Seaman testified. Owens-Illinois then moved for a directed verdict. The court granted the motion on Monday, January 26 because the testimony of plaintiff and Seaman had failed to establish that Harbour had a "well-documented occupational history" of exposure to asbestos, and therefore Dr. Naylor's testimony that Harbour's mesothelioma was caused by asbestos exposure lacked a sufficient foundation. Plaintiff's appeal followed.
II
13
We must review directed verdicts under the same standard as that used by the district court. Sawchik v. E.I. DuPont Denemours & Co., 783 F.2d 635, 636 (6th Cir.1986); Hersch v. United States, 719 F.2d 873 (6th Cir.1983). This is a diversity case, and a directed verdict motion offered in a diversity case pursuant to Fed.R.Civ.P. 50(a) must be examined under the appropriate state's standard. Rhea v. Massey-Ferguson, Inc., 767 F.2d 266 (6th Cir.1985). Michigan law, which without dispute governs this case, requires a court to examine the plaintiff's evidence and draw all reasonable inferences therefrom in the plaintiff's favor. Matras v. Amoco Oil Co., 424 Mich. 675, 385 N.W.2d 586 (1986). If reasonable minds could differ as to a fact necessary to the plaintiff's case, the motion must be denied. Pettis v. Nalco Chemical Corp., 150 Mich.App. 294, 388 N.W.2d 343, appeal denied, 486 Mich. 881 (1986); Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975). Evidence derived from the cross-examination of a witness for the plaintiff may be considered by the court in deciding the motion. Dengler v. State Farm Mutual Insurance Co., 135 Mich.App. 645, 354 N.W.2d 294 (1984), appeal denied.
14
Michigan law establishes that to prove negligence in a product liability action, a plaintiff must show that the product was at the worksite in question ("product identification"), and that the product was a "substantial factor" in causing the injury. Brisboy v. Fibreboard Corp., 429 Mich. 540, 418 N.W.2d 650 (1988). See Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984), cert denied E.R. Squibb & Sons, Inc. v. Abel, 469 U.S. 833 (1984); Caldwell, 231 N.W.2d at 54. It is not necessary to show that defendant's product--in this case and in Brisboy, asbestos--was the direct and sole cause of the injury when plaintiff establishes that asbestos dust caused the injury and that plaintiff was clearly subjected to repeated and heavy asbestos exposure. Brisboy, 418 N.W.2d at 653-54.
15
Owens-Illinois asks us to read Brisboy--which involved asbestosis rather than mesothelioma--as preventing a plaintiff alleging injury from mesothelioma from relying merely on plaintiff's extensive exposure to asbestos in order to prove medical causation. It asks us to do that because asbestosis is a cumulative disease; with each new exposure causing a new injury, while mesothelioma is irretrievably set in motion once a certain level of exposure is reached, and subsequent exposures have no effect on the progress or severity of the disease. Thus, defendant argues, permitting a plaintiff to show medical causation merely by showing extensive exposure to asbestos products would improperly make some innocent defendants liable for injuries that they did not cause, as plaintiff's mesothelioma may have been caused by a previous exposure to another company's asbestos products.
16
We decline to adopt this position because we agree with the district court that the evidence, even when viewed most favorably to the plaintiff, does not even meet the more lenient interpretation of Brisboy. No reasonable jury could find that Harbour was extensively exposed to asbestos products during his tenure at the Torrance Dow plant. Plaintiff must show this in order to recover, as his only evidence of medical causation, Dr. Naylor's testimony, explicitly rested on the assumption that Harbour had a history of occupational asbestos exposure. While plaintiff contends that his and Seaman's testimony can establish that history, we disagree.
17
Seaman's testimony can at most be read to establish that Harbour was occasionally present when asbestos dust was in the air. Seaman's contact with Harbour was fleeting. Seaman did not see Harbour regularly, "sometimes not for a week." Harbour did not spend much time near Seaman even on those rare occasions when Harbour was present. Seaman testified that Harbour's presence would vary from a few minutes to most of the morning or afternoon. This sporadic presence is evidenced by the extremely superficial level of their conversations. Simply exchanging daily pleasantries is a sign that Harbour was only an occasional visitor to Seaman's work area, a visitor whose presence was recalled by Seaman only because of his apparent authority with the company.
18
We do not believe that a reasonable person can conclude that Seaman's testimony proves that occupational asbestos exposure was a substantial factor in Harbour's death. Harbour's level of exposure is much less than that found in Brisboy, where "[t]he proofs established that [decedent] suffered repeated and heavy exposure to [asbestos products] for a period of six to nine months." Brisboy, 418 N.W.2d at 654. Brisboy adopted the "substantial factor" test contained in Restatement (Second) of Torts Sec. 431 (1977), and comment a to Sec. 431 clearly states that a factor must be more than a "philosophic" cause of the injury to be substantial. We read Brisboy as requiring a plaintiff relying on circumstantial evidence of exposure to prove causation to show a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural. In other words, substantial exposure is necessary to draw an inference from circumstantial evidence that the exposure was a substantial factor in causing the injury.
19
Plaintiff's counsel's argument before the court in opposition to the motion for a directed verdict demonstrates that he does not disagree with this formulation. He argued that the motion should be denied because the time that Harbour was exposed to asbestos greatly exceeded the time of exposure necessary to cause mesothelioma.
20
Dr. Naylor's testimony was that an exposure of as little as three months could be implicated as the cause of mesothelioma, and I submit that the evidence which I have presented through the testimony of Mr. Seaman was that there was an exposure for a period of approximately one year.... From the standpoint of medical causation, your Honor, Dr. Naylor's testimony that as little as five months exposure is sufficient to cause mesothelioma. And Dr. Naylor's testimony concerning the latency period, along with the evidence of exposure for approximately a one year period, certainly is enough evidence at this stage ... to defeat a motion for directed verdict.
21
We agree that this sort of comparison of actual time of exposure to that level of exposure necessary to cause the injury complained of is the correct approach. However, whether the minimum period of exposure necessary to cause mesothelioma was three or five months, we do not see how a reasonable jury could conclude from Mr. Seaman's testimony that Harbour was regularly exposed to asbestos for a sufficient period.
22
Plaintiff's testimony does not strengthen his case. Plaintiff merely testified that "it rained asbestos" at the plant during Harbour's tenure there. He said nothing about Harbour's duties, the frequency of his exposure to asbestos, or anything else that could show that Raymond Harbour regularly breathed asbestos dust for a period of many months. We therefore affirm the district court's grant of the directed verdict.
III
23
We also affirm the district court's order to bifurcate the trial into two phases, the first of which would concentrate solely on the issues of product identification and medical causation. It is clear that a district court may decide to bifurcate a trial to avoid prejudice or for reasons of judicial economy. Fed.R.Civ.P. 42(b). This decision is committed to the discretion of the district court, Yung v. Raymark Industries, Inc., 789 F.2d 397 (6th Cir.1986), and we review its decision under an abuse of discretion standard. Taylor v. United States Parole Commission, 734 F.2d 1152 (6th Cir.1984). We have previously approved the practice of bifurcating a trial to separate issues of causation from other issues in the trial. In Re Benedictin Litigation, 857 F.2d 290 (6th Cir.1988), cert. denied Hoffman v. Merrell Dow Pharmaceuticals, Inc., 488 U.S. 1006 (1989).
24
We believe the court did not abuse its discretion. The court granted the motion to save time, as plaintiff had no prima facie case if he could not prove product identification and medical causation. Plaintiff's argument on appeal is that the court abused its discretion because he was prejudiced by the bifurcation. Plaintiff specifically argues that he was forced to alter his order of proof because of the late bifurcation, thereby preventing him from fully presenting his case. We reject plaintiff's argument primarily because he did not present it to the district court at the time the bifurcation motion was made. Plaintiff merely argued that the bifurcation would not save time, and never even hinted at any problems the bifurcation caused for his order of proof and witness availability. A party may not allege a ground for reversing a court ruling that was not presented to the court at the time the objection was made. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708 (6th Cir.), cert. denied, 423 U.S. 987 (1975).
25
We also find that plaintiff has failed to prove that the bifurcation caused him any prejudice even if he had raised the issue before the district court. Plaintiff never states, either below or on appeal, that a particular witness was prevented from testifying because of the bifurcation. Plaintiff's counsel clearly stated to the contrary, that he had not even deposed his potential witnesses because he had thought the case might settle and he did not want to incur the expense. Under these circumstances, it cannot be said that the district court abused its discretion in granting the bifurcation motion.
IV
26
As a final matter, we affirm the district court's quashing of plaintiff's three last-minute notices of discovery. We review decisions of the district court regarding the scope of discovery under an abuse of discretion standard. Maxey v. Reynolds Metal Co., No. 85-5778 (6th Cir.1986), citing Humble v. Mountain State Construction Co., 441 F.2d 816 (6th Cir.1971). Fed.R.Civ.P. 26(d) clearly permits the court to set the timing of discovery "for the convenience of the parties and the witnesses and in the interests of justice." Although plaintiff contends that the court's action was an improper exclusion of evidence because the depositions were the most efficient way of producing the evidence after the bifurcation motion was granted, we find that the court properly exercised its discretion under Rule 26(d). Plaintiff knew he might need these witnesses since at least August 1989. He had ample time to depose them or arrange for their travel, and the court was under no obligation to save counsel from the consequences of his trial tactics.
V
27
For the foregoing reasons, the opinion of the district court is AFFIRMED in all respects.
1
All of the other defendants, including Armstrong World Industries, had been dismissed prior to trial
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 28 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KY LAY LUONG, No. 08-74503
Petitioner, Agency No. A022-102-119
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 1, 2010
Pasadena, California
Before: SCHROEDER, TALLMAN and M. SMITH, Circuit Judges.
Ky Lay Luong petitions for review of his removal order and the Board of
Immigration Appeals’ (BIA) denial of his applications for relief from removal. We
have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review.
The parties are familiar with the facts of the case so we do not repeat them
here. Luong cannot be removed on the basis of his 1986 conviction, the sole basis
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
alleged in his amended Notice to Appear. Ledezma-Galicia v. Holder, 599 F.3d
1055, 1075 (9th Cir. 2010) (holding that “8 U.S.C. § 1227(a)(2)(A)(iii) does not
apply to convictions . . . that occurred prior to November 18, 1988.”). In addition,
§ 1252(d) does not foreclose his claim. Garcia-Ramirez v. Gonzales, 423 F.3d
935, 938 (9th Cir. 2005) (per curiam) (“Retroactivity challenges to immigration
laws implicate legitimate due process considerations that need not be exhausted in
administrative proceedings because the BIA cannot give relief on such claims.”).
Because Luong is not removable as charged, we do not consider Luong’s
claim regarding his applications for relief. We leave to the government whether to
institute new removal proceedings based on Luong’s other convictions.
PETITION FOR REVIEW GRANTED.
2
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
BEVERLY SAMMONS, Petitioner/Appellant,
v.
DAVID C. KEAGGY, Respondent/Appellee.
No. 1 CA-CV 14-0475 FC
FILED 10-27-2015
Appeal from the Superior Court in Maricopa County
No. FN2012-002771
The Honorable Kathleen H. Mead, Judge
AFFIRMED IN PART, VACATED IN PART AND REMANDED
COUNSEL
Gillespie, Shields, Durrant & Goldfarb, Phoenix
By DeeAn Gillespie Strub and Mark A. Shields
Counsel for Petitioner/Appellant
Michael E. Hurley Attorney at Law, Phoenix
By Michael E. Hurley
Counsel for Respondent/Appellee
SAMMONS v. KEAGGY
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.
K E S S L E R, Judge:
¶1 Beverly Sammons (“Wife”) appeals from the family court’s
decree of dissolution ordering David C. Keaggy (“Husband”) to sell the
family business and awarding Wife one-half of the sale proceeds. Wife also
challenges the court’s denial of her request for attorneys’ fees. For the
following reasons, we vacate the portion of the decree permitting Husband
or the parties’ adult son (“Son”) to purchase the business at a discounted
price and remand for further proceedings consistent with this decision.
However, we affirm the denial of Wife’s fee request.
FACTUAL AND PROCEDURAL HISTORY
¶2 In June 2012, Wife filed a petition for dissolution of her forty-
year marriage to Husband. The parties disputed, among other things, the
value of the business they owned equally, David Keaggy & Associates, LLC
(the “Business”), which Husband operates and where Son has worked for
more than seven years. Wife also requested Husband pay her attorneys’
fees based on the disparity in the parties’ financial resources and Husband’s
unreasonable positions leading up to trial.
¶3 At trial, Wife presented the testimony of Mark Hughes, a
certified public accountant who specializes in business valuations, who
opined the Business had a fair value of $240,000. Hughes explained that
this reflects the Business’s value assuming Husband continues to operate it.
Hughes further testified that, if Husband—“the primary integral part of the
[B]usiness”—sells the Business to a third party and continues to assist the
buyer in operating it for a “transition” period of six to twelve months, the
Business would have a value of $190,000.
¶4 Husband testified that Hughes’ valuation is too high, but
offered no contrary valuation opinion. Husband further stated that he is
unwilling to sell the Business if he must work for another six to twelve
months because he wants to retire. Husband explained that he hopes Son
would run the Business, but Son testified he is not willing or able to
2
SAMMONS v. KEAGGY
Decision of the Court
purchase it because he “can’t afford it.”1 Alternatively, Husband testified
that he is willing to “dissolve” the Business or let Wife have it, but he does
not want to buy out Wife’s share because “I’m done.”
¶5 In the decree, the family court noted the Business was the
most valuable community asset and determined there were insufficient
community assets existed to award Wife an offset of the Business’s value.
The court therefore ordered the parties to immediately begin the process of
selling the Business with the profits to be divided equally. The court further
ordered that, if Husband or Son decides to buy the Business, either may do
so for a “discounted rate” of $150,000. The court reasoned this price is
appropriate as it “will avoid the costs of sale and the issues involving
transition to a new owner.” The court certified the decree to be final and
appealable in accordance with Arizona Rule of Family Law Procedure
78(B). Wife unsuccessfully moved for a new trial.
¶6 The court also granted Wife’s request for attorneys’ fees,
finding Husband’s financial position to be superior to Wife’s and finding
both parties increased the other’s litigation costs. The court, however, did
not award an amount of fees; instead, it ordered Husband to pay a portion
of Wife’s attorneys’ fees subject to Wife submitting a supporting affidavit,
in proper form, and other documentation. Wife complied, and Husband
objected on the basis Wife used more than $53,000 in community funds to
pay her attorneys along with $9,000 in sole and separate funds. The court
agreed with Husband and denied Wife’s fee request in an unsigned minute
entry. Wife appealed from the decree. After hearing oral argument, this
Court remanded the matter to allow the family court to enter a signed order
corresponding to the denial of Wife’s fee request. The family court issued
a signed order containing Arizona Rule of Family Law Procedure 78(B)
language, and Wife filed an amended notice of appeal. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
2101(A)(1) (Supp. 2015).2
1 At his deposition, Son testified he is willing to pay Wife a total of
$50,000 in monthly installments for her half of the Business, and that
Husband would “gift” him the other half. Son admitted this $100,000
valuation “was a wild guess” and not based on any valuation method.
2 We cite the current version of applicable statutes because no
revisions material to this decision have since occurred.
3
SAMMONS v. KEAGGY
Decision of the Court
DISCUSSION
¶7 Wife argues the family court erred in ordering the Business
sold and, particularly, in permitting Husband or Son to purchase it for
$150,000. Instead, Wife contends the court should have awarded the
Business to Husband and imposed a lien on it pursuant to A.R.S. § 25-318(E)
(Supp. 2015)3 to secure payment from Husband to Wife in the amount of
$120,000 to reflect her share in the Business based on its value of $240,000.
Wife also argues the court erred in denying her request for attorneys’ fees.
I. Wife’s Share in the Business
¶8 “The valuation of assets is a factual determination that must
be based on the facts and circumstances of each case.” Kelsey v. Kelsey, 186
Ariz. 49, 51, 918 P.2d 1067, 1069 (App. 1996). This Court reviews a valuation
determination for an abuse of discretion, see State v. Mitchell, 234 Ariz. 410,
413, ¶ 11, 323 P.3d 69, 72 (App. 2014) (“[W]e defer to the trial court’s factual
determinations . . . .”), including whether the record provides substantial
evidence supporting the determination, see Flying Diamond Airpark, L.L.C. v.
Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007) (citation
omitted). At oral argument, both parties agreed that the valuation is taken
from the time of the decree.
¶9 The court’s order permitting Husband or Son to purchase the
Business for $150,000 is not supported by the evidence. The only evidence
of the Business’s value is the expert opinion indicating a value of $240,000
if Husband continues to operate the Business and $190,000 in the event he
sells it to a third party and assists the new owner in running the Business
for six to twelve months. By permitting Husband to purchase the Business
for $150,000, the court effectively authorized a $75,000 equalization
payment to Wife should Husband continue to operate the Business, an
amount well below what Wife is entitled to according to the expert’s
opinion. Additionally, the court did not impose a deadline by which a sale
is to be effectuated or otherwise set out a timeframe for certain steps the
parties must take to do so. According to the record, it appears Husband
continues to operate the Business, but no payments have been made to
Wife. At oral argument, Husband conceded that he does not want to keep
3 In relevant part, the statute states: “The court may impress a lien on
. . . the marital property awarded to either party in order to secure the
payment of . . . [a]ny interest or equity the other party has in or to the
property.” A.R.S. § 25-318(E)(1).
4
SAMMONS v. KEAGGY
Decision of the Court
the business, and Son does not want to buy it. Further, there is no evidence
of record regarding the anticipated “costs of sale.”
¶10 With no evidence supporting a purchase price of $150,000, the
court abused its discretion in permitting Husband (or Son) to “purchase”
the Business for that amount. See Carriker v. Carriker, 151 Ariz. 296, 297, 727
P.2d 349, 350 (App. 1986) (determining valuation of professional
corporation, as community asset, was not supported by evidence where
there was no evidence from which court, using stated method of
calculation, could have arrived at stated valuation). Accordingly, we vacate
that portion of the decree allowing the Business to be sold to Husband or
Son for $150,000. On remand, because Husband conceded that he does not
want to keep the Business, and Son has expressed that he does not want to
buy it, the court shall issue additional orders to ensure compliance with its
directive to sell the Business, and secure payment to Wife of her community
share of the Business’s value, which, according to the record, is currently
$190,000.
II. Denial of Wife’s Request for Attorneys’ Fees
¶11 By statute, the family court has discretion to award a party
reasonable attorneys’ fees in a marriage dissolution case after considering
the parties’ respective financial resources and the reasonableness of the
positions each has taken during the proceedings. A.R.S. § 25-324(A) (Supp.
2015). Here, as noted, the court ordered Husband to pay a portion of Wife’s
fees based on its findings that Husband has substantially more financial
resources than Wife and because both parties unnecessarily increased the
other’s cost of litigation. The court also found both parties had used
community funds to pay their attorneys’ fees. However, when
subsequently presented with the actual amount of community funds Wife
had already expended for her attorneys’ fees (more than $53,000), the court
denied Wife’s fee request for an “additional” award of fees.
¶12 Section 25-324(A) does not authorize a court to deny a fee
request based solely on the use of community funds to pay fees. Indeed,
the statute only restricts a fee award to a reasonable amount. A.R.S. § 25-
324(A). We construe the court’s determination that Wife is not entitled to
an “additional” award of fees as an implied finding that Husband’s
community share of the $53,000 ($26,500) used by Wife to pay her attorneys
was a reasonable amount. See Lee Dev. Co. v. Papp, 166 Ariz. 471, 476, 803
P.2d 464, 469 (App. 1990) (stating this court will imply any additional
finding necessary to sustain a judgment if it is reasonably supported by the
evidence).
5
SAMMONS v. KEAGGY
Decision of the Court
¶13 Wife does not specifically argue that the court erred in
implicitly finding Husband’s approximately $26,500 payment of Wife’s
attorneys’ fees was a reasonable sum. Instead, she argues that the parties’
“extreme disparity” in financial resources required the court “to award at
least some fees to Wife.” But the court did award “some fees” to Wife,
namely, Husband’s community share of the $53,000 that she had already
utilized. Further, “a disparity alone does not mandate an award of fees.
‘[T]he reasonableness of the positions each party has taken’ is an additional
consideration under the current statute.” Myrick v. Maloney, 235 Ariz. 491,
494, ¶ 9, 333 P.3d 818, 821 (App. 2014) (alteration in original) (quoting A.R.S.
§ 25-324(A)). Wife concedes that the court found she “needlessly increased
Husband’s [attorneys’] fees due to a dispute . . . over the location of
[Husband’s] Veteran’s Administration funds.” Wife does not contest this
finding. Accordingly, the denial of Wife’s request for an additional fee
award is supported by the record and was not an abuse of discretion.
CONCLUSION
¶14 We vacate the portion of the decree that allows Husband or
Son to purchase the Business for $150,000 and remand for further
proceedings consistent with this decision. We affirm the order denying
Wife’s request for additional attorneys’ fees.
¶15 Wife requests her attorneys’ fees and taxable costs incurred
on appeal pursuant to A.R.S. § 25-324. Husband requests his fees and
taxable costs on appeal pursuant to Arizona Rule of Civil Appellate
Procedure 21 and A.R.S. §§ 12-341 (2003), -342 (2003), and -349 (Supp. 2015).
In the exercise of our discretion, we deny Husband’s request. We grant
Wife’s request for taxable costs and, in exercising our discretion, grant
Wife’s request for reasonable fees on appeal, contingent upon her timely
compliance with ARCAP 21.
:ama
6
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Filed
Washington State
Court of Appeals
Division Two
May 8, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50129-5-II
Respondent,
v.
MICHAEL WILLIAMS, II, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Michael Williams, II appeals the standard range sentence imposed
following his guilty plea to human trafficking in the second degree. Williams contends the State
breached the parties’ plea agreement and the sentencing court violated the real facts doctrine. We
affirm.
FACTS
I. PLEA AGREEMENT
The State originally charged Williams with two counts of human trafficking in the first
degree, one count of kidnapping in the first degree, two counts of promoting commercial sexual
abuse of a minor, and one count of promoting prostitution in the second degree. The offenses
involved multiple minor victims. Williams was almost 23 years old when the offenses occurred.
Following plea negotiations, Williams agreed to plead guilty to one count of human trafficking in
the second degree with the aggravating factor that “any victim was a minor at the time of the
offense.” Clerk’s Papers (CP) at 234.
50129-5-II
In the plea agreement, Williams stated that he “provided transport and hotel
accommodations on 12/8/14 knowing the transport and hotel would be used for commercial sex
transactions. I acted with reckless disregard as to the ages of the participants in the commercial
sex activity, two of whom were under the age of 18. I also expected to benefit financially from
the prostitution as a participant in the venture.” CP at 244.
The State agreed to recommend a standard range sentence to the sentencing court and
agreed that “defense may argue for exceptional sentence downward.” CP at 239. Williams’s
standard range sentence was 129 to 171 months.
Williams then submitted a brief requesting an exceptional sentence below the standard
range, arguing his sentence would be longer than sentences imposed on others engaging in similar
activity, the victims were willing participants, and Williams’s youth.
II. SENTENCING HEARING
At the sentencing hearing, the prosecutor stated that it was “beyond appalling” that
Williams alleged the victims were the aggressors, 3 Report of Proceedings (RP) at 74, and urged
the sentencing court not to “fall into the ridiculous argument defense is trying to make that these
two girls are the initiators, aggressors.” 3 RP at 96. The prosecutor also stated it was
“preposterous” that a “22-, maybe 23-year-old man, who is married, who has a child, is the victim
of [the minor girls].” 3 RP at 98.
Seattle Police Department Detective Maurice Washington testified under oath in response
to Williams’s argument that the victims were willing participants. The prosecutor explained the
need for Washington’s testimony stating, “The State has to stick to what is called the real-facts
doctrine. I’m aware of that. The defense has put in, however . . . a 19-page brief with . . . factual
allegations, about these two girls.” 3 RP at 74.
2
50129-5-II
Washington provided a general description of human trafficking and his understanding of
victims in general, how and why they end up in this type of situation, and the use of control and
manipulation to keep them from getting out. Williams did not object to Washington’s testimony.
The prosecutor requested a sentence of 171 months, the high end of the standard range.
The prosecutor argued:
I do want to emphasize that I think [one of the victims] is afraid. Why wouldn’t she
be, you know, of [Williams] right here, of who [he] represent[s], of [his] attitude
here today, of not taking responsibility, of not being contrite and remorseful about
what [he] did. Her fears, I’m confident, come from a long, long time ago when she
was very, very young, and the court and defense understand what I’m talking about,
and they continue. Why wouldn’t they continue? The court knows what’s
happened throughout the pendency of this case, but she is here. That says a lot, too,
I think. I want the court to acknowledge -- I know that the court has—her presence
here today. She does support the State’s recommendation, which is going to be
high end.
3 RP at 96. The prosecutor then stated that prostitution “is a culture” and discussed some of the
acts that “guys are requesting” from “the girls” and that “these strange men” pay the girls “to do
these things to them.” 3 RP at 97. The prosecutor continued:
I want to emphasize to [the victims] . . . . Sorry. I have known them both for now
two to three years. This is going to take me a second, but it is going to be quick
when I finally get around to saying it. They are not broken. Nothing is wrong with
them. They are both beautiful. They are both smart.
3 RP at 98. Williams did not object to the prosecutor’s statements.
Williams then argued for an exceptional sentence below the standard range. He
emphasized his age and immaturity, that the sentences of defendants in other cases who were
convicted of the same offense were lower, and that the victims were willing participants. The
prosecutor responded stating, “I’m objecting to this.” 3 RP at 121. “These girls . . . they are not
out there getting anything, Judge, other than . . . raped every day. They are underage . . . . [Williams
3
50129-5-II
was] the accomplice to the rape . . . an accomplice to Rape Child III.” 3 RP at 131-32. Williams
did not object.
The prosecutor also argued:
The initial charge was based on the kidnapping theory, and there was a kidnapping
count.
In fact, the facts were pretty close. They don’t give you the e-mails that
[one of the victims] sent out talking about not being able to leave, needing
somebody to get her, and she can’t, they won’t let her. They don’t talk about the
fact that their phones were taken from them, so they are not communicating . . . .
They don’t talk about the Gucci belt that was used to beat them with. They don’t
talk about any of those things.
....
They don’t show you the text messages where [one of the victims] says, I’m going
to kill myself.
....
[T]hey took them to the mall to cash out, which means they allowed them to buy
something with the money that they made having sex with these men. How nice of
them to allow them to have a little bit. They will hold the money and pay for it, but
they allowed them to go to the mall one day and actually buy something for
themselves, and I’m sure that it was lingerie.
3 RP at 129-30. Williams did not object.
The prosecutor also stated that it would be inconsistent for the minors to be willing
participants when the victim’s age is “a statutory aggravator factor” to human trafficking in the
second degree. 3 RP at 135.
Williams addressed the court in support of his request for an exceptional sentence below
the standard range stating, “I treated them like they were adults because that’s what I thought that
they were.” 3 RP at 148. He continued:
I should have cared, but, honestly, I didn’t. I didn’t care . . . . Who am I to judge
if a girl wants to do that? I know girls that do that.
....
Yes, I participated. I knew what was going, yes . . . but I can’t beat the
fact that they are under 18. Everybody knows it. This is just a little bit of people
in the room. Imagine if there was a trial. Twelve people, bing, bing, bing.
Raped, sodomized. I’m going to lose, period, and I’m not stupid.
4
50129-5-II
3 RP at 148, 150.
The sentencing court imposed a standard range sentence of 150 months. Williams appeals.
ANALYSIS
I. BREACH OF PLEA AGREEMENT
Williams argues that the State breached the parties’ plea agreement by implicitly
advocating for an exceptional sentence above the standard range and arguing against Williams’s
request for an exceptional sentence below the standard range. We disagree.
Whether a breach of a plea agreement has occurred is a question of law we review de novo.
State v. Neisler, 191 Wn. App. 259, 265, 361 P.3d 278 (2015), review denied, 185 Wn.2d 1026
(2016). A defendant may raise the issue of a prosecutor’s breach of a plea agreement for the first
time on appeal. State v. Xaviar, 117 Wn. App. 196, 199, 69 P.3d 901 (2003). Because a defendant
gives up important constitutional rights by agreeing to a plea bargain, due process considerations
come into play. State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). “Due process requires
a prosecutor to adhere to the terms of the agreement.” Sledge, 133 Wn.2d at 839. In determining
whether a prosecutor has breached a plea agreement’s terms, we review the sentencing record as
a whole using an objective standard. State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d
343 (2006). “When the prosecutor breaches a plea agreement, the appropriate remedy is to remand
for the defendant to choose whether to withdraw the guilty plea or specifically enforce the State’s
agreement.” State v. Jerde, 93 Wn. App. 774, 782-83, 970 P.2d 781 (1999).
Williams argues that the State breached the plea agreement by arguing for an exceptional
sentence above the standard range and undermining Williams’s argument for an exceptional
sentence below the standard range. The record, however, shows differently.
5
50129-5-II
First, Williams agreed to plead guilty to one count of human trafficking in the second
degree, with the aggravating factor that the victims were minors. While the parties discussed this
aggravator during the sentencing hearing, it was in response to Williams’s argument regarding
mitigating factors. Moreover, the prosecutor never argued for an exceptional sentence above the
standard range; instead he argued for a standard range sentence as agreed to in the plea agreement.
Second, per the plea agreement, Williams could argue for an exceptional sentence below
the standard range. Nowhere in the plea agreement did the prosecutor agree to support an
exceptional sentence. A prosecutor does not breach a plea agreement by participating in a
sentencing hearing. State v. Talley, 134 Wn.2d 176, 178, 949 P.2d 358 (1998). The prosecutor
was free to advocate for a standard range sentence, as agreed to in the plea agreement, and was not
required to join Williams’s request for an exceptional sentence. The prosecutor’s comments were
part of that advocacy.
Because the prosecutor adhered to the terms of the parties’ plea agreement, Williams fails
to show that a breach of the agreement occurred.
II. REAL FACTS DOCTRINE
Williams next argues that the sentencing court violated the real facts doctrine by
considering facts relevant to an uncharged crime, by considering facts outside what Williams
acknowledged, and by not conducting an evidentiary hearing. The State counters that Williams
cannot raise these arguments because he received a standard range sentence and he did not object
below. We agree with the State.
Generally, sentences within the standard sentence range are not appealable. RCW
9.94A.585(1); State v. Osman, 157 Wn.2d 474, 481, 139 P.3d 334 (2006). The sentencing court
has discretion to sentence a defendant within the sentence range, and so long as the sentence falls
6
50129-5-II
within the standard sentence range, there can be no abuse of discretion as to the sentence’s length.
RCW 9.94A.530(1); State v. Williams, 149 Wn.2d 143, 146-47, 65 P.3d 1214 (2003). A defendant
may appeal a standard range sentence only if the sentencing court failed to comply with the
procedural requirements of the Sentencing Reform Act of 1981, chapter 9.94A RCW, or
constitutional requirements. Osman, 157 Wn.2d at 481-82.
Williams argues that his standard range sentence is appealable because the sentencing court
committed a procedural error by violating the real facts doctrine. The real facts doctrine, RCW
9.94A.530(2), provides in part, “In determining any sentence other than a sentence above the
standard range, the trial court may rely on no more information than is admitted by the plea
agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven
pursuant to RCW 9.94A.537.” RCW 9.94A.530(2) further states, “Where the defendant disputes
material facts, the court must either not consider the fact or grant an evidentiary hearing on the
point.”
But to be entitled to raise a real facts doctrine issue on appeal, Williams must first show
that he raised a “timely and specific objection” to the sentencing court’s consideration of the
allegedly improper information. State v. Grayson, 154 Wn.2d 333, 338-39, 111 P.3d 1183 (2005).
Moreover, defendants who receive a standard range sentence must object to unproven assertions
of fact presented at sentencing to preserve error under the real facts doctrine. State v. Mail, 121
Wn.2d 707, 711-12, 854 P.2d 1042 (1993). Williams fails to make this showing.
Williams argues that the real facts doctrine was violated based on the prosecutor’s
arguments during the sentencing hearing, including the prosecutor’s statement that Williams was
an accomplice to rape, the prosecutor knew the victims for two to three years, there was a
prostitution culture where certain acts were requested, Williams was originally charged with
7
50129-5-II
kidnapping, the victims were treated poorly, and Williams’s attitude of not taking responsibility.
Williams did not raise a single objection during the sentencing hearing.
Williams appears to argue that his request for an exceptional sentence below the standard
range amounts to an umbrella objection to anything argued to the contrary. But this argument is
incorrect. There must be a “timely and specific objection” to the sentencing court’s consideration
of the allegedly improper information as required in Grayson, 154 Wn.2d at 338-39. Moreover,
defendants who receive a standard range sentence must object to unproven assertions of fact
presented at sentencing to preserve error under the real facts doctrine. Mail, 121 Wn.2d at 711-
12. Given Williams’s failure to raise a specific and timely objection, we decline to address the
challenge to his standard range sentence further.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Maxa, C.J.
Lee, J.
8
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN ARMANDO CHAPARRO, No. 16-15693
Plaintiff-Appellant, D.C. No. 5:14-cv-04955-LHK
v.
MEMORANDUM*
CLARK E. DUCART, Warden, in his
Official and Individual Capacity; E.
CONTRERAS, Correctional Officer, in his
Official and Individual Capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Adrian Armando Chaparro, a California state prisoner, appeals pro se from
the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants violated his right to the free exercise of religion. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo both summary judgment and an
officer’s entitlement to qualified immunity. Hughes v. Kisela, 841 F.3d 1081,
1084 (9th Cir. 2016). We may affirm on any ground supported by the record.
Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir. 2004).
We affirm.
The district court properly granted summary judgment on Chaparro’s claim
for damages against all defendants in their official capacity on the basis of
Eleventh Amendment immunity. See Mitchell v. Washington, 818 F.3d 436, 442
(9th Cir. 2016) (“The Eleventh Amendment bars claims for damages against a state
official acting in his or her official capacity.”).
The district court properly granted summary judgment for defendant Ducart
because Chaparro failed to raise a genuine dispute of material fact as to whether
Ducart personally participated in any constitutional deprivation. See Starr v. Baca,
652 F.3d 1202, 1207 (9th Cir. 2011) (a supervisor is liable under § 1983 only if he
or she is personally involved in the constitutional deprivation or there is a
“sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment for defendant
Contreras on the basis of qualified immunity because it would not have been clear
to every reasonable official that it was unlawful to follow the Inmate Attendance
2 16-15693
Policy and remove Chaparro from the chapel ducat list after he failed to attend a
chapel service. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (discussing
qualified immunity and noting that a right is clearly established only if “every
reasonable official would have understood that what he is doing violates that
right.” (citation and internal quotation marks omitted)); see also Canell v. Lightner,
143 F.3d 1210, 1215 (9th Cir. 1998) (relatively short-term and sporadic
interference with prayer activities does not violate free exercise clause).
We reject as meritless Chaparro’s contention that the district court
erroneously failed to take into consideration his claim under the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”). Even if Chaparro’s complaint
was construed as raising a RLUIPA claim, his RLUIPA claim fails because
Chaparro only seeks monetary damages, which are not available under RLUIPA.
See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (RLUIPA does not
authorize money damages against state officials sued in their official or individual
capacities).
AFFIRMED.
3 16-15693
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544 S.W.2d 565 (1976)
STATE of Missouri, Respondent,
v.
Raymond L. TOLIVER, Appellant.
No. 59464.
Supreme Court of Missouri, En Banc.
December 30, 1976.
*567 C. B. Fitzgerald, Warrensburg, for appellant.
John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., for respondent.
HENLEY, Judge.
Defendant, Raymond L. Toliver, convicted of stealing over $50, was sentenced under the Second Offender Act to ten years imprisonment. On appeal, the Missouri Court of Appeals, Kansas City District, reversed and remanded. The case was transferred to this court pursuant to our order and is decided as on original appeal. We affirm.
The sufficiency of the evidence is not disputed, and from the record, the jury reasonably could have concluded as follows: shortly before 1:30 p. m. on September 13, 1973, defendant and Richard Stevenson entered a Wal-Mart store in Warrensburg, Missouri. Defendant was wearing "baggy" overalls. Both men went to the sporting goods department. Defendant enticed the only clerk of that department away from her post near the gun display case to discuss outdoor heaters, allowing Stevenson to crawl "on all fours" and remove from the case 10 handguns valued at more than $800, which he placed in an oil pan. Defendant and Stevenson met later at a vacant checkout counter near the exit, where some 30 seconds of "arm movement" between the two men indicated the contents of the oil pan were being transferred to defendant's loosely-fitting clothing.
The two men left the store together and drove away in an automobile, which was later stopped by a state trooper who was reacting to a police radio bulletin concerning the alleged theft. Defendant had been driving about 80 m. p. h. with Stevenson and a man named Garner as passengers. After placing defendant under arrest for speeding and investigation of stealing over $50, the trooper gave defendant his "Miranda warnings," although defendant assured the trooper it was unnecessary to do so, because he had done nothing wrong. A search of the car and its occupants produced no handguns. The group was taken to patrol headquarters in Lee's Summit to be held for Warrensburg police, who were investigating the theft. At headquarters, Miranda warnings were read again and defendant was questioned about the theft. He denied the theft, saying he entered Wal-Mart to look for camping materials and had left when he could not find what he desired. When later taken to Warrensburg police headquarters, two more questioning episodes ensued preceded by Miranda warnings each time, but defendant made no statement. The three men were detained in the *568 Johnson county jail over night, and the next day, September 14, 1973, they were charged with stealing over $50 and released on bond.
The first point we consider is defendant's contention that the court erred in overruling his pretrial motion to suppress inculpatory statements made by him to officers of the Kansas City police department on November 22, 1973, because, he says, they did not inform him of his rights under the Fifth and Sixth Amendments of the United States Constitution as delineated in Miranda v. Arizona, 386 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
It is admitted by the State that the Miranda warnings were not given to defendant by the Kansas City police on the occasion of his statements to them that he and others were involved in the stealing of handguns from the Wal-Mart store in Warrensburg. The statements were made in the course of a general investigation of a Kansas City homicide which had been committed with a handgun having the same serial number as one of those stolen from the Wal-Mart store. Defendant, a resident of Kansas City and well known to its police, was not suspected of being involved in the homicide, although it was known that he had been charged in Johnson county with this stealing. Their inquiry of defendant was for the purpose of finding and identifying the killer by tracing this gun from defendant to the killer. Defendant told them that the guns had been taken to Kansas City where they were sold to a black man at a certain address for some dope. The purpose of the inquiry was not to secure evidence in support of the stealing charge. At the close of the motion to suppress hearing, the court remarked that "defendant had received the warning four times" from highway patrolmen and Warrensburg police only two months before, and, indicating that it was persuaded that defendant knew his "rights" when he made the statements, overruled the motion.
The testimony of the police officer at the trial before the jury was essentially the same as that heard by the court on the motion to suppress. Defendant made no objection to this testimony and participated in its presentation to the jury by his cross-examination. Defendant thus failed to keep alive and preserve for appellate review the question raised by his motion to suppress. State v. Yowell, 513 S.W.2d 397, 402-3[1, 2] (Mo.banc 1974) and cases collected therein. Our review of the briefs of the parties, the transcript of the evidence heard on the motion to suppress and the evidence at the trial on the merits, leads us to the conclusion that manifest injustice or a miscarriage of justice has not resulted from the receipt of testimony relating defendant's inculpatory statements made to the Kansas City police.
Another point raised by defendant is that the trial court erred in refusing to allow defendant's counsel to comment adversely upon the State's failure to produce a material witness endorsed on the information, namely, defendant's accomplice, Stevenson. The State apparently pursued diligently all reasonable means to secure Stevenson's presence but failed. He was no more "available" to the State than to defendant. State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 648-649 (1942). In this situation, no unfavorable inference may be drawn from the State's failure to produce Stevenson. The trial court did not err. State v. Houston, 451 S.W.2d 37, 39-40 (Mo. 1970).
Defendant also contends that the court erred in overruling his pretrial motion which sought to limit the State's cross-examination of him concerning his previous convictions in the event he should decide to take the stand. Defendant asserts that the court's ruling deprived him of the right to make an intelligent decision before trial as to whether he should take the stand and subject himself and his testimony to an attack upon his credibility. Clearly, the State is entitled to inquire about prior convictions of a witness to affect his credibility. Section 491.050, RSMo 1969; State v. Busby, 486 S.W.2d 501, 503[1] (Mo.1972). The scope of such prior conviction inquiry is subject to the discretion of the trial judge *569 to act, upon timely objection, to prevent probing of convictions for any purpose other than to affect the witness's credibility. State v. Scott, 459 S.W.2d 321, 324[2] (Mo. 1970). Defendant's point is without merit.
Defendant further claims the trial court erred in overruling his motion to declare this court's Rule 25.34 unconstitutional and in refusing to excuse him from compliance with the State's request for disclosure of certain matters within the purview of the rule. The only information disclosed by defendant to the State as a result of this ruling was (1) the names and addresses of two witnesses (the sheriff and a deputy sheriff of Johnson county) he intended to call in his own behalf, and (2) that he did not intend to rely upon an alibi or a plea of not guilty by reason of mental disease or defect. Defendant has failed to show that he was prejudiced by operation of this rule; therefore, he lacks standing to challenge its constitutionality. State v. Brown, 502 S.W.2d 295, 305-306[20, 21] (Mo.1973); State v. Mucie, 448 S.W.2d 879, 886[1] (Mo. 1970). The court did not err in requiring defendant to disclose this information to the State.
Defendant's last point is that the court erred in ordering the 10 year sentence imposed by it be consecutive to a sentence he was then serving in the Kansas penitentiary, because, he contends, the court erroneously believed that under § 546.480, RSMo 1969, it had no discretion to impose a sentence that would run concurrently with the Kansas sentence. He argues that because of this error the judgment must be reversed and the case remanded so the trial court may exercise its discretion and resentence him.
He relies upon State v. Baker, 524 S.W.2d 122, 131[7] (Mo.banc 1975), which held that § 546.480 violated the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. In that case there was a remand to the trial court for resentencing and the exercise of discretion by the trial judge as to whether the sentences imposed should be concurrent or cumulative.
The trial court's reliance upon § 546.480 as authority or reason for its order that this sentence begin upon completion of the Kansas sentence was misplaced and, therefore, error. That section, during its life, applied only to sentences imposed by Missouri courts for convictions of two or more offenses against the laws of this state; it did not apply to sentences, one of which was imposed by a court of another state for an offense against its laws and another by a court of this state for an offense against Missouri laws.
Notwithstanding the fact that the reason stated for the court's order is erroneous, the error is harmless and may be disregarded, because the Missouri sentence could not begin to run until defendant is released from the Kansas penitentiary and delivered to the custody of the Missouri department of corrections. Section 546.610; Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784, 787 (banc 1945); Higlin v. Kaiser, 352 Mo. 796, 179 S.W.2d 471, 472[1-3] (banc 1944). There is no statutory authority for a court of this state to order that a sentence imposed by it run concurrently with a sentence being served in another state. State v. Brager, 497 S.W.2d 181, 182-3[3] (Mo. 1973); Richmond v. State, 484 S.W.2d 280, 282[3] (Mo.1972); Harkins v. Lauf, 532 S.W.2d 459, 461-463[1, 2] (Mo.banc 1976). Sentences to the penal institutions of different jurisdictions are, in the very nature of things, cumulative and not concurrent. Jackson v. Kaiser, supra, 185 S.W.2d at 786-787[1-7]; Harkins v. Lauf, supra, at 463[2]. The error assigned by defendant did not prejudicially affect him and, under the facts and the law, a remand for resentencing would be futile and is not required.
The judgment is affirmed.
MORGAN, HOLMAN, FINCH and DONNELLY, JJ., concur.
SEILER, C. J., dissents in separate dissenting opinion filed.
BARDGETT, J., dissents in separate dissenting opinion filed.
*570 SEILER, Chief Justice (dissenting).
I respectfully dissent for the following reasons. First, appellant's self-incriminatory statements to the Kansas City police should not have been admitted into evidence because he was neither apprised of his rights to remain silent and to be represented by counsel, nor did he voluntarily waive these rights. Second, under the facts of this case we should not require objection before trial, at trial, and after trial in order to deem appellant's objection to the admission of this testimony properly preserved. Last, I would hold that even if we find appellant's objection not preserved, the trial court committed plain error in admitting the self-incriminatory statements.
In evaluating the need for the Kansas City police to have given appellant his Miranda warning, it seems to me the majority opinion is somewhat equivocal. On one hand, the opinion implies that because warnings were given by different police agencies some two months prior to the incident in question, appellant had sufficient knowledge of his rights at the time of questioning. On the other hand, the majority intimates earlier in the same paragraph that because the appellant was not under suspicion for the crime the Kansas City police were investigating, he was not in custody to an extent which would require giving a Miranda warning.
The idea that residual knowledge from a warning delivered to a suspect by the police at the time of an arrest several months earlier is sufficient was expressly disavowed by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 471-72, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966) wherein it was stated:
"[W]e hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . .. As with warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right."
Furthermore, I am unable to agree with the majority opinion's view that appellant was not in custody to a degree which required a Miranda warning. It seems to me that clearly he was. The Supreme Court explained its holding in Miranda as follows:
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."
Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612.
In the case before us, two officers, who knew that the appellant was charged with the theft of a gun which they had in their possession as the murder weapon in a homicide they were investigating, drove to appellant's residence in an unmarked state highway patrol car. According to their own testimony, upon arriving at appellant's residence, they got out of the car, went up to the house, pounded repeatedly on the door, "I really whammed it", and yelled for appellant to come out. The officers then placed appellant in the front seat of the car with one of the officers and a companion of appellant in the back seat with another officer. The two were driven downtown to police headquarters, separated from one another, and the appellant was questioned for one hour with three officers present. The foregoing hardly represents the general on-the-scene impromptu questioning the Supreme Court meant to leave unaffected by Miranda. It is true one of the detectives also testified that appellant simply accepted an "invitation" to go downtown to police headquarters and that he was free to go at *571 any time, although no one informed him of that fact, but this uncommunicated, self-serving, subjective belief on the part of the police does nothing, in my opinion, to lessen the custodial aspects of defendant's questioning. Appellant was deprived of his freedom in a significant way as contemplated by Miranda, and consequently, he has a right to Miranda warnings. Moreover, we have recognized the coercive atmosphere surrounding such police "requests". In State v. Young, 425 S.W.2d 177, n. 4, (Mo. 1968) we quoted with approval State v. Owens, 302 Mo. 348, 259 S.W. 100, 102 (banc 1924) to the effect that:
". . . [i]f an officer appears at a person's home, and in his official character demands the privilege of searching the premises, the owner of the premises who yields peaceably and silently to the official demand is as much under constraint as if he had forcibly resisted official interference."
The same holds true for the police request here to go downtown. It was permeated with the coercive atmosphere presented by the apparent force of law. That required a Miranda warning be given.
The majority cites State v. Yowell, 513 S.W.2d 397 (Mo.banc 1974) for the proposition that the appellant, by neglecting to raise an objection at trial to the admission of his self-incriminatory statements to the Kansas City police, has failed to preserve this question for appellate review. Yowell explains, however, the reason for requiring an objection to the admissibility of evidence prior to trial in a motion to suppress, at trial, and after trial. One of the more important reasons, as explained by Yowell at 402-03, is to prevent judicial confusion and to preserve an orderly system of justice.
"The judge presiding over the trial would not necessarily know what transpired at the hearing on the motion to suppress nor would he know with any degree of particularity what items of evidence were the subject of the motion. The hearing of pretrial motions by a judge who does not preside at the trial itself occurs frequently in multiple-judge circuits and also occurs when a motion for change of judge is filed and granted in other circuits after the motion to suppress has been heard and decided."
In the case before us, this reason for the rule does not exist. The parties in the case had just finished arguing the motion to suppress for two hours in front of the judge who presided at the trial which began immediately following argument on the motion. Furthermore, objection to admission of the statement was made again immediately after the state rested its case and again in the motion for new trial. Additionally, there is nothing to indicate that had the objection been made at trial immediately prior to the statement, the trial judge would have changed his mind from his ruling a few hours earlier and sustained the objection. Nor is there any indication that defendant has advanced any reasons for his objection other than those first presented to the court. The objection all along was that appellant had not been given the Miranda warning. In this case I would not require an objection at trial because to do so would be to require a needless act.
Last, even if objection at trial is required, I would review the admissibility of these self-incriminating statements as plain error affecting substantial rights which would result in manifest injustice or miscarriage of justice under Rule 27.20(c). See State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Beasley, 404 S.W.2d 689 (Mo.1966). As to whether this is plain error, I agree with what Turnage, P. J., who wrote the court of appeals opinion reversing and remanding this case said, as follows:
"As revealed from the statement of facts heretofore given, it is apparent the State's case rests on an entirely different footing without the admission of the defendant's statement given to Detective Watson. It can certainly be said that without this statement the State does not have nearly as strong a case. It is obvious the defendant would be in a much different position before the jury without the statement in evidence. The resultant *572 material weakening of the State's case by excluding the statement is sufficient to demonstrate the admission of the statement affected defendant's substantial rights. This resulted in manifest injustice to defendant. Under Rule 27.20(c) this is plain error requiring a new trial."
BARDGETT, Judge (dissenting).
I respectfully dissent. The first entry in the record of the trial of the case states: "The trial began on Wednesday, December 4, 1974, before the Honorable Robert G. Russell, Judge of Division 2 of the Circuit Court of Johnson County, Missouri, at Warrensburg and a jury, which was impanelled, selected and sworn." Thereafter a hearing on several motions was held including defendant's motion to suppress the oral confession out of the hearing of the prospective jurors. The ground alleged in the motion to suppress is that the alleged oral statement was given without adequate warnings as required by Miranda v. Arizona, 386 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record reflects that a discussion took place between court and both counsel with respect to what particular evidence the state was going to introduce before the jury and what evidence the state did not intend to introduce. This was for the purpose of limiting the hearing to those matters which the state declared it would offer in evidence and that resulted in the prosecutor stating he intended to introduce the testimony of detective Maurice Watson of the Kansas City police department to prove up the oral confession of the defendant. The tenor of this hearing, as shown by the record, zeroed in on the admissibility into evidence of the oral confession during the immediate impending trial as perhaps distinguished from the tenor of hearings generally on motions to suppress where the question of whether the particular item will be offered in a later trial is not resolved. This distinction may seem tenuous but as I read this record the hearing on this motion was, for all pretrial purposes, a hearing that took place during the trial consequent to an objection by the defendant to the immediate introduction into evidence of the oral confession.
As stated in the principal opinion and the court of appeals opinion, the defendant was not advised of his rights"Miranda warnings" prior to being interrogated by the police and giving an oral inculpatory statement.
At the conclusion of the hearing the trial court overruled the motion to suppress the oral confession stating, "The Defendant had received the warning four times. Whether this was a custodial or noncustodial interrogation, I don't think there's any question but what he had previously been apprised of what his rights were. I don't think it's necessary that the Police very time they question him, they give him the warnings. The Court certainly feels that the further interrogation and investigation was not a custodial interrogation."
The reference to defendant having received the warning four times was to previous independent occasions and not to the instant interrogation.
After taking up some other matters pertaining to evidence that would be offered in trial and disposing of certain objections, the court immediately proceeded with the voir dire examination and the jury was selected. All of the evidence was received that same day with the last witness for the state being detective Watson who testified to the oral confession. The defense did not repeat its objection to the admission of the confession at that time, but the first entry in the record of the second day of trial reflects the following:
"MR. FITZGERALD: Your Honor, at this time, the Defendant moves the Court to strike the testimony of Witness Watson, as the same pertains to the statement of the Defendant given in November, 1973, and to instruct the Jury to disregard it on the grounds it is incompetent for all the reasons assigned in the motion to suppress hereinbefore filed with this Court.
"THE COURT: Well, the motion will be overruled on two bases. Number One, the Court feels that there is a proper foundation for the admission of the statement, as *573 the Court indicated at the suppression hearing, and that the
. . . . .
"THE COURT: First, that the interrogation was not a custodial interrogation. Secondly, that the Defendant had been adequately warned previously concerning his rights in the matter. And secondly (sic), that the objection is untimely. It comes after the testimony has been admitted."
In view of the fact that the motion to suppress was taken up and heard for all practical purposes during the trial and that the tenor of that hearing was that the court was then and there determining the admissibility of the confession in the trial and not just ruling on a pretrial matter, I am convinced that the attorneys and the court considered that the court's ruling on the motion to suppress constituted a ruling on the in-trial admissibility of the confession. This was the same as if the trial itself had been interrupted so as to afford a court hearing on the admissibility of the confession on objection by the defendant made at the time the witness Watson took the stand. In my opinion this view is buttressed by the court's response to the defendant's motion to strike the testimony of detective Watson as to the confession in that the court repeated the same reasons for overruling the motion to strike as it gave for its decision in overruling the motion to suppress. I am mindful of the fact that the court added to its previous reasons that the motion to strike was untimely as coming after the testimony was admitted. Nevertheless, on the facts of this case, I would hold that the objection to the oral confession had been preserved at trial and is reviewable on appeal.
The facts of State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974), and State v. Bryson, 506 S.W.2d 358 (Mo.1974), (authored by the undersigned), are distinguishable from the circumstances of the instant case as set forth in the dissent of Seiler, C. J., in this case. However, I do not agree with the observation made in the dissent of SEILER, C. J., that the principal opinion implies that because warnings were given by different police agencies on other occasions that these prior warnings satisfy the requirements of Miranda. As I read the principal opinion, it simply holds that the defendant did not preserve the error for appellate review and declines to review the issue under the plain error rule. As stated supra I would hold that the error was preserved for appellate review.
In my opinion, Miranda required that the defendant be advised of his rights prior to the police interrogation in the instant case and therefore the trial court erred in holding the oral confession admissible. I would reverse and remand this case for a new trial.
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25 A.3d 1023 (2011)
421 Md. 190
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner
v.
Glenn E. CULPEPPER, Respondent.
Misc. Docket AG No. 97, September Term, 2010.
Court of Appeals of Maryland.
August 3, 2011.
ORDER
This matter came before the Court on the Joint Petition of the Attorney Grievance *1024 Commission of Maryland and Respondent, Glenn E. Culpepper, Esquire, to disbar the Respondent from the practice of law.
The Court having considered this Petition, it is this 3rd day of August, 2011,
ORDERED, that Respondent, Glenn E. Culpepper, be and he is hereby disbarred from the practice of law in the State of Maryland.
ORDERED, that the Clerk of this Court shall remove the name of Glenn E. Culpepper from the register of attorneys in the Court and certify that fact to the Client Protection Fund of the Bar of Maryland and all Clerks of all judicial tribunals in this State in accordance with Maryland Rule 16-773(d).
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Slip Op. 09 - 1
UNITED STATES COURT OF INTERNATIONAL TRADE
:
HARLEY & MYRA DORSEY, d/b/a :
CONCORDE FARMS, :
:
Plaintiffs, :
:
v. : Before: MUSGRAVE, Senior Judge
: Court No. 06-00449
UNITED STATES SECRETARY OF :
AGRICULTURE :
:
Defendant. :
:
JUDGMENT
Upon remand of this matter pursuant to Dorsey v. U.S. Sec’y of Ag., Slip Op. 08-76 (July 11,
2008), familiarity with which (and prior proceedings) is here presumed, the administrative record
was reopened and supplemented with a financial statement for the plaintiffs for the periods ended
December 31, 2000, 2001, 2002, 2003, and 2004. The Dorseys’ accountants’ compilation report
thereof states that the financial statement was prepared on a cash basis in accordance with the
Statements on Standards for Accounting Review Services issued by the American Institute of
Certified Public Accountants and otherwise in accordance with Generally Accepted Accounting
Principles (GAAP). According to the accountants’ further clarification of the compilation report,
the financial statement
converts all the Dorseys’ depreciable items—namely all fixed assets that have
been taken as 179 deductions before 2005 and that would have materially
affected the financial statements for 2003 and 2004—to straight-line
depreciation over the life of the item, consistent with GAAP. This
conversion eliminates the net-income distorting effect of 179 deductions.
Court No. 06-00449 Page 2
More particularly: This conversion treats the Dorseys’ extraordinary
179 deduction for a wind machine in 2003—which distorted the Dorseys’
“net income” for that year—as an ordinary, straight-line deduction. . . .
As stated in the Report, we prepared the Statement using a cash basis
of accounting. The cash basis of accounting for the Report is the only
departure from GAAP. We are unable to prepare a report based on the
accrual method, but the differences in the net income line on the Statement
under an accrual method would be negligible . . ..”
Second Supp. AR (PDoc) at 6.
Whereupon the defendant considered such statement(s), and its Reconsideration Upon the
Third Remand of the Application of Concorde Farms states that the agency
determined that Concorde Farms’ net farm income declined from its pre-
adjustment year, 2003, to the applicable marketing year, 2004. As a result,
Concorde Farms is entitled to cash benefits under the TAA statute and
regulation.
Concorde Farms’ production of 387.4 tons of Concord grapes times
the payment rate of $18.10 per ton for Washington State yields $7,011.94.
AR, 1. Accordingly, payment under the TAA program in the amount of
$7,011.94 is due Concorde Farms.
Id. (PDoc) at 2, 13.
The parties having provided no comment since that document’s filing with the Court on
October 30, 2008, it is therefore
ORDERED, ADJUDGED AND DECREED that the results of Reconsideration Upon the
Third Remand of the Application of Concorde Farms be, and they hereby are, sustained.
/s/ R. Kenton Musgrave
R. KENTON MUSGRAVE, Senior Judge
Dated: January 5, 2009
New York, New York
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Order Michigan Supreme Court
Lansing, Michigan
January 28, 2013 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
146411 (3) Brian K. Zahra
Bridget M. McCormack,
Justices
DEWAYNE L. ENGLISH,
Plaintiff,
v SC: 146411
AGC: 2210-12
ATTORNEY GRIEVANCE COMMISSION,
Defendant.
___________________________________
On order of the Chief Justice, the motion to waive fees is considered and it
is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be
liable for filing fees.
Within 21 days of the certification of this order, plaintiff shall pay to the
Clerk of the Court the initial partial filing fee of $24.00, shall submit a copy of this order
with the payment, and shall refile the copy of the pleadings which is being returned
with this order. Failure to comply with this order shall result in the appeal not being
filed in this Court.
If plaintiff timely files the partial fee and refiles the pleadings, monthly
payments shall be made to the Department of Corrections in an amount of 50 percent of
the deposits made to plaintiff’s account until the payments equal the balance due of
$351.00. This amount shall then be remitted to this Court.
Pursuant to MCL 600.2963(8) plaintiff shall not file further appeals in this
Court until the entry fee in this case is paid in full.
The Clerk of the Court shall furnish two copies of this order to plaintiff and
return plaintiff’s pleadings with this order.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 28, 2013 _________________________________________
jam Clerk
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52 F.3d 327NOTICE: 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.
UNITED STATES of America, Plaintiff-Appellee,v.Harry J. TERRELL, Jr. Defendant-Appellant.
No. 94-3713.
United States Court of Appeals, Sixth Circuit.
April 11, 1995.
Before: NELSON and DAUGHTREY, Circuit Judges; and CHURCHILL, Senior District Judge.*
PER CURIAM.
1
The appellant, Harry James Terrell, Jr., was convicted by plea of possession of a firearm with three previous felony convictions in violation of 18 U.S.C. Sec. 922(g)(1).
On timely appeal, he asserts two claims:
2
(1) The district court erred by refusing to allow him to withdraw his plea of guilty, and
3
(2) His state court convictions may not be used as predicate offenses pursuant to 18 U.S.C. Sec. 921(a)(20) because his civil rights had been restored by operation of a certificate issued by the State of Ohio up on termination of his parole prior to the time he was found to be in possession of a firearm.
4
The essential facts and procedural history of the case are not in dispute.
5
Between October 28, 1974 and March 1, 1985, Terrell was convicted in Cuyahoga County, Ohio, of three robbery offenses, each of which was an offense punishable under Ohio law by imprisonment for a term exceeding one year.
6
On March 28, 1991, Terrell received a document entitled "Final Release and Restoration from the Ohio Adult Parole Authority" which contained the following language:
7
Under the Authority of the Section 2967.16, the Adult Parole Authority hereby RESTORES you to the rights and privileges forfeited by your conviction. This final release is not a waiver of collateral disabilities of conviction set forth in the Ohio Revised Code.1
8
On November 30, 1992, Terrell was arrested on a warrant for another offense and was found to be in possession of a firearm.
9
On June 16, 1993, Terrell was indicted for the firearm possession charge.
10
On August 17, 1993, Terrell pled guilty to the charge in the indictment.
11
On October 29, 1993, Terrell filed a pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. Sec. 2255.
12
On November 10, 1993, the district court ordered that the pro se motion be construed as a motion to withdraw his guilty plea as filed pursuant to Rule 32(d), Federal Rules of Criminal Procedure.
13
On December 15, 1993, substitute counsel was appointed. The new attorney briefed the motion as construed by the court.
14
On June 16, 1994, the court adopted a magistrate judge's recommendation and denied Terrell's motion to withdraw his plea.
15
On June 21, 1994, Terrell was sentenced pursuant 18 U.S.C. Sec. 924(e) to a custodial term of 180 months plus three years' supervised release.
16
More than two months elapsed between entry of the plea and the motion to withdraw the plea. Whether it was fair and just to deny the motion to withdraw the plea depends upon the merits of the issue defined by the appellant's second claim on appeal.
17
The appellant argues that the state robbery convictions are excluded as predicate offenses by operation of the civil rights restoration clause of 18 U.S.C. Sec. 921(a)(20). The appellant concedes, as indeed he must, that this court took a contrary position in United States v. Cassidy, 899 F.2d 543 (6th Cir.1990), and that, unless the court is relieved from following Cassidy, his conviction and sentence must be affirmed.
18
A published decision rendered by a three-judge panel of this court may only be reversed by the full court sitting en banc, except when the Supreme Court has issued a contrary ruling, or when a change has occurred in the substantive law. Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir.1985); Smith v. United States Postal Service, 766 F.2d 205, 207 (6th Cir.1985); United States v. Edge, 989 F.2d 871, 876 (6th Cir.1993).
19
There has been no change of relevant substantive federal or state law.
20
The appellant argues that the court is relieved from the obligation to treat Cassidy as controlling authority by the United States Supreme Court's decision in Beecham v. United States, 114 S.Ct. 466, 128 L.Ed.2d 383 (1994).
21
In Beecham the Supreme Court ruled that a state restoration of a convicted felon's civil rights does not remove the disability of firearm possession imposed by federal law as a result of a federal conviction. We do not find the ruling or language of Beecham to have any bearing on the Cassidy issue.
22
Accordingly, the appellant's conviction is affirmed.
*
Honorable James P. Churchill, Senior United States District Court for the Eastern District of Michigan, sitting by designation
1
We assume, as do the parties on appeal, that such restoration applies to all three convictions
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FILED
NOT FOR PUBLICATION JAN 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50339
Plaintiff - Appellee, D.C. No. 2:09-cr-00360-PA
v.
MEMORANDUM *
TRUC TRAN, a.k.a. Daniel, a.k.a. Truc
Trung Tran,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted January 17, 2012 **
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Truc Tran appeals from the 46-month sentence imposed following his jury-
trial conviction for conspiracy to distribute methylenedioxy-methamphetamine
(MDMA), in violation of 21 U.S.C. §§ 846, 841(a)(1), and possession with intent
*
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. Appellant. P. 34(a)(2).
to distribute MDMA, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Tran contends that the district court procedurally erred by failing to consider
whether a minor participant downward departure was warranted pursuant to
U.S.S.G. § 3B1.2(b). This contention is without merit, as Tran failed to request a
minor participant departure to the district court. See United States v. Quesada, 972
F.2d 281, 284 (9th Cir. 1992).
AFFIRMED.
2 10-50339
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949 F.2d 402
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Jorge M. SAVINOVICH, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 91-3228.
United States Court of Appeals, Federal Circuit.
Oct. 1, 1991.
Before NIES, Chief Judge, and MICHEL and LOURIE, Circuit Judges.
DECISION
PER CURIAM.
1
Jorge Savinovich appeals the initial decision of the administrative judge (AJ) (No. NY315H9010364, Sep. 25, 1990) denying review of his dismissal from the position of Naval police officer, due to lack of jurisdiction. This decision became final when the Merit Systems Protection Board (Board) denied review on Feb. 13, 1991, because the petition did not meet the requirements of 5 C.F.R. § 1201.115. We affirm.
DISCUSSION
2
We review a decision of the Board to determine if it is arbitrary, capricious, an abuse of discretion, procedurally defective or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988).
3
Savinovich filed a petition for review of his removal on June 4, 1990. The AJ twice ordered Savinovich to produce evidence showing that he was a permanent employee at the time of his dismissal, but Savinovich never responded to these requests. He now argues that he was a permanent employee at the time of his dismissal, since his temporary status was to last only until his files were received from his former employer, the U.S. Postal Service. Because Savinovich makes this argument for the first time on appeal, he can not raise it here. Meglio v. Merit Systems Protection Board, 758 F.2d 1576, 1577 (Fed.Cir.1984). Further, we find substantial evidence in the record to support the Board's conclusion that he was a temporary employee.
4
The AJ found Savinovich to have been serving under a temporary appointment for less than a year and therefore not to have been an "employee" within the meaning of 5 U.S.C. § 7511(a)(1)(A) (1988). Consequently, the AJ dismissed the case for lack of jurisdiction. Substantial evidence supports the AJ's finding. Temporary appointments are to be for less than one year. 5 C.F.R. § 316.401. The Notification of Personnel Action clearly indicates that Savinovich's appointment was not to extend past October 29, 1990, less than one year from its initial date. We therefore affirm the Board's decision.
5
Finally, we note Savinovich's argument that he was dismissed for "whistleblowing." In order to pursue a claim of this nature, Savinovich must follow the procedures prescribed in 5 C.F.R. § 1209. Specifically, he must first seek corrective action through the Special Counsel, 5 C.F.R. § 1209.6, an action he has not yet taken.
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508 F.2d 846
Merrillv.Ciccone
74-1631
UNITED STATES COURT OF APPEALS Eighth Circuit
12/12/74
1
W.D.Mo.
2
DISMISSED**
**
See Local Rule 9
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Illinois Official Reports
Appellate Court
People v. Betance-Lopez, 2015 IL App (2d) 130521
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RUBEN BETANCE-LOPEZ, Defendant-Appellant.
District & No. Second District
Docket No. 2-13-0521
Filed February 27, 2015
Rehearing denied April 10, 2015
Held The appellate court upheld defendant’s convictions for predatory
(Note: This syllabus criminal sexual assault and aggravated criminal sexual abuse,
constitutes no part of the notwithstanding defendant’s contention, inter alia, that the trial court
opinion of the court but improperly relied on a transcript of an audio recording as substantive
has been prepared by the evidence, since defendant did not challenge the accuracy of the
Reporter of Decisions English translation of defendant’s answer and the trial court did not err
for the convenience of in relying on the English translation as substantive evidence in view of
the reader.) the difficulty presented in requiring the trial court to rely on the
Spanish portions of the recording as substantive evidence.
Decision Under Appeal from the Circuit Court of Kane County, No. 11-CF-479; the
Review Hon. John A. Barsanti, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas A. Lilien and Yasemin Eken, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Scott Jacobson, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Jorgensen and Birkett concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Ruben Betance-Lopez, was convicted of two counts
of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)) and
one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2010)). On
appeal, defendant challenges one of his convictions of predatory criminal sexual assault of a
child, raising two contentions of error: (1) the trial court improperly relied on a transcript of
an audio-recording as substantive evidence, and (2) the State failed to prove his guilt beyond
a reasonable doubt. Because we conclude that the trial court properly relied on the transcript
as substantive evidence and that the State proved defendant’s guilt beyond a reasonable
doubt, we affirm.
¶2 I. BACKGROUND
¶3 On May 19, 2011, a grand jury returned a 16-count indictment, charging defendant with
committing offenses against M.M., his 6-year-old step-granddaughter, between September 1,
2010, and March 5, 2011. Relevant to this appeal, count I charged defendant with predatory
criminal sexual assault of a child in that he committed an act of sexual penetration by putting
“his penis in the sex organ of M.M.” Count VII charged defendant with predatory criminal
sexual assault of a child in that he committed an act of sexual penetration by putting “his
penis in the buttocks of M.M.” Count XIV charged him with aggravated criminal sexual
abuse in that he “placed his penis on the buttocks of M.M.” for the purpose of sexual
gratification or arousal.
¶4 A bench trial commenced on March 4, 2013. Karla Betance testified that she was M.M.’s
mother and defendant’s stepdaughter. On March 5, 2011, she and M.M. lived with defendant.
Around 2 p.m. that day, Betance arrived home with her friend, Maria Trejo, and called out to
M.M. to come downstairs to eat. M.M. did not respond, so Betance went upstairs to find her.
The door to defendant’s room was locked, but Betance was able to open it. Upon opening the
door, she saw defendant stand up from the bed. M.M. was in the bed, partially covered by a
blanket. It appeared to Betance that M.M. was pulling up her pants. Betance removed the
blanket and saw that M.M.’s pants and underwear were down.
¶5 Betance and Trejo immediately drove M.M. to an urgent care clinic. During the drive to
the clinic, Betance asked M.M. what had happened, but M.M. was crying and would not
answer. M.M. said that she would tell Betance what happened if Trejo exited the car. Betance
stopped the car, and Trejo got out. M.M. then told her mother that defendant “would put his
pito in her chochita.” According to Betance, “pito” meant “penis,” and “chochita” meant
“vagina.” Trejo then returned to the car, and they drove to the clinic. At the clinic, M.M.
related to the doctor the same information that she had related to Betance in the car.
¶6 M.M., who was eight years old at the time of trial, testified that defendant was her
“grandpa” and that she had lived with him at some point. When asked what happened with
defendant, M.M. testified, “He was doing something bad to me.” She testified that it
happened in defendant’s room, where M.M. would go to watch the Disney channel. She and
-2-
defendant were under the covers, and she was on her back, while defendant was on his side.
M.M. testified that his “private parts” touched her “on the back of [her] private parts.” The
State showed M.M. a drawing of an adult male and asked her to place an “X” on the part of
the body that had touched her. She marked an “X” on the male’s penis. The State then
showed her a drawing of a female child and asked her to place an “X” on the part of the body
that defendant had touched. She marked an “X” on the female child’s buttocks.
¶7 Dr. Vipuli Jayensinghe testified that she was a physician at Kendall Immediate Care,
where she examined M.M. on March 5, 2011. M.M. told Dr. Jayensinghe that her grandfather
would put “his pipito in her pee area,” that it hurt when he did it, and that it had happened
several times. Dr. Jayensinghe’s physical examination revealed three small red dots, as well
as redness in the left pubic area. The doctor concluded “mostly by the history” that M.M. had
been sexually abused. She called the police and sent M.M. to the emergency room for further
examination.
¶8 Dr. Sangita Rangala testified as an expert in the field of “sexual assault examination of
children.” On March 5, 2011, she examined M.M. at the pediatric emergency department of
Edwards Hospital and completed a sexual assault kit. As part of the sexual assault kit, she
collected M.M.’s clothing and swabbed the internal and external parts of the vagina and anus.
She circled on a diagram of the female anatomy the areas that she swabbed. The same swab
was used for the external and internal swab of the anus.
¶9 Dr. Rangala testified that she categorized her examination of M.M. as “intermediate,”
because there were “no acute findings of sexual assault trauma.” However, the doctor
explained that the absence of findings of acute trauma did “not at all” indicate the absence of
sexual abuse. She testified that 98% of her examinations were normal, because “[a] lot of
times, abuse do[es] not leave a mark” or it leaves only redness or irritation that disappears
within a few hours.
¶ 10 Christopher Webb testified that he was a forensic scientist with the Illinois State Police
and that he performed forensic testing of the evidence collected from M.M. as part of the
sexual assault kit. The vaginal swab, the anal swab, the external genitalia swab, and the
underwear all tested positive for semen. The semen stains on the underwear were in the
“inside front area” and “inside crotch area.” The semen found on the underwear produced a
male DNA profile from which defendant could not be excluded. The semen found on the
external genitalia swab produced a male DNA profile that matched defendant’s DNA profile.
The semen found on the anal swab did not produce a sufficient amount of male DNA to
develop a DNA profile.
¶ 11 Orlando Arroyo testified that he was a child protection investigator with the Illinois
Department of Children and Family Services. He was assigned to the Kane County
Children’s Advocacy Center, where he interviewed M.M. on March 7, 2011. His interview of
M.M. was recorded, and the video-recording was played at trial.1
1
Following a pretrial evidentiary hearing, the trial court ruled that the video-recording was
admissible pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10
(West 2010)). At the conclusion of the trial, however, the court indicated that it had a number of
concerns with how the interview was conducted, including that some of Arroyo’s questions were
“coercive.” The court indicated that it would disregard the interview in determining defendant’s guilt or
innocence. Therefore, we do not summarize the interview.
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¶ 12 Arroyo further testified that he participated in an audio-recorded interview of defendant
with police officer Timothy Bosshart at the Aurora police department on March 7, 2011.
During the interview, Officer Bosshart spoke English, defendant spoke Spanish, and Arroyo
served as the interpreter. Specifically, Officer Bosshart asked questions in English, Arroyo
repeated them in Spanish, defendant answered in Spanish, and Arroyo repeated the answers
in English. According to Arroyo, defendant admitted during the interview to rubbing his
penis on M.M.’s vagina and buttocks. When asked how defendant described touching his
penis on the buttocks, Arroyo testified that he “described just a circular motion around
the–on the buttocks not the anus.”
¶ 13 Before playing the audio-recording of the interview for the court, the State showed
Arroyo a written transcript of the recording, in which the English portion of the interview
was transcribed verbatim and the Spanish portion of the interview was translated into
English. Thus, each of defendant’s answers appeared twice in the transcript–one version was
the verbatim English transcription of Arroyo’s live interpretation/translation of defendant’s
answer, and the second version was the transcriber’s English translation of defendant’s
Spanish answer. Arroyo testified that he had reviewed the transcript and that it “fairly and
accurately translate[d] from whatever Spanish words were made to English.” He further
testified that the transcript fairly and accurately transcribed the interview.
¶ 14 The State moved to admit the written transcript into evidence, and defense counsel
objected on two bases. First, defense counsel argued that “we don’t know who transcribed
those audio statements” and “we don’t know whether [the] Spanish portion[s] [were]
translated correctly and accurately.” Second, defense counsel argued that the transcript was
unnecessary and improperly “highlight[ed]” defendant’s statements, when the recording
alone was sufficient.
¶ 15 The court overruled the objections, finding that Arroyo’s testimony that he reviewed the
transcript and that it fairly and accurately reflected both the English and Spanish portions of
the recording was sufficient to lay a foundation to admit the transcript. Further, the court
found that the transcript did not “highlight” the evidence, because the Spanish portions of the
recording “would have no meaning” to the court without the English-translation transcript.
¶ 16 At this point, defense counsel offered a third objection. Counsel argued that, because the
recording contained Arroyo’s live interpretations of defendant’s Spanish answers, the
English-translation transcript was unnecessary. The State responded that the transcript’s
English translations allowed the court to assess whether Arroyo’s live interpretations were
accurate. Defense counsel then responded, “if the [d]efense believes that there’s an unfair
translation, we would certainly call a witness to that effect.” Defense counsel further stated,
“[a]t this point, we don’t take issue with the translation.” Defense counsel indicated that
“[w]e accept that Investigator Arroyo has accepted that it’s fair and accurate.” The court then
admitted the audio-recording and the written transcript into evidence.
¶ 17 During the recorded interview, which was played for the court, defendant admitted to
touching M.M.’s vagina with his hand and penis on approximately four occasions. However,
he denied inserting his penis into the vagina. In addition, he admitted to placing his mouth,
lips, and tongue on M.M.’s vagina. He further admitted to grabbing M.M.’s buttocks with his
hands and rubbing his penis on her buttocks. Defendant was then asked if he “put it inside.”
Arroyo’s live interpretation of defendant’s answer was: “no just rubbing it on her butt. I did
not insert it or anything.” The written transcript’s English translation of defendant’s answer
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was: “[n]o only around the rim I would do like this but I would not put it inside or anything.”
Defendant admitted that this happened “three or four times.”
¶ 18 The State rested its case, and defendant did not present any evidence.
¶ 19 The trial court found defendant guilty of counts I, VII, and XIV. Regarding count I,
which charged defendant with predatory criminal sexual assault of a child in that he
committed an act of sexual penetration by putting “his penis in the sex organ of M.M.,” the
trial court found that the words “in the sex organ of M.M.” were surplusage. The court
explained that, to prove an act of sexual penetration, the State had to prove “any contact,
however slight, between the sex organ or anus of one person by an object, the sex organ,
mouth or anus of another person” (720 ILCS 5/12-12(f) (West 2010)). The court found that
defendant admitted to contact between his penis and M.M.’s vagina and that the DNA
evidence corroborated defendant’s confession.
¶ 20 Regarding count VII, which charged defendant with predatory criminal sexual assault of
a child in that he committed an act of sexual penetration by putting “his penis in the buttocks
of M.M.,” the court again found that the words “in the buttocks of M.M.” were surplusage.
The court found that, during the interview, defendant admitted to rubbing his penis “around
the rim” of M.M.’s anus. Furthermore, the court found that, although no DNA profile could
be developed from the semen found on the anal swab, the presence of semen on the anal
swab corroborated defendant’s confession. Based on this evidence, the court also found
defendant guilty of count XIV, which charged defendant with aggravated criminal sexual
abuse in that he “placed his penis on the buttocks of M.M.” for the purpose of sexual
gratification or arousal.
¶ 21 Defendant filed a posttrial motion, in which he asserted, without supporting analysis, that
the trial court erred in “allowing the State to admit [d]efendant’s statements and transcript of
the statements during the trial over [d]efense objection.” The court denied the motion.
¶ 22 Following a sentencing hearing, the court imposed consecutive eight-year sentences for
counts I and VII. The court ruled that the conviction of count XIV merged into the conviction
of count VII, so it imposed no sentence for count XIV. Defendant timely appeals.
¶ 23 II. ANALYSIS
¶ 24 On appeal, defendant challenges only his conviction of count VII, predatory criminal
sexual assault of a child. He argues (1) that the trial court improperly relied on the transcript
of the audio-recording of his interview as substantive evidence, and (2) that the State failed to
prove beyond a reasonable doubt that his penis made any contact with the victim’s anus. In
addition, the State asks this court to remand to the trial court for sentencing on defendant’s
conviction of count XIV, arguing that the trial court incorrectly merged defendant’s
conviction of aggravated criminal sexual abuse into his conviction of predatory criminal
sexual assault of a child.
¶ 25 A. Transcript of Defendant’s Interview
¶ 26 Defendant argues that the trial court erred in relying on the written transcript of the
audio-recording of his interview with police as substantive evidence. He concedes that
Arroyo laid a sufficient foundation for the written transcript and that the trial court properly
admitted it into evidence. However, he invokes the well-established rule that, while it is
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proper to admit a written transcript of a recording to assist the trier of fact, it is the recording
itself, not the transcript, that is the evidence to be considered (People v. Criss, 307 Ill. App.
3d 888, 899 (1999)). Defendant further maintains that the trial court’s reliance on the
transcript as substantive evidence prejudiced him, because there is a “conflict” between the
transcript and the recording. He contends that the transcript contains the phrase “around the
rim,” implying anal contact, while the recording does not.
¶ 27 The State responds that, because the audio-recording was partly in English and partly in
Spanish, while the transcript was entirely in English, the transcript was “substantively
distinct” from the recording. Thus, the State argues, the transcript was more than an aid for
the trier of fact, and the trial court properly relied on the transcript as substantive evidence.
¶ 28 Initially, we note that defendant concedes that he did not raise this specific issue before
the trial court. He asks that we review it under the plain-error doctrine. Alternatively, he
maintains that trial counsel was ineffective for failing to argue that it was error to rely on the
transcript as substantive evidence. Because we conclude that no error occurred, we need go
no further in addressing defendant’s plain-error or ineffective-assistance-of-counsel
arguments. See People v. Miller, 2014 IL App (2d) 120873, ¶ 17 (“[T]he first step in
determining whether the plain-error doctrine applies is to determine whether any reversible
error occurred.”); see also People v. Mahaffey, 194 Ill. 2d 154, 173 (2000) (the prejudice
prong of the ineffective-assistance-of-counsel test cannot be established when no error has
occurred), overruled on other grounds by People v. Wrice, 2012 IL 111860.
¶ 29 The parties disagree over the applicable standard of review. Defendant contends that
de novo review applies because “the issue is not whether the transcript was admissible” but
whether the trial court was permitted to rely on the written transcript as substantive evidence.
Defendant relies on People v. Munoz, 348 Ill. App. 3d 423, 438 (2004), which held that
de novo review is appropriate when an evidentiary ruling is exclusively based upon the
submission of documents. The State responds that evidentiary rulings are subject to review
for abuse of discretion and questions whether this aspect of Munoz survived the supreme
court’s decision in People v. Taylor, 2011 IL 110067, ¶ 27, holding that the admission of a
videotape is subject to abuse-of-discretion review. The State further argues that we need not
decide which standard applies, as the result would be the same under either one. We agree
with the State that our conclusion would be the same under either standard, so we leave
resolution of this issue to another day. See People v. Robinson, 391 Ill. App. 3d 822, 840
(2009) (“[W]e leave the resolution of this issue to another day, as our conclusion would be
the same applying either standard.”).
¶ 30 Turning to the merits, defendant accurately recites the general rules governing the use at
trial of transcripts of recorded conversations. In the context of a jury trial, one court
explained the rules as follows:
“It is well settled that it is proper for a trial court to permit the jury to use written
transcripts of recorded conversations to assist them while they listen to the
conversations, when the transcripts are used solely for this limited purpose and are
collected from the jurors after they have listened to the tapes. [Citations.] Even when
used for this limited purpose, however, the trial court should admonish the jury as to
the purpose of the transcripts and to instruct the jury to determine for itself the events
transpiring on the tape. [Citations.]” Criss, 307 Ill. App. 3d at 899.
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The court further explained that “the tape rather than the transcript” is the evidence and that
the transcript is merely an aid for the trier of fact. Criss, 307 Ill. App. 3d at 901.
¶ 31 Neither party has cited, and our research has not uncovered, any Illinois case addressing
whether these general rules apply to a transcript that contains translations of foreign-language
statements in a recording. While lower federal court decisions are not binding upon state
courts, it is permissible to look to them as persuasive authority. Criss, 307 Ill. App. 3d at 900.
Having looked to such decisions, we hold that it was proper for the trial court to rely on the
translations in the transcript as substantive evidence.
¶ 32 In United States v. Fuentes-Montijo, 68 F.3d 352 (9th Cir. 1995), the Ninth Circuit
rejected the defendants’ argument that it was error to instruct the jury to rely on transcripts
that contained English translations of Spanish-language recordings. Like defendant in our
case, the defendants in Fuentes-Montijo relied on “the longstanding rule that the tapes
themselves are the primary evidence.” Fuentes-Montijo, 68 F.3d at 354. In rejecting this
argument, the court reasoned that “[w]hen faced with a taped conversation in a language
other than English and a disputed English translation transcript, the usual admonition that the
tape is the evidence and the transcript only a guide is not only nonsensical, it has the potential
for harm where the jury includes bilingual jurors.” Fuentes-Montijo, 68 F.3d at 355-56; see
also United States v. Bahadar, 954 F.2d 821, 830-31 (2d Cir. 1992) (holding that it was
proper to permit the jury to rely on English-translation transcripts of recordings of
conversations conducted in a mixture of English and Pakistani, reasoning that it was “hard to
imagine any other proper and effective handling of this evidence”); United States v. Cruz,
765 F.2d 1020, 1024 (11th Cir. 1985) (holding that it was proper to permit the jury to rely on
an English-translation transcript of a Spanish-language recording as substantive evidence).
¶ 33 We find the reasoning of Fuentes-Montijo and similar cases to be persuasive. Where a
recording contains statements in a foreign language, it would be impractical, or even
impossible, to require the trier of fact to rely on the recording to the exclusion of an
English-translation transcript. As our supreme court noted in 1859, “[w]hen the facts,
conversations or admissions, admissible in evidence, are known to a person who does not
understand and speak the language in which the trial is conducted, then the only means by
which the jury or court trying the issue can arrive at the facts, is from the evidence through
an interpreter.” Schnier v. People, 23 Ill. 11, 23 (1859); see also People v. Carmona-Olvara,
363 Ill. App. 3d 162, 167 (2005) (quoting this language from Schnier). Likewise, where a
recording contains statements in a foreign language, the trier of fact can consider those
statements as evidence only if the statements have been translated into English. Therefore,
the trial court did not err in relying on the transcript’s English-language translations as
substantive evidence.
¶ 34 That the recording in this case contained Arroyo’s live interpretations of defendant’s
answers does not alter our conclusion. During the interview, Arroyo served as an interpreter.
Defendant gave his answers in Spanish, and Arroyo interpreted the answers for Officer
Bosshart, who spoke English. We see no reason why the State should be bound by Arroyo’s
live interpretations. Unlike Arroyo, who was interpreting defendant’s answers in person with
little time to consider the accuracy of his interpretations, the translator who prepared the
transcript had the luxury of listening to the recording, multiple times if necessary, to ensure
that he or she accurately translated defendant’s answers. Moreover, as we have noted,
defendant concedes that there was a proper evidentiary foundation for the transcript. The trial
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court was thus entitled to rely on the translations in the transcript. See People v. Brown, 2013
IL 114196, ¶ 48 (noting that it is the responsibility of the trier of fact to resolve conflicts in
the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence).
¶ 35 In reaching this holding, we emphasize that defendant had the opportunity to offer an
alternative translation of his answers, to cross-examine Arroyo regarding the accuracy of the
transcript, or to call his own interpreter to testify to the proper interpretation of his answers.
See Carmona-Olvara, 363 Ill. App. 3d at 167-68 (holding that a defendant has the right to
offer a competing translation of his statement to a police officer). However, defense counsel
did none of these things. Although defense counsel initially objected to the transcript on the
basis that “we don’t know who transcribed th[e] audio statements” and “we don’t know
whether [the] Spanish portion[s] [were] translated correctly and accurately,” counsel later
abandoned this objection. During the colloquy regarding the transcript’s admissibility,
defense counsel stated that “if the [d]efense believes that there’s an unfair translation, we
would certainly call a witness to that effect.” Defense counsel later stated that “we don’t take
issue with the translation” and “[w]e accept that Investigator Arroyo has accepted that it’s
fair and accurate.”
¶ 36 Furthermore, although defendant argues that there is a “conflict” between the transcript
and the recording, in that the transcript contains the phrase “around the rim,” while the
recording does not, this is different from challenging the transcript’s accuracy. The only
“conflict” between the transcript and the recording is that defendant’s answers are in Spanish
on the recording but in English in the transcript. Thus, while defendant is correct that the
recording does not contain the English phrase “around the rim,” he does not challenge that
wording as an accurate English translation of his answer. As we concluded above, the trial
court did not err in relying on the English translation as substantive evidence, because it
would have been impractical, or even impossible, for the court to rely on the Spanish
portions of the recording as substantive evidence.
¶ 37 B. Sufficiency of the Evidence
¶ 38 Defendant also challenges his conviction of count VII, on the basis that the State failed to
prove beyond a reasonable doubt that his penis made any contact with M.M.’s anus. In
making this argument, defendant contends that it was improper for the trial court to rely on
the “around the rim” statement in the transcript as substantive evidence, an argument that we
have already rejected. Alternatively, he contends that “around the rim” could have meant
“around the rim of the buttocks,” rather than “around the rim of the anus.” He further argues
that the remainder of the evidence indicated that his penis contacted M.M.’s buttocks only.
¶ 39 The State responds that, viewing the “around the rim” statement in light of the evidence
of semen found on the anal swab and on M.M.’s underwear, a rational trier of fact could have
found beyond a reasonable doubt that defendant’s penis contacted M.M.’s anus.
¶ 40 When presented with a challenge to the sufficiency of the evidence, it is not the function
of the reviewing court to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985).
Rather, “ ‘the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106 Ill. 2d at 261
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The reviewing court should not
substitute its judgment for that of the trier of fact, who is responsible for weighing the
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evidence, assessing the credibility of witnesses, resolving conflicts in the evidence, and
drawing reasonable inferences and conclusions from the evidence. People v. Sutherland, 223
Ill. 2d 187, 242 (2006). However, a reviewing court must set aside a defendant’s conviction
if a careful review of the evidence reveals that it was so unreasonable, improbable, or
unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Evans, 209
Ill. 2d 194, 209 (2004).
¶ 41 Count VII charged defendant with predatory criminal sexual assault of a child under
section 12-14.1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-14.1(a)(1) (West
2010)). That section required the State to prove that defendant was 17 years of age or older
and committed an act of sexual penetration with a victim who was under 13 years of age
when the act was committed. 720 ILCS 5/12-14.1(a)(1) (West 2010). The Code defines
“sexual penetration,” in pertinent part, as “any contact, however slight, between the sex
organ or anus of one person by an object, the sex organ, mouth or anus of another person.”
720 ILCS 5/12-12(f) (West 2010). “Evidence that the defendant’s sex organ only touched an
area near the complainant’s sex organ or anus is insufficient to establish the element of
penetration.” People v. Atherton, 406 Ill. App. 3d 598, 609 (2010). The State must prove
“ ‘actual contact.’ ” Atherton, 406 Ill. App. 3d at 609 (quoting People v. Finley, 178 Ill. App.
3d 301, 307 (1988)).
¶ 42 The evidence relevant to count VII, which alleged sexual penetration of M.M.’s anus
with defendant’s penis, included the following. M.M. testified that defendant’s “private
parts” touched her “on the back of [her] private parts.” When the State then showed her a
drawing of a female child and asked her to place an “X” on the part of the body that
defendant’s penis had touched, she marked an “X” on the female child’s buttocks. Dr.
Rangala testified that, while completing the sexual assault kit on M.M., she swabbed the
external and internal parts of the anus. Webb testified that the anal swab tested positive for
semen, but that there was an insufficient amount of semen to produce a male DNA profile.
However, additional semen located on the external genitalia swab produced a DNA profile
that was a match for defendant, and the semen found on M.M.’s underwear produced a male
DNA profile from which defendant could not be excluded. During his interview, defendant
admitted to grabbing M.M.’s buttocks with his hands and rubbing his penis on her buttocks.
Defendant was then asked if he “put it inside.” The written transcript’s English translation of
defendant’s answer was “[n]o only around the rim I would do like this but I would not put it
inside or anything.”
¶ 43 Because we have already concluded that it was proper for the trial court to rely on the
transcript–including the “around the rim” statement–as substantive evidence, we must
conclude that, viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found beyond a reasonable doubt that defendant’s penis made
contact, however slight, with the anus of M.M. Although defendant contends that “around the
rim” could have meant “around the rim of the buttocks,” it was the trial court’s responsibility
to draw reasonable inferences from the evidence. Especially considering the evidence of
semen found on the anal swab, it was reasonable to infer that “around the rim” meant
“around the rim of the anus.” M.M.’s testimony that defendant’s penis touched “the back of
[her] private parts,” and the fact that she marked an “X” on the buttocks of the diagram of a
female child, also supported this inference.
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¶ 44 Defendant contends that Dr. Rangala’s use of the same swab on the external and internal
parts of the anus meant that “the presence of sperm could have been attributed to contact near
the anus instead of contact with or an intrusion of it.” However, Dr. Rangala’s testimony was
that she swabbed the external and internal parts of the anus, not areas around the anus. The
diagram on which the doctor circled the area that she swabbed is consistent with her
testimony.
¶ 45 Defendant also emphasizes Arroyo’s testimony that defendant described the contact his
penis made with M.M.’s buttocks as “just a circular motion around the–on the buttocks not
the anus.” However, as we have said, we see no reason why the State should be bound by
Arroyo’s interpretations of defendant’s answers. Again, the trial court was entitled to rely on
the translations in the transcript.
¶ 46 Furthermore, defendant’s reliance on People v. Oliver, 38 Ill. App. 3d 166 (1976), is
misplaced. In Oliver, the appellate court reduced the defendant’s conviction from deviate
sexual assault to attempted deviate sexual assault, where the only evidence of penis-anus
touching was the complaining witness’s use of the phrase “ ‘in my butt’ ” when describing
the defendant’s conduct. Oliver, 38 Ill. App. 3d at 170. Moreover, the complaining witness,
who was not a minor, had said out of court that the defendant’s penis “went along her
‘cheeks.’ ” Oliver, 38 Ill. App. 3d at 170. Here, the evidence is much stronger. In addition to
defendant’s admission to rubbing his penis “around the rim,” there was evidence of semen on
or in M.M.’s anus.
¶ 47 C. State’s Request for a Remand
¶ 48 The State asks this court to remand to the trial court for sentencing on defendant’s
conviction of count XIV, which charged defendant with aggravated criminal sexual abuse.
According to the State, the trial court incorrectly concluded that aggravated criminal sexual
abuse was a lesser included offense of predatory criminal sexual assault of a child. Thus, the
State argues, defendant should be sentenced on his conviction of count XIV.
¶ 49 Defendant responds that the State forfeited this argument by failing to raise it below.
Moreover, defendant argues, the State fails to address the first step of a one-act, one-crime
analysis–i.e., whether the two convictions were predicated upon the same physical act.
According to defendant, because the trial court found that his convictions were based on the
same physical act, his conviction of aggravated criminal sexual abuse should be vacated.
¶ 50 We first address defendant’s forfeiture argument. In People v. Yaworski, 2011 IL App
(2d) 090785, this court recognized its authority, in a direct appeal by a criminal defendant, to
grant the State’s request for a remand for imposition of a sentence on a conviction that was
improperly vacated under one-act, one-crime principles. Yaworski, 2011 IL App (2d)
090785, ¶ 10 (citing People v. Scott, 69 Ill. 2d 85, 88 (1977)). However, we concluded that
the State had forfeited its one-act, one-crime argument by failing to raise it below. Yaworski,
2011 IL App (2d) 090785, ¶ 10. Ultimately, we overlooked the forfeiture, reasoning that
“[s]ociety has an interest in seeing convictions entered for offenders whose guilt has been
proved beyond a reasonable doubt after a fair trial.” Yaworski, 2011 IL App (2d) 090785,
¶ 10. We further reasoned that, “when that interest has been frustrated by the trial court’s
misapplication of the sometimes nebulous rules concerning merger of convictions, relaxation
of the forfeiture doctrine is appropriate.” Yaworski, 2011 IL App (2d) 090785, ¶ 10.
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¶ 51 Addressing the merits of the issue, we concluded that the trial court had improperly
merged the defendant’s conviction of driving while his license was revoked (DWLR) into his
conviction of driving under the influence of alcohol (DUI). Yaworski, 2011 IL App (2d)
090785, ¶ 10. Rather than remand to the trial court for sentencing, however, we imposed a
sentence of three years’ imprisonment for DWLR, to run concurrently with the defendant’s
sentence for DUI. Yaworski, 2011 IL App (2d) 090785, ¶ 10.
¶ 52 In People v. Ramos, 339 Ill. App. 3d 891 (2003), by contrast, this court declined to
address the State’s argument, raised for the first time on appeal, that a conviction had been
improperly vacated under one-act, one-crime principles. Ramos, 339 Ill. App. 3d at 905.
Although our decision was not expressly based on considerations of forfeiture, we considered
the prejudice that would result to the defendant if we permitted the State to raise its argument
for the first time on appeal. We reasoned that, “[i]f the State had made a timely objection,
defendant would have been on notice of the State’s position and defendant would have had
the opportunity to decide whether he wanted to appeal, knowing that on appeal the merged
offenses could be reinstated.” Ramos, 339 Ill. App. 3d at 905. We acknowledged that, in
People v. Dixon, 92 Ill. 2d 346 (1982), our supreme court stated that not permitting the State
to raise an improper-merger argument on appeal could have “ ‘mischievous consequences,’ ”
including that “ ‘crimes could go unpunished.’ ” Ramos, 339 Ill. App. 3d at 905 (quoting
Dixon, 91 Ill. 2d at 354). However, we distinguished Dixon on the basis that we were not
vacating any of the defendant’s convictions. Ramos, 339 Ill. App. 3d at 905. Thus, even
without a remand, the defendant would not go unpunished. Ramos, 339 Ill. App. 3d at 905.
¶ 53 Here, the State concedes that it did not object to the trial court’s decision to merge the
conviction of count XIV into the conviction of count VII. Therefore, the State has forfeited
this argument. Yaworski, 2011 IL App (2d) 090785, ¶ 10. As we explain below, we decline to
overlook the State’s forfeiture for two reasons.
¶ 54 First, although Yaworski identifies a compelling reason to relax the forfeiture doctrine,
the facts of that case are distinguishable. The improperly merged conviction in Yaworski was
DWLR, which does not require mandatory consecutive sentencing. In that case, rather than
remand to the trial court for sentencing, we imposed a three-year sentence for DWLR to be
served concurrently with the defendant’s sentence for DUI. Yaworski, 2011 IL App (2d)
090785, ¶ 10. As a result, the defendant spent no additional time in prison, and our relaxation
of the forfeiture doctrine caused no practical prejudice to the defendant.
¶ 55 In this case, by contrast, if we were to overlook the State’s forfeiture and ultimately
remand for sentencing, defendant’s conviction would require mandatory consecutive
sentencing. See 730 ILCS 5/5-8-4(d)(2) (West 2010) (requiring consecutive sentences for a
defendant convicted of predatory criminal sexual assault of a child). Thus, we cannot solely
consider society’s interest in seeing defendant punished for his conviction of count XIV, but
must also consider the prejudice to defendant. Because of this, the reasoning of Ramos is
applicable here. Specifically, if the State had challenged the court’s merger decision below,
then defendant would have been on notice of the State’s position and could have decided
whether he wanted to appeal, knowing that the merged conviction could be reinstated.
Ramos, 339 Ill. App. 3d at 905. In light of the mandatory consecutive sentencing, defendant
would have faced a difficult choice and might have chosen not to appeal.
¶ 56 The second reason that we decline to relax the forfeiture doctrine is that, were we to do
so, the State’s failure to address the first step of a one-act, one-crime analysis in its brief
- 11 -
would further impede our review. The one-act, one-crime doctrine involves a two-step
analysis. People v. Miller, 238 Ill. 2d 161, 165 (2010). The first step is to determine whether
the defendant’s conduct involved multiple acts or a single act. Miller, 238 Ill. 2d at 165. If
the defendant’s conduct consisted of a single act, multiple convictions are improper. Miller,
238 Ill. 2d at 165. If the defendant’s conduct involved multiple acts, then the second step of
the analysis is to determine whether any of the offenses are lesser included offenses. Miller,
238 Ill. 2d at 165. If an offense is a lesser included offense, then multiple convictions are
improper. Miller, 238 Ill. 2d at 165.
¶ 57 As defendant points out, the State focuses exclusively on the second step of the analysis.
It contends that the trial court improperly applied the charging-instrument approach to
determine that aggravated criminal sexual abuse was a lesser included offense of predatory
criminal sexual assault of a child. In doing so, it correctly asserts that the abstract-elements
approach, not the charging-instrument approach, applies when a defendant alleges a one-act,
one-crime violation as to multiple charged offenses. Miller, 238 Ill. 2d at 173. It also
correctly points out that, under the abstract-elements approach, aggravated criminal sexual
abuse is not a lesser included offense of predatory criminal sexual assault of a child. People
v. Stull, 2014 IL App (4th) 120704, ¶ 64.
¶ 58 However, as we interpret it, the trial court’s ruling was based on the first step of a
one-act, one-crime analysis, not on the charging-instrument approach. At his sentencing
hearing, in arguing that his conviction of count XIV should be merged into his conviction of
count VII, defendant discussed the charging-instrument approach, but also contended that
counts VII and XIV were based on “the same single act.” He argued that the court “used the
same evidence” in finding him guilty of the two counts. Addressing defendant’s arguments,
the trial court reviewed the language of counts VII and XIV and concluded that they were
“basically of the same physical act.” It then said that, when it rendered its original ruling on
counts VII and XIV, it “didn’t think through that at the time,” referring to the fact that the
convictions were based on the same physical act. The court then concluded that count XIV
was “a lesser included” of count VII and merged the convictions.
¶ 59 Although defendant’s argument at the sentencing hearing and the trial court’s ruling were
not entirely clear, the substance of the court’s merger decision was that the convictions of
counts VII and XIV were “basically of the same physical act.” Indeed, when the court found
defendant guilty of count XIV, it made no new factual findings, but stated that its finding of
guilt was based on “the reasons that [the court] previously stated” in finding defendant guilty
of count VII. In deciding to merge the convictions, the court noted that it had not thought
“through that at the time.” Therefore, we conclude that the court’s determination that the two
convictions were based on the same physical act was a determination under the first prong of
a one-act, one-crime analysis, not under the charging-instrument approach. Accordingly,
even if we were to overlook the State’s forfeiture deriving from its failure to raise the issue
below, we would be confronted with another level of forfeiture deriving from its failure to
address the first-prong of a one-act, one-crime analysis in its brief. See People v. Olsson,
2014 IL App (2d) 131217, ¶ 15 (noting that, pursuant to Illinois Supreme Court Rule
341(h)(7) (eff. Feb. 6, 2013), a party’s failure to argue a point in his or her brief results in
forfeiture of the issue on appeal); see also Ill. S. Ct. R. 341(i) (eff. Feb. 6, 2013) (requiring an
appellee’s brief to comply with Rule 341(h)(7)).
- 12 -
¶ 60 We also note that, even if the State is correct that the trial court improperly applied the
charging-instrument approach in reaching its decision, it might be that the trial court reached
the correct judgment but for the wrong reason. We review the trial court’s judgment, not its
reasoning. Village of Bull Valley v. Zeinz, 2014 IL App (2d) 140053, ¶ 16. Furthermore, we
can affirm the trial court’s judgment on any basis supported by the record. People v.
Perez-Gonzalez, 2014 IL App (2d) 120946, ¶ 31. Therefore, it was necessary for the State to
discuss the first prong of a one-act, one-crime analysis in order to fully address the propriety
of the court’s merger decision. In sum, we decline to overlook the State’s forfeiture.
¶ 61 Regarding defendant’s request that we vacate his conviction of aggravated criminal
sexual abuse under one-act, one-crime principles, defendant has already received the relief he
requests. The effect of a trial court merging one conviction into another conviction is vacatur
of the merged conviction. People v. Martino, 2012 IL App (2d) 101244, ¶ 8 n.1 (citing
People v. Jones, 337 Ill. App. 3d 546, 555 (2003), citing People v. Kargol, 219 Ill. App. 3d
66, 75 (1991)). Thus, when the trial court merged the conviction of count XIV into the
conviction of count VII, the conviction of count XIV was vacated by operation of law.
Indeed, the mittimus shows convictions only of counts I and VII.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 64 Affirmed.
- 13 -
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Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00748-CV
EX PARTE Christopher GUERRERO
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: November 5, 2014
PETITION FOR WRIT OF HABEAS CORPUS DENIED
On October 27, 2014, relator Christopher Guerrero filed an original pro se habeas corpus
proceeding contending he is being illegally confined after the trial court found him in contempt
for failure to pay previously ordered child support and ordered him confined for 180 days.
Specifically, Guerrero asserts: (1) the trial court failed to inform him of his right to counsel under
the Texas Family Code; (2) the trial court failed to make a determination of his ability to purge
himself of the child support obligation; and (3) Sheriff Susan Pamerleau has failed to give him
“good time” credit in violation of his right to equal protection under the law. See TEX. FAM. CODE
ANN. §§ 157.008(c), 157.163 (West 2014).
1
This proceeding arises out of Cause No. 1999EM503566, styled In the Interest of A.G., K.A.G., P.G., Children,
pending in the 224th Judicial District Court, Bexar County, Texas, the Honorable Eric Rodriguez presiding.
04-14-00748-CV
This court received from the trial court clerk copies of the trial court’s Order on
Appointment of Counsel and Setting Cause for Trial, and Order Enforcing Child Support and
Medical Support Obligation. The Order on Appointment of Counsel, which was signed by
Guerrero, indicates that a hearing was conducted on September 12, 2013, and reflects the trial
court’s finding that Guerrero “is not indigent and not entitled to the appointment of an attorney.”
A relator is entitled to habeas corpus relief if he establishes he was deprived of liberty
without due process of law, or if we conclude the judgment ordering confinement is void. See In
re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding); In re Alexander, 243 S.W.3d 822,
824 (Tex. App.—San Antonio 2007, orig. proceeding). The purpose of a habeas corpus proceeding
is not to determine the relator’s guilt or innocence, but to ascertain if the relator has been
unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding);
Alexander, 243 S.W.3d at 827.
In family law enforcement proceedings, the Family Code requires the trial court to
determine whether the proceeding is one in which incarceration may result and, if so, the court is
obligated to inform a respondent of the right to counsel and, if indigent, the right to an appointed
attorney. See TEX. FAM. CODE ANN. § 157.163(a), (b). In the present case, Guerrero’s signature
appears on the Order on Appointment of Counsel. The Order provides, “this is a proceeding in
which incarceration of the Respondent may result” and reflects the trial court’s finding that
Guerrero “is not indigent and not entitled to the appointment of an attorney.” Guerrero also signed
the separate Order Enforcing Child Support and Medical Support Obligation, entered on the same
date, which reflects that Guerrero “appeared in person Pro Se and was advised of his rights,
including the right to a court appointed attorney if found indigent. The Court finds that
CHRISTOPHER GUERRERO knowingly and intelligently waived his rights and proceeded Pro
Se and agreed to the entry of these orders.” We conclude the trial court properly admonished
-2-
04-14-00748-CV
Guerrero of his right to counsel in accordance with the Family Code. See TEX. FAM. CODE ANN.
§ 157.163.
Guerrero also complains the trial court failed to make a determination of his ability to purge
himself of the child support obligation. The Family Code provides that an obligor may plead as an
affirmative defense to an allegation of contempt that he lacked the ability and resources to provide
support in the amount ordered. See TEX. FAM. CODE ANN. § 157.008(c). However, it is Guerrero’s
burden in the trial court to conclusively establish the affirmative defense. See Ex parte Rojo, 925
S.W.2d 654, 656 (Tex. 1996) (orig. proceeding). It is also his burden as relator in this proceeding
to provide this court with a record sufficient to establish his right to habeas corpus relief. See TEX.
R. APP. P. 52.7(a); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The
trial court’s Order Enforcing Child Support and Medical Support Obligation includes its findings
that Guerrero “could have timely paid the above specified child support in full” and “could have
provided the required medical support during each specified time period.” Guerrero has failed to
provide this court with a record supporting his claim that he is entitled to habeas corpus relief on
the basis of conclusively establishing an affirmative defense in the trial court.
Finally, Guerrero contends he is being denied equal protection under the law by the denial
of “good time” credits on his sentence when such credits are available to prisoners serving
sentences on criminal charges. While article 42.032 of the Texas Code of Criminal Procedure gives
the sheriff discretion to award “good time” credit to those being punished by criminal contempt
orders, the statute does not apply to those being punished by coercive civil contempt orders. See
TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (West Supp. 2014); Ex parte Acly, 711 S.W.2d 627,
628 (Tex. 1986) (orig. proceeding). The trial court’s order in this case imposes both punitive
contempt and coercive civil contempt findings. Guerrero would not be entitled to consideration for
“good time” credit under the statute for the criminal contempt portion of the order until he has
-3-
04-14-00748-CV
satisfied the coercive contempt portion of the order. See Acly, 711 S.W.2d at 628. The record does
not demonstrate that Guerrero has satisfied the coercive contempt requirements of the trial court’s
order. Accordingly, we are unable to say that there is any abuse of discretion in the failure to award
“good time” credits in this instance. TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837. Guerrero
has not established that he is entitled to habeas corpus relief on this ground. See TEX. CODE CRIM.
PROC. ANN. art. 42.032 § 2; Ex parte Acly, 711 S.W.2d at 628.
Relator’s petition for writ of habeas corpus is denied.
PER CURIAM
-4-
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Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER
Marion County Public Defender’s Office Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 19 2012, 9:20 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
DONZAHE PEARSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1202-CR-119
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable James B. Osborn, Judge
Cause No. 49F15-1110-FD-74014
October 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge
In this interlocutory appeal, Donzahe Pearson challenges the trial court’s denial of
his motion to dismiss the State’s charge that he is a sex offender who failed to possess
valid identification, a Class D felony. Ind. Code § 11-8-8-15 (2007). We affirm and
remand.
Pearson is subject to Indiana’s sex offender registry requirements due to a prior
conviction for child molesting. On September 25, 2011, Pearson was released from the
Indiana Department of Correction. He rented a room at a hotel. On September 28, 2011,
Pearson filled out a sex offender registration form for local law enforcement. On the
form, he listed the hotel as his “current address,” Appellant’s App. p. 29, although he
provided an incorrect street address for the hotel. Pearson also listed his mother as his
next of kin and provided her address on the form.
On September 30, 2011, the Indiana Bureau of Motor Vehicles (“BMV”) issued a
driver’s license to Pearson. The license lists his parents’ address as his address.
Pearson’s counsel argued to the trial court that the BMV would not allow the use of the
hotel’s address on the license because Pearson could not prove that he lived there, but the
BMV accepted his parents’ address. However, there are no facts in the record to support
this argument.
On October 14, 2011, an officer went to the hotel to determine whether Pearson
was complying with his registry requirements. Pearson told the officer that he had been
living at the hotel for over four weeks. The officer concluded that the address on
Pearson’s driver’s license was inaccurate and arrested him.
2
The State charged Pearson with failure to possess valid identification. Pearson
filed a motion to dismiss the charging information, and the State filed a response. The
trial court denied Pearson’s motion after a hearing. Upon Pearson’s motion, the trial
court certified its ruling for interlocutory review, and this Court accepted the
interlocutory appeal.
Pearson presents the following restated issue for review: Whether the trial court
abused its discretion in denying his motion to dismiss.
As a general rule, when a defendant files a motion to dismiss an information, the
facts alleged in the information are to be taken as true. State v. Gill, 949 N.E.2d 848, 850
(Ind. Ct. App. 2011), trans. denied. We review a trial court’s denial of a motion to
dismiss for an abuse of discretion. Ceaser v. State, 964 N.E.2d 911, 918 (Ind. Ct. App.
2012), trans. denied. We therefore reverse only where the decision is clearly against the
logic and effects of the facts and circumstances. Id. Questions of fact to be decided at
trial or facts constituting a defense are not properly raised by a motion to dismiss. Id.
A defendant may move to dismiss an information based upon any of the following
grounds:
(1) The indictment or information, or any count thereof, is defective under
section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of allegation in
counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense with sufficient
certainty.
3
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense charged.
(7) The prosecution is barred by reason of a previous prosecution.
(8) The prosecution is untimely brought.
(9) The defendant has been denied the right to a speedy trial.
(10) There exists some jurisdictional impediment to conviction of the
defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter of law.
Ind. Code § 35-34-1-4 (1983).
Here, Pearson argues that the information must be dismissed because “he has
disproved one of the essential elements of the charge.” Appellant’s Reply Br. p. 1.
Specifically, he contends that his driver’s license is valid pursuant to the BMV’s
requirements and that the State may not collaterally attack the BMV’s decision to issue a
license to him.1
Pursuant to the statute under which Pearson has been charged, a sex or violent
offender who is a resident of Indiana “shall obtain and keep in the sex or violent
offender’s possession: (1) a valid Indiana driver’s license . . . .” Ind. Code § 11-8-8-15.
The statutes that address registration of sex offenders do not define a “valid Indiana
driver’s license.” Therefore, we look to the statutes that govern the BMV. Indiana Code
section 9-24-11-5(a) (2010) provides that a driver’s license must contain “[t]he address of
the principal residence of the . . . licensee.” For purposes of that statute, “residence” is
1
The State claims that Pearson has waived this contention by failing to present it to the trial court.
Having reviewed the record, we disagree with the State and address the merits of Pearson’s appeal.
4
defined as “the place . . . where a person has the person’s true, fixed, and permanent
home and principal establishment; and . . . to which the person has, whenever absent, the
intention of returning.” Ind. Code § 3-5-2-42.5 (1995) (made applicable to Ind. Code §
9-24-11-5 by 140 Ind. Admin. Code 7-1.1-1(mm) (2009)).
In this case, there is a factual dispute as to whether the address on Pearson’s
driver’s license is his “principal residence” for purposes of Indiana Code section 9-24-11-
5. As Pearson notes, the BMV issued a license to him bearing his parents’ address.
However, there is no evidence in the record describing the information Pearson provided
to the BMV and the circumstances under which Pearson received his license, merely
statements by Pearson’s attorney. Furthermore, when the officer went to the hotel to
check up on Pearson, he told the officer that he had lived at the hotel “for over four
weeks.” Appellant’s App. p. 19. Thus, one could argue that the hotel, rather than
Pearson’s parents’ home, was Pearson’s “permanent home and principal establishment.”
If the hotel is Pearson’s residence, then his driver’s license does not comply with the
requirements of Indiana Code section 9-24-11-5 and is invalid for purposes of the
charging information.
Pearson nonetheless notes that according to the BMV’s records, his license is
“VALID.” Appellant’s App. p. 32. This notation, Pearson claims, precludes any further
argument as to the validity of his license. We disagree. It cannot be said that the BMV
has the resources to proactively investigate the truthfulness of each application for a
driver’s license or to monitor the ongoing validity of the address on every driver’s license
it issues. Therefore, in Indiana an applicant for a driver’s license bears the burden of
5
providing a truthful address. See Ind. Code § 35-43-5-2(c) (2006) (stating that knowingly
or intentionally providing a false address when applying for a driver’s license is a Class
D felony). In addition, a person who fails to timely seek a new driver’s license after
changing his address commits a Class C infraction. See Ind. Code §§ 9-24-13-4 (2007), -
5 (1991). We therefore reject Pearson’s claim that the BMV’s record is irrefutable
evidence of the validity of his license.
The facts surrounding the issuance of Pearson’s license and his residence must be
determined at trial and are not ripe for resolution on a motion to dismiss. See State v.
Houser, 622 N.E.2d 987, 988 (Ind. Ct. App. 1993) (rejecting a defendant’s claim on a
motion to dismiss that there was a lack of evidence to support one of the elements of the
charged offense because the claim was, in essence, a challenge to the sufficiency of the
evidence), trans. denied. The trial court did not abuse its discretion in denying Pearson’s
motion to dismiss.
For the reasons stated above, we affirm the judgment of the trial court and remand
for further proceedings.
Affirmed and remanded.
MATHIAS, J., and BRADFORD, J., concur.
6
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3289-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARTIC M. ROGERS, a/k/a
ARTIC ROGERTS and
ROGERS ARTIC,
Defendant-Appellant.
______________________________
Submitted April 9, 2019 – Decided April 22, 2019
Before Judges Fisher and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 11-03-
0401 and 11-03-0405.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele Erica Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Patrick F. Galdieri, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Artic Rogers appeals from a Law Division determination that
he was not entitled to 132 days of jail credit it previously awarded. We affirm.
In December 2010, defendant was arrested at a motel in Piscataway
Township on various charges related to unlawful possession of a handgun a nd
promoting prostitution. Defendant posted bail and was released from jail the
next day. In March 2011, a Middlesex County Grand Jury returned two
indictments against defendant related to that arrest. Indictment No. 11-03-0401
charged defendant with second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b) and 2C:58-4 (count one); third-degree promoting
prostitution, N.J.S.A. 2C:34-1(b)(2) (count two); and fourth-degree possession
of a defaced firearm, N.J.S.A. 2C:39-3(d) (count three). Indictment No. 11-03-
0405 charged defendant with second-degree certain persons not to have
weapons, N.J.S.A 2C:39-7(b). Defendant failed to appear for arraignment on
those charges, and a bench warrant was issued for his arrest.
Defendant was arrested in January 2011 in New York on unrelated charges
of kidnapping, assault, compelling prostitution, and use of a child less than
seventeen years old in a sexual performance. Defendant was subsequently
arrested for additional prostitution-related offenses committed in New York in
A-3289-17T4
2
April 2012. It appears defendant was detained pending disposition of his New
York charges after that arrest. On November 21, 2016, defendant pleaded guilty
to kidnapping and sex trafficking in New York and was sentenced to eleven
years imprisonment and five years of post-release supervision.
The Middlesex County Prosecutor's Office lodged a detainer with New
York authorities that sought defendant's transfer to New Jersey for prosecution
of the two indictments. Defendant waived extradition pursuant to Article III of
the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15 (IAD). On
September 19, 2017, defendant was transferred to New Jersey.
On December 18, 2017, defendant pleaded guilty to amended charges of
third-degree conspiracy to commit theft of hotel services, N.J.S.A. 2C:20-8(a)
and N.J.S.A. 2C:5-2, on Indictment No. 11-03-0401, and knowingly violating
firearms regulations, N.J.S.A. 2C:39-10(a)(1), on Indictment No. 11-03-0405.
On January 29, 2018, defendant was sentenced to a three-year prison term on
the theft of hotel services and a concurrent eighteen month term on the violation
of firearms regulations. Both sentences were made concurrent to defendant's
New York sentence. The remaining charges were dismissed.
Defendant's judgment of conviction (JOC) awarded a total of 135 days of
jail credit with 132 of those days representing the time from September 19, 2017
A-3289-17T4
3
to January 29, 2018. One month later, the trial court entered an amended JOC,
which eliminated the 132 days of jail credit attributable to the time held in New
Jersey under the IAD.
Defendant raises a single argument on appeal:
[DEFENDANT] IS ENTITLED TO 132 DAYS OF
ADDITIONAL JAIL CREDIT, TO REFLECT HIS
PRETRIAL INCARCERATION IN NEW JERSEY
WHILE BEING HELD ON THE INTERSTATE
AGREEMENT ON DETAINERS.
We find no merit in this argument and affirm.
"The IAD is an agreement among contracting states which sets out
circumstances under which a party state may obtain temporary custody of a
prisoner incarcerated in another jurisdiction." State v. Joe, 228 N.J. 125, 132
(2017) (quoting State v. Cook, 330 N.J. Super. 395, 412 (App. Div. 2000)). The
IAD is designed "'to encourage the expeditious and orderly disposition of
[outstanding] charges' and to determine the status of all detainers based on
'untried indictments, informations or complaints.'" State v. Carreker, 172 N.J.
100, 114 (2002) (alteration in original) (quoting N.J.S.A. 2A:159A -1).
Pursuant to Article III of the IAD, once "a detainer is filed, a defendant
serving an out-of-state prison term may request that New Jersey authorities
resolve their untried indictments within 180 days of the request." Joe, 228 N.J.
A-3289-17T4
4
at 132 (quoting N.J.S.A. 2A:159A-3(a)). If a defendant makes such an Article
III request, the "sending State 1 shall offer to deliver temporary custody" of the
defendant to New Jersey[2] authorities so the defendant can resolve his or her
New Jersey indictments in a "speedy and efficient" manner. N.J.S.A. 2A:159A-
5(a). The receiving state's "temporary custody" is for the sole purpose of
resolving the charges that form the basis of the detainer. N.J.S.A. 2A:159A-
5(d). The prisoner must be returned to the sending State "[a]t the earliest
practicable time." N.J.S.A. 2A:159A-5(e). While the prisoner is in the
temporary custody of the receiving state, "time being served on the [sending
State] sentence shall continue to run." N.J.S.A. 2A:159A-5(f). "For all purposes
other than that for which temporary custody . . . is exercised, the prisoner shall
be deemed to remain in the custody of and subject to the jurisdiction of the
sending State . . . ." N.J.S.A. 2A:159A-5(g).
Rule 3:21-8 provides a "defendant shall receive credit on the term of a
custodial sentence for any time served in custody in jail or in a state hospital
1
The "sending state" is the state in which the defendant is incarcerated at the
time he or she "initiates a request for final disposition pursuant to Article III" of
the IAD. N.J.S.A. 2A:159A-2(b). Here, New York is the sending state.
2
The "receiving state" is the state in which the defendant is tried pursuant to
Article III. N.J.S.A. 2A:159A-2(c). Here, New Jersey is the receiving state.
A-3289-17T4
5
between arrest and the imposition of sentence." State v. C.H., 228 N.J. 111, 117
(2017) (quoting R. 3:21-8). "These credits for pre-sentence custody are referred
to as 'jail credits.'" Ibid. (quoting State v. Rawls, 219 N.J. 185, 192 (2014)).
"Jail credits are 'mandatory, not discretionary,' when Rule 3:21-8 applies." Joe,
228 N.J. at 130 (quoting State v. Hernandez, 208 N.J. 24, 37 (2011)).
Jail credits are "day-for-day credits" that are applied to the "front end" of
a defendant's sentence, thereby reducing the defendant's overall sentence and
any term of parole ineligibility. Rawls, 219 N.J. at 193 (quoting Hernandez, 208
N.J. at 37). We review a defendant's challenge to an award or denial of jail
credits de novo. State v. DiAngelo, 434 N.J. Super. 443, 451 (App. Div. 2014).
In Hernandez, the Court held Rule 3:21-8 entitled defendants to "jail
credits, which are earned prior to the imposition of the first custodial sentence,"
for time spent in presentence custody against all sentences imposed on all
convictions. 208 N.J. at 50. However, "once the first sentence is imposed, a
defendant awaiting imposition of another sentence accrues no more jail credit
under Rule 3:21-8." Ibid.
Defendant acknowledges he is not entitled to the jail credit he seeks under
the holding of State v. Council, 137 N.J. Super. 306 (App. Div. 1975). He
A-3289-17T4
6
contends the reasoning in Council has been so eroded by Hernandez that it
should no longer be considered good law. Defendant is mistaken.
In Council, we held defendants placed in the temporary custody of New
Jersey authorities pursuant to the IAD were not entitled to jail credit for the time
they spent in New Jersey while awaiting the disposition of their charges in this
State because their sentence in the sending state continued to run. 137 N.J.
Super. at 309. We noted that "[w]hen there is such transfer of temporary
custody, the person already incarcerated suffers no additional restriction on his
freedom." Ibid. (citing State v. Thompson, 133 N.J. Super. 180, 187 (App. Div.
1975)). Thus, as long as the defendant's incarceration in the sending state is for
an unrelated offense and his detention in New Jersey does not "in any way
lengthen[] his stay in that institution," the defendant is "not entitled " to jail
credits. Ibid.
In Joe, which was also an IAD case, the Court stated, "the crux" of the
analysis in Council – "that confinement must result from New Jersey charges
and detainers alone to justify jail credit" – and its holding, "remain instructive
and were not abrogated by Hernandez." Joe, 228 N.J. at 136 (citations omitted).
Thus, contrary to defendant's assertions, the reasoning and holding in Council
A-3289-17T4
7
were not eroded by Hernandez and remain good law. Consequently, defendant
is not entitled to the jail credit he seeks.
The Court's decision in Carreker further supports the conclusion that
defendant is not entitled to the jail credit he seeks. Carreker was serving a term
of imprisonment in New York but was returned to New Jersey pursuant to the
IAD. Carreker, 172 N.J. at 104. After Carreker was extradited to New Jersey,
she reached a plea agreement and was sentenced to "serve a four-year term to
run concurrent with her New York sentence." Ibid. The Court held Carreker
was not entitled to jail credit under Rule 3:21-8 because her "presentence
confinement in [New Jersey] was attributable not to a New Jersey offense, but
to the fact that, under N.J.S.A. 2A:159A-5(f) of the IAD, she was required to
continue her term of incarceration under her New York sentence." Id. at 115.
Notably, in Hernandez, the Court made clear it was not abrogating Carreker.
Hernandez, 208 N.J. at 44-45.
Like the defendants in Council and Carreker, defendant was serving his
New York sentence while temporarily in New Jersey to dispose of the charges
in this case. "Under that circumstance, New Jersey jail credit does not apply."
Carreker, 172 N.J. at 115.
Affirmed.
A-3289-17T4
8
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} |
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 2, 2010
STATE OF TENNESSEE v. JAMES TODD
Direct Appeal from the Criminal Court for Shelby County
No. 07-00075 James M. Lammey, Jr., Judge
No. W2009-01475-CCA-R3-CD - Filed January 12, 2011
Defendant-Appellant, James Todd, was convicted by a Shelby County Jury of one count of
attempted first degree murder, a Class A felony, and one count of aggravated assault, a Class
C felony. Todd received a twenty-five-year sentence at thirty percent for the attempted first
degree murder conviction and a consecutive ten-year sentence at thirty-five percent for the
aggravated assault conviction, for an effective sentence of thirty-five years in the Tennessee
Department of Correction. On appeal, Todd argues that (1) the trial court erred in denying
his motion to suppress his statement; (2) the trial court erred in allowing the victim to testify
at trial that she previously identified Todd as the perpetrator at a prior hearing; (3) the trial
court erred in admitting unauthenticated and unfairly prejudicial photographs at trial; (4) the
trial court erred in adding language to the jury instruction on duress; (5) the evidence was
insufficient to support his convictions; and (6) the trial court erred in imposing an excessive
sentence. Upon review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J OHN E VERETT W ILLIAMS, JJ., joined.
Robert W. Jones, District Public Defender; J. Mark Alston, and Michael J. Johnson, Assistant
Public Defenders, Memphis, Tennessee, for the Defendant-Appellant, James Todd.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilbur, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Stacey M. McEndree, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Suppression Hearing. Robert Wilkie, a detective with the Memphis Police
Department, testified that in June 2006 he was assigned to the case involving the attack of
Paula Fowler and her three-year-old son. Detective Wilkie stated that Lieutenant Mark
Mitchell of the West Memphis Police Department notified him that Todd, the Defendant-
Appellant, was willing to talk to him regarding the case.
On August 22, 2006, Detective Wilkie drove to the West Memphis Police Department
and observed Todd standing at the front of the station smoking a cigarette. He asked if Todd
would be willing to come the Memphis Police Department so that he could ask him some
questions, and Todd agreed. Todd said that he was concerned about not having a ride home
to West Memphis, and Detective Wilkie assured him that he would have a ride back home
if he needed one. Todd rode in the front seat of Detective Wilkie’s unmarked police car back
to Memphis and was not handcuffed.
Upon arriving at the Memphis Police Department, Detective Wilkie took Todd to an
interview room on the eleventh floor. Detective Wilkie and Todd sat in silence for
approximately five or ten minutes until Lieutenant Miller entered the room. At that point,
Detective Wilkie did not immediately advise Todd of his Miranda rights. Detective Wilkie
first asked Todd if he had known Charles Fowler. Todd explained that he had known
Charles because he was a friend of Charles’s brother, Sam. He said that he did not know
what had happened to Charles’s family other than the fact that Charles had committed
suicide. Detective Wilkie testified that Todd was not under arrest and was free to leave at
that point during the interview. He further testified that Todd never stopped talking and
never informed him that he wanted to be taken home to West Memphis.
During the interview, Detective Wilkie informed Todd that Charles Fowler’s wife,
Paula Fowler, and their three-year-old son had been attacked, and his name had “come up in
the investigation.” He showed Todd some photos from the crime scene, which included
broken bricks and blood on the walls and the floor. He asked Todd to consent to give him
a DNA sample so that he could be eliminated as a suspect. Todd initially refused to give a
DNA sample. However, when Detective Chatman walked into the room with a warrant to
obtain a sample of Todd’s DNA, Todd “almost simultaneously” consented to the DNA
sample. Detective Chatman served him with the warrant, and Todd signed the consent form
to provide a DNA sample. Detective Wilkie said that they took a break, and he asked Todd
if he needed anything to eat or drink or if he needed to use the restroom. During this fifteen-
minute to twenty-minute break, Detective Wilkie said that Todd was not handcuffed or
shackled. He also said that he recalled that the door to the interview room was open.
Following the break, Detective Wilkie provided Todd with an advice of rights form
regarding his Miranda rights. Todd read this form aloud and signed it. Todd also indicated
-2-
that he understood his rights and wished to talk to the officers. Detective Wilkie and
Lieutenant Mark Miller, who was present, also signed the form. Detective Wilkie informed
Todd that they were giving him an opportunity to tell them what happened before the DNA
results came back because once his DNA linked him to the crime they would not ask him any
more questions about what happened. Todd immediately responded, “Well, how much time
do I get?” Detective Wilkie told Todd that sentencing was “lawyer stuff” that the officers
did not determine. Then Todd, who was still holding the crime scene photographs, dropped
his head and said, “Okay, I did it.” Detective Wilkie asked Todd to tell him what happened.
During his verbal statement, Todd never stated that he wanted to stop talking and never
indicated that he wanted to leave. After Todd gave the verbal statement, Lieutenant Miller
left the interview room. Detective Chatman and Detective Wilkie were present when Todd
subsequently provided his formal, written statement. The written statement, which consisted
of Detective Wilkie typing his questions and Todd’s answers, started at 12:49 p.m. and was
read and signed by Todd at 1:40 p.m. During this time period, Detective Wilkie stated that
he never made any threats or promises to Todd in exchange for his statement. In addition,
he stated that Todd never asked to speak with an attorney during the interview process.
Detective Wilkie said that Todd was not under arrest at the time that he and Todd signed the
advice of rights form; however, Todd was under arrest after he gave his statement of
admission. The first time that Todd was handcuffed or restrained in any way was after he
had signed his written statement and as the officers were preparing the charging documents.
Detective Wilkie stated that Todd never indicated that he did not understand what was
happening. In addition, he stated that Todd never told him that somebody else had threatened
to hurt him if he did not commit the offenses. Detective Wilkie said that if Todd had never
talked to him about what happened, he would have made sure that Todd was taken back to
West Memphis. Detective Wilkie said that no tape or video recording was made of Todd’s
statement in accordance with police policy.
Detective Jerry Chatman testified that he assisted Detective Wilkie in taking Todd’s
typewritten statement on August 22, 2006. He was present during Todd’s questioning and
observed Detective Wilkie typing his questions and Todd’s answers for the written statement.
Detective Chatman said that he also retrieved a search warrant to obtain a sample of Todd’s
DNA. He stated that the only people present were Todd, Detective Wilkie, and himself at
the time that the written statement was being typed. Detective Chatman said that Todd’s
statement was taken in a small interview room and that Todd was not handcuffed or
restrained in any way. He said that Todd never indicated that he did not understand his
Miranda rights prior to giving his written statement. He also said that Todd never said that
he wanted to stop talking during the written statement. He further stated that he and the other
officers never threatened or promised Todd anything during the interview process and that
Todd never asked for an attorney. Detective Chatman stated that he observed the entire
written statement and saw Todd read, initial, and sign the statement.
-3-
Todd testified that on August 22, 2006, a West Memphis police officer informed him
that a Memphis detective wished to speak with him. Todd said that he went to the West
Memphis Police Department and approximately thirty or forty minutes later Detective Wilkie
arrived and asked him if he was willing to ride over to the Memphis Police Department to
talk to him. Todd agreed, and Detective Wilkie said that he would make sure that he had a
ride back to West Memphis if he needed one. Todd said that he did not feel as though he
were under arrest at the time that he left West Memphis with Detective Wilkie.
Todd stated that when they arrived in the interview room at the Memphis Police
Department, the officers “shackled” his right leg to the floor prior to any questioning.
Detective Wilkie told him that this restraint was police procedure. Initially, he and Detective
Wilkie were in the interview room alone, and Detective Wilkie showed him some
photographs. Detective Wilkie then left to get Todd a cigarette and returned with two more
officers, including Detective Chatman. The officers asked Todd for a blood sample, which
he initially refused. However, once the officers returned with a warrant for a DNA sample,
Todd consented to provide a DNA sample.
Todd said Detective Wilkie asked him if he had known Charles Fowler, and Todd
responded that he had known Charles through Charles’s brother, Sam Fowler. Todd said that
Detective Wilkie did not advise him of his rights at that point. Todd said that other than
knowing Charles Fowler through Sam, he “didn’t know nothing.” Todd acknowledged that
he never told Detective Wilkie that he did not want to talk to him about Charles Fowler.
Todd stated that Detective Wilkie took a break and then came back in the interview
room with Detective Chatman. The detectives began asking Todd if he knew Charles
Fowler’s wife and son, and Todd responded that he did not know them. Todd said that the
detectives told him that if he would not agree with them that he would “get a hundred years
from the judge” and that his statement “could help” him regarding sentencing. Todd told the
detectives that he did not know anything about the case.
Detectives Wilkie and Chapman took a break. When they returned, they were
accompanied by another officer who obtained the DNA sample from Todd. Todd said that
the detectives never told him that he had the right to remain silent or the right to an attorney.
However, Todd admitted that he agreed to speak with Detectives Wilkie and Chapman.
Todd claimed that he did not see the advice of rights form until after he was arrested.
Also, Todd said that he was unsure whether he signed the advice of rights form before or
after he gave the formal, written statement. Todd acknowledged that he provided the words
that were in his written statement. He further acknowledged that Detective Wilkie typed his
question and then typed Todd’s answer to that question. Todd said that he was able to read
-4-
the question and his answer as Detective Wilkie typed it. He said that he did not read the
statement before he signed it because he had given “them the statement already.” Todd said
that he was not told he was under arrest until after he gave his statement. He claimed his
Miranda rights were never read aloud to him prior to him giving his statement. He said that
he never asked for a lawyer because “he never had that opportunity.” He also claimed that
he was never told that he had a right to an attorney.
Todd stated that his leg was shackled for the entire interview process except for when
he asked to use the bathroom. Detective Wilkie and Chapman and another officer took him
to the restroom and shackled his leg again when he was returned to the interview room.
Todd acknowledged that the advice of rights form informed him that he was under arrest, that
he had a right to a lawyer and that if he did not have money, an attorney would be appointed
for him, and that everything he said could be used against him in a court of law. However,
Todd claimed that he was not advised of these rights until after he had given his statement.
However, Todd acknowledged that he had been arrested before and had been advised of his
rights in those previous, unrelated cases.
At the conclusion of the hearing, the trial court found Todd’s testimony to be
“unbelievable” and “totally incredible.” It did not believe that Todd was shackled to the
floor in the interview room. The court also found that Todd gave his statement freely and
voluntarily and that it saw nothing in the proof that Todd had ever indicated that he wanted
to speak with an attorney. For all of the aforementioned reasons, the trial court refused to
suppress Todd’s statement.
Trial. Sandra Waldo testified that on June 18, 2006, she was dating Charles Fowler,
and they had a sixteen-month-old child together. Waldo stated that she and Charles 1 had
been dating for four years at that time, and they lived together at the Ridge Apartments in
West Memphis. As of June 18, 2006, Waldo, Charles Fowler, and their son had been living
at their apartment in West Memphis for approximately one month. Waldo said that she
discovered that Charles was married shortly after they started dating. However, she
continued to date him because he told her that he did not consider himself married since his
wife refused to give him a divorce.
Waldo said that she was angry at Charles the week of June 18, 2006, because he was
never home. On Saturday, June 17, 2006, the day before Father’s Day, Waldo went into her
living room and saw Charles and another man, who she had never met, sleeping on the floor
and the couch. Waldo woke Charles, took her son outside to play, and saw Charles and the
1
W e will occasionally refer to Charles Fowler, Paula Fowler, and Ashley Fowler by their first names in order
to easily distinguish them in this opinion. W e mean no disrespect by this practice.
-5-
other man leave the house about ten or fifteen minutes later. She said that the man that was
in her living room on June 17, 2006, “could be” Todd, the Defendant-Appellant in this case.
Waldo said Charles and Todd returned to the apartment for lunch. Todd was playing
a game with her son while Charles ate a sandwich. Charles introduced Waldo to Todd, and
she “assumed they were friends.” She said they stayed at the apartment for less than an hour
before leaving in Charles’s truck.
Charles returned to their apartment alone at approximately 9:00 or 10:00 p.m. that
night and immediately went to bed. She did not recall seeing Charles on Sunday, Father’s
Day. Waldo learned that Charles Fowler was deceased on Monday at around 5:00 p.m.
Anthony Gossett testified that he lived “[r]ight around the corner” from Charles
Fowler and Waldo. He said that he was aware that Charles was an “[o]fficer.” He recalled
seeing Charles and another man around noon on June 18, 2006 at Gossett’s home. He
stopped to talk with them for a few minutes, and the man with Charles Fowler asked him for
a cigarette. Gossett said that he was sure that Todd was the man with Charles that day
because he knew “him by the eyes.” Todd asked him if he could step inside his house to use
the restroom while Gossett got the cigarette for him. Gossett said he “kind of got spooked”
and told him to urinate on the side of his house. He did not want to let Todd inside his home
because he did not know him and because he was with Charles, who was a police officer.
Gossett also noticed that Charles had a large screwdriver under his shirt. He talked to the
two men for a few minutes before Charles indicated to Todd that it was time to leave. Then
Charles and Todd walked down the street towards Charles’s home.
Morgan Myers, who was eleven years old at the time of the crimes in this case,
testified that she lived on a street “right across the street” from the victims’ house on Ruskin
Street. On the afternoon of June 19, 2006, Myers stated that she was driving to the grocery
store with her parents. As they were leaving, Myers saw “a man walking up the driveway”
of Paula Fowler’s house across the street. She said that she noticed the man because “he was
wearing a jacket, and [she] figured it was a little hot outside to be wearing a jacket.” The man
“had his hands in his pocket[s], and he was looking down.” She also noticed that the man,
who was alone, was walking “rather slow” and “hesitantly.” Later that night, Myers saw
“police cars and ambulances and a crowd at the house.” Myers then identified Todd as the
man she saw walking up the driveway of Paula Fowler’s home.
Paula Fowler, one of the victims in this case, testified that she had been married to
Charles Fowler for five years, and they had a son, who was three years old in June 2006. She
said that Charles was an officer with the West Memphis Police Department. At the time of
the offense, Paula and their son were living on Ruskin Road in Memphis, and she and
-6-
Charles had been separated for four months. Paula stated that approximately one week
before Father’s Day 2006, Charles told her that he had been deployed to Iraq. She said that
she “took him to the Armory in West Memphis because [Charles] said he was going to be
deployed.” Charles left his 2003 Chevy Avalanche at her house at the time.
She saw Charles again at his mother’s house two days before Father’s Day as she was
bringing their son to spend some time with Charles Fowler’s mother. As she was driving
down the street, she saw Charles working on his brother’s car. She said she “was shocked
because we made eye contact and he . . . tried to run and hide underneath the car.” Paula said
that she was not aware that Charles was still in the country. She “called him a liar” and then
left. She explained that she was “[u]pset” and “hurt” because of his actions. When she
arrived at home, she “took a hammer[] and . . . banged the front of his truck.” She then
parked the truck “around the corner” because she did not want it in her yard. Shortly
thereafter, the truck was gone. Paula said she never saw Charles Fowler again.
On Saturday, June 18, 2006, the day before Father’s Day, Paula said that she took her
son over to his paternal grandmother’s house for her to keep him until Sunday. Paula said
that when she married Charles Fowler, she was aware that Charles had a daughter, Ashley
Fowler, from a previous relationship. However, she discovered that Charles had another son,
who was two years old, the Friday before the offense occurred. On Sunday at 4:00 p.m.,
Paula visited with Charles’s mother for about thirty minutes and then took her son to her
father’s house to celebrate Father’s Day. After seeing her father, she and her son went home.
Upon arriving at her house, Paula noticed that the latch on her side gate was “undone.” She
did not pay much attention to this because her son would sometimes play with the latch. She
picked up her son, who was asleep, and went in the front door of her home. She walked
upstairs to her son’s room and placed him on his bed. As she was headed downstairs to lock
the front door, she saw a man, who she later identified as Todd, wearing a mask and white
surgical gloves with the fingers cut out standing behind the door to her son’s room. Todd’s
mask consisted of a nylon stocking that covered “his mouth to his chin and tied in the back.”
However, the mask did not cover his nose, eyes, or forehead. She stated that she had never
seen Todd before and recalled that he was wearing a “striped white shirt” and white shorts,
white socks, and white tennis shoes. She said that it was still light outside, and she was able
to see Todd clearly because she was only a couple of feet away from him. Todd did not say
anything to her but blocked the doorway so she could not run out of the door. Paula started
screaming, and Todd “had a big landscaping stone in his hand, and he . . . hit [her] in the
back of [her] head.” She said that the stone was approximately ten inches in diameter. As
Todd was hitting her in the back of the head, Paula was “face-to-face” with him. Paula said
that Todd hit her without stopping “approximately forty times.” She was “crying and
screaming and trying to protect [her] head.” Paula said that she was very afraid that she was
going to die in front of her son. In addition, “[b]lood was dripping and running down [her]
-7-
hair – down [her] back – blood [was] just running everywhere.” At the time, Paula could see
her child “crying [and] reaching out to [her].” She said that the attack lasted for
approximately five minutes. She said that she never heard Todd’s voice, and she never heard
anyone else’s voice in her house that day, other than her son’s crying. She also never saw
or heard anyone else in the house during the attack.
Paula said that her son woke up during the attack and began to tug on Todd’s leg.
Todd stopped hitting Paula and hit her son three times in the head. After the third hit, her son
fell to the ground. After her son fell, she said that she wanted to jump on Todd’s back, but
she was too weak. Paula fell to the floor herself and said, “I’m dying – I’m dying.” Todd
did not react. She stayed on the floor with her eyes “semi closed” so that her eyes appeared
closed, but she could still see Todd in the room. Paula said that as she was pretending to be
dead, Todd kneeled down and put his hand on her back for a few seconds. Todd then picked
up the rock fragments scattered on the ground and she heard him walking down the stairs and
out the back door. Paula heard only one set of footsteps. Once she was sure Todd had left
the house, she described what happened next:
I got up. I looked over at my son. I wanted to pick him up, but I knew
I didn’t have the strength to pick him up. And so I went downstairs. And as
I was going down the stairs, I touched my hair, and I could just feel all the
blood dripping down my hair. And I just touched it and felt all of the blood
just running down . . . and I . . . ran out [of] the door[.]
Paula exited her front door, and she fell down in the grass by her mailbox. Her neighbor,
who was standing on his front porch, ran over to help her. A few minutes later, her son ran
out of the front door yelling, “Mommy, Mommy.” The child was bleeding from his head,
and he had blood on his clothes and shoes.
Following the incident, Paula woke up in the intensive care unit of the hospital. She
had a cast on her left arm, and her head was “bandaged up.” She stayed in the hospital for
four days and had follow-up care for at least six months. Once her bandages were removed,
she noticed that her head had been shaved, and she “had stitches and staples . . . all over [her]
head [in] different places.” She also had a scar on her left eye.
Paula first saw her son, who was also in the intensive care unit, two days after the
incident. She said that her son had stitches in the top, middle, and very back of his head, and
one of his eyes was bloodshot.
In June, a detective showed her a photo spread containing several individuals.
However, she did not identify anyone in that first set of photographs as the perpetrator. Paula
-8-
later discovered that Todd’s photograph was not in the first photo spread. Paula was shown
a second photo spread in August. She stated, “One [of the photographs in the second photo
spread] looked familiar, but I wasn’t quite sure at that point. One stood out more than the
other ones[,] but I wanted to be 100 percent sure that [the individual in the photograph] was
the person [who committed the crimes].” She was unsure because the person in the photo
spread had facial hair, and her attacker did not have facial hair at the time of the offense.
On November 9, 2006, Paula appeared in General Session court for a hearing related
to this case, although she did not testify. Defense counsel then objected to this line of
questioning because her testimony constituted “an in-court identification.” Once the trial
court determined that this testimony was admissible, Paula continued her testimony and
stated that she identified Todd as the perpetrator at the November 9, 2006 hearing in General
Sessions in which she did not testify. She said that no one pointed Todd out to her or
identified him in any way during the hearing. Upon seeing Todd, she felt “angry” and
“kn[e]w exactly who he was.” She stated that she knew Todd was her attacker because of
“[h]is face. His features. His eyes – especially his eyes. His nose. His chin. His facial
structure.” She acknowledged that she was not comfortable making an identification from
a two-dimensional photograph; however, she said that once she saw him in person at the
hearing, she was “[o]ne hundred percent” sure that Todd was her attacker. She later saw
Todd at another pre-trial hearing, in which she testified and identified him as her attacker.
She also identified Todd as her attacker at trial.
Jimmy Stokes testified that he lived across the street from Paula Fowler and her son
in June 2006. On the Friday night before Father’s Day, Stokes saw Paula hitting Charles
Fowler’s truck with a hammer while talking on her cell phone. Approximately forty-five
minutes later, Charles Fowler arrived and parked his truck in a “cove” near Stokes’s home.
Charles then walked away from his truck and returned alone in a “dark blue Bonneville” with
tinted windows. He looked at his truck again and appeared “real[ly] angry.” Stokes said that
Friday night was the last time that he saw Charles’s truck in his neighborhood.
Stokes next saw Charles Fowler and another man, who had never seen before, on
Saturday. He said that Charles and the man went into Paula Fowler’s house for a short time
at 10:00 or 11:00 a.m.. He said that they left for a short time and then they came back and
re-entered the house. Then they left the house a second time. Both times, Charles Fowler
and the man were riding in a Pontiac Bonneville. Stokes said that Paula Fowler and her son
were not present during these two incidents.
Stokes said that on the following day, which was Father’s Day, he was preparing to
eat dinner when he saw Paula Fowler and her son arrive at her house and go inside.
-9-
A short time later, Stokes’s wife noticed that Paula had fallen down in her front yard. Stokes
and his oldest son immediately walked over. He said Paula Fowler was “very bloody” with
blood on her head and her side. When they reached her side, she mumbled, “He hurt my
baby – can you help my baby.” Stokes said that he did not want to go into the house, but a
few minutes later Paula’s son came to the front door, and Stokes encouraged him to come
outside. He said that the child also had blood from his head to his bottom. Stokes instructed
his wife to call 911.
Dr. George Maish, III, a trauma surgeon at The Med hospital in Memphis, testified
that he was working when Paula Fowler arrived. Paula was “admitted with complex stellate
laceration to the back of her skull with part of the scalp missing.” A Cat Scan later revealed
that she also had a “subarachnoid hemorrhage,” which means that she had some bleeding on
the surface of the brain.” Dr. Maish said that Paula had a six-centimeter laceration on the
back of her head, a three-centimeter laceration nearby, and a small laceration over her eye.
She also had a “stellate” or “star shaped” laceration, which consisted of a five-centimeter
laceration with a three-centimeter laceration through it. Paula had also sustained a hand
fracture which did not require surgery. The hospital admitted Paula in critical condition.
Ashley Fowler, Charles Fowler’s seventeen-year-old daughter from a prior
relationship, testified that her father died on June 19, 2006. She stated that, at the time of her
father’s death, he was married to Paula Fowler and that he and Paula had one child, who was
three years old. Ashley stated that her father “had different lives that he lived” with different
women other than his wife. She confirmed that her father’s girlfriend at the time that he died
was Sandra Waldo and that her father and Waldo had a child together. Ashley said that she
had seen Todd with her father at her grandmother’s house and in her father’s truck. Her
father introduced Todd to her as “E.” She said that there did not seem to be any animosity
between her father and Todd. However, she said, “[I]t seem[ed] like they were . . . plotting
something maybe.” She added, “I remember one of them saying something about doing
something for me or something like that.” She stated that she saw Todd in her father’s truck
“not that long before I saw him on the news again, and that’s when I – it kind of dawned on
me that [he] was the same person.”
On June 18, 2006, Ashley Fowler stated that she had eaten at a restaurant and was
returning home when she saw police cars surrounding the house her father shared with Paula
Fowler. She said that approximately a week prior to Father’s Day, her father typed a letter
falsely claiming that he was being deployed to Iraq. After being taken to an army base, her
father showed up at her grandmother’s house. When the family said that they thought he was
leaving the country, he replied, “No, I’m not going nowhere.” She said that this was the last
time she saw her father.
-10-
Following the incident, Ashley visited Paula Fowler and Paula’s son many times. She
stated that as a result of his injuries, Paula’s son has “permanent marks” or scars on his head
where his hair will not grow.
China Taylor testified that in 2006 she was living with her boyfriend, Todd, in West
Memphis. Taylor said that Todd was not employed in June 2006, and she “was taking care
of him.” She said that Todd commonly went by his middle name, Edward. Taylor said she
knew Charles Fowler because Todd was a friend of Charles’s brother, Sam. She remembered
seeing Charles Fowler pick up Todd in a white truck. She said that although they left in the
truck, Todd walked back to her house an hour later. After the attack occurred, Taylor said
she saw Todd “pacing from Big Pete[’s] house to [her] house looking for Charles Fowler.”
She stated that Todd told her, “I’m waiting on him to come back [so that] he can pay me.”
Todd said that Fowler owed him $250 for “moving furniture or something.” Charles Fowler
did return, although he did not have the money, and he was later found dead. Todd told
Taylor that Charles had made him hit Paula Fowler with a brick and that Charles had him at
gunpoint in a closet in the child’s room. Todd claimed that Fowler told him if he did not kill
the woman and her child then Fowler was going to kill him. Todd claimed that he told Paula
Fowler, “Don’t worry about it, I’m not going to kill you.” Todd told Taylor that he could not
kill Paula Fowler because of his “conscience.”
A.J. Pounds, an officer with the Crime Scene Investigations unit of the Memphis
Police Department, testified that he was called to the Paula Fowler’s address on June 18,
2006. He took numerous photographs inside and outside the residence. As he approached
the house, he noticed a bloody towel in the front yard and blood around the front door of the
house. He went up the stairs and noticed several areas of “blood spatter and blood.” Once
he arrived at Paula’s son’s bedroom, he noticed a brick on the floor and “assorted blood
spatter.” Because one photograph could not accurately depict the child’s room, Officer
Pounds stated that exhibits 9 and 10 showed the left and right sides of the room. He
identified “blood spatter on the wall and the shade of the window next to the bed.” He said
that some of this blood was as high as six feet from the ground. In addition, there was a large
area of blood spatter at the bottom portion of the child’s bed. Exhibit 13 showed placards
set out by Officer Pounds that identified several pieces of evidence in the room. Exhibit 14
showed a close-up view of Paula Fowler’s earring on the floor. Exhibit 15 showed a piece
of brick and pieces of hair from Paula’s scalp. Exhibit 16 showed a close-up view of the
strands of hair. Exhibit 17 showed a rock and a nylon stocking. Exhibits 18 through 22
showed pieces of brick and various strands of hair. Exhibit 29 showed a nylon stocking that
was found in Paula’s backyard. Exhibit 34 showed a brick that had “dents or areas that had
been chunked out or torn away.” Exhibits 37 and 38 showed pictures of footprints in the
backyard. Exhibits 35 and 36 showed the dental stone casts of the footprints. Officer Pounds
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said that the footprints appeared to be fresh because of the moisture in the dirt. He also said
that all the footprints in the backyard appeared to come from the same pair of shoes.
Following Officer Pounds’s testimony, the trial court read a stipulation into the record
for the jury. The stipulation noted that the evidence sent for testing matched the DNA of
Paula Fowler and her son. It also stated that no other individual’s DNA, including Todd’s
DNA, was found at the scene of the crime.
Linda Littlejohn, a Special Agent for the Tennessee Bureau of Investigation, was
accepted as an expert in the area of shoeprint or footwear impression. She testified that she
examined the shoeprint impression from the scene of the crime and compared those
impressions to Todd’s shoes that had been submitted. She determined that the tread pattern
from the shoeprint impressions was “totally inconsistent” with the tread pattern on Todd’s
shoes that had been submitted. In addition, Special Agent Littlejohn was unable to determine
the size of the shoe from the impressions collected because they did not contain a complete
tread pattern.
Dabney Kirk, a Special Agent with the Tennessee Bureau of Investigation, was
accepted as an expert in the area of latent fingerprints. He said that one brick and several
pieces of bricks and a piece of plastic wrapping were submitted for fingerprint testing, but
he was not able to collect any latent fingerprints. Special Agent Kirk said that he was not
surprised that he was unable to find any prints because the brick and the brick pieces had a
surface that was very rough.
Robert Wilkie, a detective with the Memphis Police Department, testified that he was
assigned to work on this case on June 18, 2006. As a part of his investigation, he talked with
Paula Fowler and her son and contacted the crime scene investigators to ensure that they had
fully processed the scene. On June 29, 2006, Detective Wilkie showed Paula Fowler a
spreadsheet that did not contain a picture of Todd. He said that the first photo spread was
for the purpose of eliminating possible suspects. Paula informed him that her perpetrator was
not on the first photo spread. On July 24, 2006, he showed Paula a second photo spread that
contained a photo of Todd, who had been identified as a suspect through a crime stopper’s
tip. Paula looked at the second photo spread and indicated that she believed that Todd was
her attacker. However, she declined to positively identify him because the photograph was
an old picture, and was not absolutely certain that he was the perpetrator. On July 25, 2006,
Detective Wilkie showed Paula Fowler a third photo spread. During the presentation of the
third photo spread, Paula immediately focused on Todd’s picture and told him that she was
“eighty percent sure” that he was her attacker because “she was starting to get sick to her
stomach.” Detective Wilkie noted that at the time of the second and third photo spreads,
Todd had never been identified in the media as a possible suspect.
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Detective Wilkie then testified similarly to his testimony from the suppression hearing
regarding Todd’s interview and subsequent arrest. Detective Wilkie read Todd’s written
confession to the jury, which stated in pertinent part:
Q. On Sunday, June 18, 2006, Paula Fowler and [her son] were assaulted.
Are you the person responsible?
A. Yes.
....
Q. Who was with you when they were assaulted?
A. Me and Charles Fowler.
Q. Did you have any type of weapon?
A. I had a brick.
Q. Where did you get the brick?
A. Charles had it in his truck already.
Q. Did Charles Fowler have a weapon?
A. Yes.
Q. What type of weapon did Charles have?
A. He had something like a forty cal[iber] and a thirty-eight [caliber]
Derringer – you can shoot it two times.
Q. In your own words, tell what happened before, during, and after the
assault.
A. He came and picked me up from my house around 9:00 or 10:00
Sunday morning. We was just riding around at first, and he had took
me and bought me some drugs. He probably bought me a hundred
dollars worth, and I was smoking and he was drinking.
-13-
First he told me that he wanted to go to Memphis and get some clothes
out of his house because he was fixin’ to leave.
We parked behind the house and walked around to the front door – so,
he took me to her house. We went inside, and he brings the brick in.
And then when I got in the house, I got scared because he asked me to
knock his wife out, and then he was going to come in there and shoot
her. He told me that when we got in the house – and then he told me
that he wasn’t going to leave Memphis until it got done. It was like
him having the guns, and if I didn’t do it, then we were all going to die.
And we were sitting in the front room. He had the key, and when his
wife and son pulled up, he gave me the brick and the stocking. So, I
put it on, and he made me go upstairs and to go in his son’s room, and
he was going in their bedroom.
And when I got upstairs, it just so happened that they came into her
son’s room, and was in their bedroom with the two pistols.
When she put him down in the bed and turned around and I was just
standing behind the door, and she seen me, and she got to hollering, and
it scared me. And I was trying to tell her that he was in the house but
I couldn’t because he had those guns.
When she got to hollering, I went up to her, and I hit her a couple of
times. The little boy jumped up, and when I was swinging the brick, I
guess that he was trying to cover his mother up, and I hit him. But I
don’t know how many times I hit him. I just wanted Charles to see
some blood so he would know I had done it.
I ran down the stairs, and Charles still had his guns, and Charles asked
if I killed her, and I told him no.
When I turned to come out of the room, he was standing in the doorway
watching, and he said, “Come on,” so we ran. We ran to the truck. We
went out the door and ran through the backyard. We hopped one fence
and got in the truck and went back to West Memphis.
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He dropped me off, and the next thing I heard, he had killed himself.
He just said, on our way home, that the police would come looking for
him.
Q. Where were Paul[a] Fowler and [her son] [w]hen you left?
A. They were on the floor of the kid’s room.
Q. Is there anything you wish to add to your statement which will aid this
investigation?
A. I would first like to say to his wife and his son and his family members
that I was put in a situation that I really couldn’t get out of without
doing something or dying myself. I’m sorry [about] what happened to
his wife and son. I am a drug addict, and he used it against me, and I
throw myself upon the mercy of the courts and the family.
I have told the truth about everything. I only ask for your leniency
because I haven’t ever done anything like this, and I was caught up in
a situation that we would have all died if I didn’t do something. I tried
to tell her, but he would have killed us all if I did. I just want to tell
them all I am sorry.
I am not no killer or wife beater or a kid beater.
Detective Wilkie reiterated that according to Todd’s statement, Charles Fowler was
in Paula Fowler’s bedroom, rather than in the child’s closet, at the time of the attack.
Moreover, he said Todd never indicated that Charles Fowler made any actual threats to him.
Detective Wilkie said that Todd told him that Charles Fowler had guns at the time of the
offenses, but Todd “never said anything about him pointing [the gun] at him or anything like
that.” He confirmed that Todd never said he tried to prevent this crime from happening, to
call for help, or to get away. Detective Wilkie identified Todd at trial as the individual who
made the aforementioned written statement.
ANALYSIS
I. Motion to Suppress. Todd argues that his statement should have been suppressed
because it was not given knowingly, voluntarily, and intelligently. First, he claims that he
did not feel free to leave the interview room because he was shackled to the table. Second,
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he argues that his claims of innocence were rebuffed by the detectives, who inundated him
with photographs from the crime scene. Third, he asserts that no officers advised him of his
Miranda rights even though the police obtained a warrant for his DNA sample. Fourth, he
argues that the detectives threatened him with a sentence of 100 years if he did not confess.
Fifth, he asserts that he did not sign a waiver of his Miranda rights until after he had given
his statement. Sixth, he claims that he did not read his written statement which was typed
by the detectives.
In response, the State contends that the trial court properly denied the motion to
suppress Todd’s statement after determining that he had waived his right to counsel and his
right to remain silent. In addition, the State argues that the court accredited the officers’
testimony and determined that Todd’s testimony regarding his statement was “unbelievable.”
“On review, an appellate court may consider the evidence presented at the suppression
hearing as well as at trial in determining whether the trial court properly denied a pretrial
motion to suppress.” State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). In conducting
our review, it has long been settled that “[f]indings of fact made by the trial judge after an
evidentiary hearing of a motion to suppress are afforded the weight of a jury verdict, and this
court will not set aside the trial court’s judgment unless the evidence contained in the record
preponderates against his findings.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)
(quoting State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992)). In addition, the
Tennessee Supreme Court has stated:
Questions of credibility of the witnesses, the weight and value of the evidence,
and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact. The party prevailing in the trial court is entitled to
the strongest legitimate view of the evidence adduced at the suppression
hearing as well as all reasonable and legitimate inferences that may be drawn
from that evidence. So long as the greater weight of the evidence supports the
trial court’s findings, those findings shall be upheld. In other words, a trial
court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.
Id. at 23. The courts of this state have concluded that “a trial court’s determination at a
suppression hearing is presumptively correct on appeal.” State v. Saylor, 117 S.W.3d 239,
244 (Tenn. 2003) (citing State v. Harbison, 704 S.W.2d 314, 318 (Tenn. 1986)).
We conclude that the trial court properly denied the motion to suppress Todd’s
statement. The court accredited Detective Wilkie and Detective Chatman’s testimony
regarding the statement and determined that Todd’s testimony was “unbelievable” and
-16-
“totally incredible.” The court further determined that Todd gave his statement freely and
voluntarily and never indicated to the officers that he wanted to speak with an attorney during
the interview process. Accordingly, we conclude that the evidence in the record does not
preponderate against the trial court’s findings.
II. Victim’s Testimony about Prior Identification of Todd at Preliminary
Hearing. Todd argues that the trial court erred in allowing Paula Fowler to testify that she
had made a prior in-court identification of Todd as the perpetrator at an earlier hearing. He
contends that this testimony regarding the prior in-court identification violated his right to
due process. Todd further asserts that the victim’s identification during the prior hearing
could have been influenced by the fact that the positive identification took place after “two
failed photo line-ups” containing his photograph. Finally, Todd argues that Paula’s prior in-
court identification was not reliable pursuant to Neil v. Biggers, 409 U.S. 188, 199 (1972).
The State first responds by arguing that Todd waived this issue because he failed to
include this issue in his motion for new trial. In any event, the State contends that Todd has
failed to establish that the trial court’s actions amount to plain error in this instance.
Here, Paula Fowler testified at trial that she appeared in General Sessions court for
a hearing related to this case, although she did not testify. Defense counsel requested a bench
conference and objected to this line of questioning because Paula Fowler’s testimony
constituted “an in-court identification.” The court stated, “Well, prior identification doesn’t
necessarily have to be in court under oath. It can be identification at a live lineup –
identification at a seated hearing like they do a lot of times in General Sessions.” The court
further stated, “[P]rior times that [Paula Fowler had] seen [Todd] is relevant to her being able
to identify him. She saw him at the hearing, and yet she didn’t testify. Does that mean that
she can’t say she saw him at the hearing? I think that’s – I don’t think [her testimony is]
unfair. She is subject to cross-examination.” The defense asked for a recess after direct
examination so that he could determine what he wanted to ask Paula Fowler about her
identification of Todd as the perpetrator at the hearing in General Session.
We agree that Todd has waived this issue because he failed to include it in his motion
for a new trial. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented
for review shall be predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or counsel, or other action
committed or occurring during the trial of the case, or other ground upon which a new trial
is sought, unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.”). Tennessee Rule of Appellate Procedure 3(e) states, in
pertinent part, that “in all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence . . . unless the same was
-17-
specifically stated in a motion for a new trial; otherwise such issues will be treated as
waived.” Because this issue, if found to be meritorious, would result in a new trial, Todd’s
failure to include it in his motion for a new trial results in waiver. State v. Keel, 882 S.W.2d.
410, 416 (Tenn. Crim. App. 1994).
Since Todd has waived this issue, we may only review it for plain error. See T.R.A.P.
36(b) (“When necessary to do substantial justice, an appellate court may consider an error
that has affected the substantial rights of a party at any time, even though the error was not
raised in the motion for a new trial or assigned as error on appeal.”). In State v. Adkisson,
this court stated that in order for an error to be considered plain:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (citations omitted). All five factors must
be shown, and it is unnecessary to consider each factor if it is obvious that one of the factors
cannot be established. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).
Our analysis of this issue is based upon the United States Supreme Court holdings in
Simmons v. United States, 390 U.S. 377 (1968), and Neil v. Biggers, 409 U.S. 188 (1972).
In Simmons, the Court held that “convictions based on eyewitness identification at trial
following a pretrial identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.” 390 U.S. at 384. In Neil v.
Biggers, the Court established a two-part analysis which the trial court must apply to
determine the validity of a pre-trial identification. 409 U.S. at 198-99. First, the trial court
must determine whether the identification procedure was unduly suggestive. Id. at 198.
Next, if the trial court determines that the identification was unduly suggestive, it must then
consider whether, under the totality of the circumstances, the identification procedure was
nonetheless reliable. Id. at 199. In Tennessee, it is unnecessary to apply the totality of the
circumstances test described in Biggers if the identification procedure was not unduly
suggestive. See State v. Butler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).
-18-
Based on our review of the record, we conclude that there was nothing unduly
suggestive about the photo spreads containing Todd’s picture or the overall identification
process. The second photo spread contained photographs of six African American males,
all of whom had some facial hair. The third photo spread again contained photographs of six
African American males, with five out of the six containing some facial hair. The
photographs in the second and the third spreadsheets were uniform in size. Moreover,
nothing about Todd’s photograph in each of the photo spreads was “grossly dissimilar” to
the other pictures in the photo spread. Finally, and most importantly, there was nothing
unduly suggestive about Paula Fowler’s identification of Todd at the November 9, 2006
hearing in General Sessions. The evidence showed that Todd was not identified in any way
during this hearing. Paula stated that although she was not comfortable making an
identification from a photograph, she was “one hundred percent” sure that Todd was her
attacker when she saw him at this hearing. Because there was nothing unduly suggestive
about the identification process, Todd has not established plain error regarding this issue
because a clear and unequivocal rule of law was not breached. Accordingly, Todd is not
entitled to relief on this issue.
III. Admission of Photographs. Todd argues that the trial court erred in admitting
photographs that had been pre-marked outside the presence of the jury because the
photographs were not properly authenticated. He further argues that the prejudicial effect
of the challenged photographs substantially outweighed their probative value.
In response, the State initially asserts that Todd has waived this issue because he
agreed to the process of pre-marking the photographs as exhibits. Waiver notwithstanding,
the State argues that the Officer Pounds properly authenticated the photographs because he
testified that he physically took the photographs. In addition, the State asserts that Todd
failed to identify the particular photographs that he found objectionable on appeal. Finally,
the State argues that the trial court did not abuse its discretion in finding that the probative
value of the photographs substantially outweighed any prejudicial effect.
Here, during a jury-out hearing, the court requested that the State premark the
photographs that would be admitted through Officer A.J. Pounds, the crime scene officer.
The following exchange occurred:
The Court: It would really expedite matters if you could premark some
things – if there are any objectionable photographs, I guess we
ought to settle that, but –
[The State]: Okay.
-19-
The Court: If you feel like these are going to be entered into evidence,
[Defense Counsel], it would expedite matters if we would just
go ahead and premark them and agree they will be marked in as
evidence. That way it will save a lot of time walking back and
forth tendering the photograph as an exhibit and her asking
foundation questions such as, “Does it fairly and accurately
represent the scene,” on each photograph. I think it would help
out. But I’ll give you all time to look through those.
Following a lunch recess, Todd was brought into the courtroom. The parties informed
the court that the defense had objected to the photographs with the yellow stickers. Defense
counsel made a Rule 403 objection to three photographs of the child’s bedroom that depicted
pools of blood and smears of blood and argued that these photographs were cumulative. The
court ruled that the State had to present these photographs to present the room in its entirety.
The court also determined that some photographs were necessary to show the position of the
closet in the room as well as the “severity of the attack” which related to “intent” and
“premeditation” and established that this crime “could very well be an attempted murder one
rather than just a simple assault.” Accordingly, the trial court determined that the “probative
value [of these photographs] . . . substantially outweigh[ed] any unfair prejudice.”
The next photograph depicted “some blood spatter on the wall and the [blinds].”
Defense counsel objected to this photograph on the basis that it was cumulative. The State
argued that this photograph showed the “complete saturation of what appeared to be blood”
on the bed ruffle, sheets, and comforter and appeared to show that the child had just gotten
out of bed. The court ruled that the “probative value does outweigh . . . any prejudicial effect
at all.”
The next photograph showed placards identifying objects on the floor. The court
ruled that “it does point out the fact that there are objects and not just blood [spots] on the
floor, so I’m going to allow that.”
The next photograph depicted a dresser in the child’s room. The defense objected on
the basis that the picture was cumulative, since the dresser had appeared in an earlier
photograph. The court noted that the photograph showed a clump of hair that was not visible
in the other photograph. The State also argued that the photograph also showed some small
pieces of brick and an earring. The court determined that the picture was “not inflammatory”
and was not “unduly prejudicial.”
-20-
The next photographs showed placards 11 and 18, which identified pieces of broken
brick. The court ruled that “the jury should be entitled to see the scene as it was at the time”
and the photograph “goes to the severity [of the attack].”
The next photograph showed a piece of Paula Fowler’s scalp that was lost during the
attack. The court stated that “the state has the burden of proving the case beyond a
reasonable doubt, and this photograph is not inflammatory.” Ultimately, the court ruled that
the photograph was admissible.
The next photographs showed pieces of broken bricks and pieces of the victim’s scalp
that was lost during the attack. The court again ruled that “the state has the burden of
proving this case beyond a reasonable doubt” and that the pictures were “not inflammatory
in any way” The State also voluntarily withdrew three other photographs to which the
defense had objected.
The State explained to the trial court that although there were thirteen C.D.’s of
pictures made with forty to fifty pictures on each C.D., it did not develop all of these pictures.
The State added that it attempted “to avoid duplication” with the photographs that it sought
to introduce. The court took a short recess so that the photographs that it had determined
were acceptable could be premarked.
Once court resumed, the court had the following discussion with the parties:
The Court: All right. All the next exhibits have been premarked.
The photographs, I pretty much have indicated – at least
I thought I did – that as far as I’m concerned these are in
evidence. But it you wish to move them into evidence
without too much formality, you may do so for the sake
of the jury.
[The State]: Yes, Judge.
....
The Court: Okay. So, starting at [Exhibit No.] 3 [and] going all the
way through Exhibit 53. So, there’s fifty exhibits that
have been premarked?
[The State]: Yes.
-21-
....
The Court: So, any of the items that have been tagged that you find
particularly objectionable at this time?
[Defense counsel]: Your Honor, we don’t have any objections to any of the
photographs with the exception of the ones we obviously
mentioned – we’ve already done that, so we should be
able to go through these rather smoothly and quickly.
The Court: So, it’s fair to say that I can assume that all of these
things are in evidence?
[Defense counsel]: Yes, Your Honor.
....
The Court: – [S]ome of the bloody photos, you were objecting to as
being cumulative or – .
[Defense counsel]: And we will remain silent when they’re presented, and
we rely on our former objections.
The Court: Okay. Very good.
....
[Defense counsel]: Your Honor, I would ask for Your Honor to explain to
the jury what we’ve done. We’ve tried to expedite it, and
we’re agreeable to do that.
The Court: Very good.
The trial court has discretion regarding the admissibility of photographs, and a ruling
on this issue “will not be overturned on appeal except upon a clear showing of abuse of
discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). First, a photograph must
be “verified and authenticated by a witness with knowledge of the facts” before it can be
admitted into evidence. Id. Second, a photograph must be relevant to an issue that the jury
must determine before it may be admitted. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998)
(citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564 S.W.2d at 951).
-22-
However, if the photograph’s “prejudicial effect outweighs its probative value,” it should not
be admitted. See Tenn. R. Evid. 401 and 403; Banks, 564 S.W.2d at 951. A relevant
photograph “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.” See Banks,
564 S.W.2d at 951. Unfair prejudice has been defined by the Tennessee Supreme Court as
“an undue tendency to suggest decision on an improper basis, commonly, though not
necessarily an emotional one.” Id. Photographs must never be used “solely to inflame the
jury and prejudice them against the defendant.” Id.
Upon review of the record, we agree with the State that these photographs were
properly authenticated by Officer A.J. Pounds. Therefore, any argument regarding the
authenticity of the photographs is moot. In addition, there is nothing gruesome, graphic, or
horrifying about these pictures. Compare Banks, 564 S.W.2d at 950-51 (citing People v.
Jenko, 410 Ill. 478, 102 N.E.2d 783 (1951)) (“[P]hotographs of [a] corpse are admissible in
murder prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome
and horrifying character.”). Furthermore, nothing in the photographs would confuse or
mislead the jury, waste the court’s time, or be redundant. See Tenn. R. Evid. 403; see also
Banks, 564 S.W.2d at 951. After reviewing the record, we conclude that the trial court did
not abuse its discretion in admitting these photographs.
IV. Jury Instruction Regarding the Defense of Duress. Todd argues that the trial
court improperly expanded the Tennessee Supreme Court’s holding in Leach v. State, 42
S.W. 195, 197 (Tenn. 1897), to apply to non-homicide cases. He claims that since he was
charged with two “non-homicide” offenses, the additional language in the special jury
instruction was error and prejudiced him.
In response, the State contends that Todd was not entitled to the defense of duress
pursuant to Leach because Todd should have used the brick to attack Mr. Fowler, who was
“allegedly armed,” rather than Ms. Fowler, who was “unarmed and defenseless.” In addition,
it argues that the phrase added by the trial court to the jury instruction on duress did not
materially alter the instruction. Instead, the State asserts that the court’s addition of the
phrase “or where the defendant had conspired with another person to commit the crime”
follows the reasoning in Leach that a defendant may not use the defense of duress where he
places himself in a situation where he might be forced to commit a criminal offense.
Moreover, it argues that the phrase was not an incorrect statement of the law because there
are no Tennessee cases that allow a defendant to enter a conspiracy and then raise the defense
of duress. Citing Mallicoat v. State, 539 S.W.2d 54, 57 (Tenn. Crim. App. 1976), the State
contends that even if this court concludes that the addition of the phrase to the jury
-23-
instruction was improper, the error was harmless because Mr. Fowler’s threat against Todd
at the time of the offenses was not “continuous,” or “present, imminent, and impending.”
Tennessee Code Annotated section 39-11-504 defines the defense of duress:
(a) Duress is a defense to prosecution where the person or a third person is
threatened with harm that is present, imminent, impending and of such a nature
to induce a well-grounded apprehension of death or serious bodily injury if the
act is not done. The threatened harm must be continuous throughout the time
the act is being committed, and must be one from which the person cannot
withdraw in safety. Further, the desirability and urgency of avoiding the harm
must clearly outweigh the harm sought to be prevented by the law proscribing
the conduct, according to ordinary standards of reasonableness.
(b) This defense is unavailable to a person who intentionally, knowingly, or
recklessly becomes involved in a situation in which it was probable that the
person would be subjected to compulsion.
Here, following the close of proof, the State requested that the court add language to
the jury instruction regarding the defense duress based on Leach v. State, 42 S.W. 195 (Tenn.
1897). In Leach, the Tennessee Supreme Court held that duress is not a defense where the
defendant conspired with another person to commit the murder. Id. at 197. The defense
argued that the additional language was unnecessary, given that the pattern jury instruction
on duress included language that the defense of duress was “unavailable to a person who
intentionally, knowingly, recklessly becomes involved in a situation in which it was probable
that the person would be subjected to compulsion.” The court responded, “Being involved
in a situation where it’s probable a person would be subjected to compulsion is different than
stating that . . . if the defendant . . . had conspired to commit murder . . . he can’t then claim
duress.” The court determined that it was proper to have the jury instruction include the
additional language from Leach, and the defense asked that the court note its objection for
the record. The court later provided the following instruction, which included the language
from Leach as emphasized, to the pattern jury instruction regarding the defense of duress:
This defense is unavailable to a person who intentionally, knowingly,
or recklessly becomes involved in a situation in which it was probable that the
person would be subjected to compulsion or that the defendant conspired with
another person to commit the crime.
The right to trial by jury is guaranteed by the United States and Tennessee
Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 6. It follows that a defendant
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also has a right to a correct and complete charge of the law, so that each issue of fact raised
by the evidence will be submitted to the jury on proper instructions. State v. Garrison, 40
S.W.3d 426, 432 (Tenn. 2000). Accordingly, trial courts have the duty to give “a complete
charge of the law applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283,
287 (Tenn. Crim. App. 1998) (quoting Harbison, 704 S.W.2d at 319). There is no
requirement that a trial court be limited to using pattern jury instructions. State v. West, 844
S.W.2d 144, 151 (Tenn. 1992). When reviewing challenged jury instructions, we must look
at “the charge as a whole in determining whether prejudicial error has been committed.” In
re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987) (citation omitted); see also State v.
Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).
In addition, special instructions are given “to supply an omission or correct a mistake
made in the general charge, to present a material question not treated in the general charge,
or to limit, extend, eliminate, or more accurately define a proposition already submitted to
the jury.” State v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001). The refusal to grant a special
request for instruction is error only when the general charge does not fully and fairly state the
applicable law. Id. On appellate review, a jury instruction must be considered in its entirety
and read as a whole rather than in isolation. Leach, 148 S.W.3d at 58.
Todd argues that the court improperly expanding the holding in Leach to non-
homicide cases. In Leach, the defendant appealed the trial court’s refusal to provide the
following instruction to the jury: “If the proof shows that the defendant . . . entered into a
conspiracy to kill [the victim], but afterwards abandoned his purpose, and was forced to kill
him in order to save his own life, he would not be guilty of murder in the first degree.” Id.
at 197. In reviewing this issue, the Tennessee Supreme Court held:
If it be true that one of his co-conspirators was near by with a gun, and in a
threatening attitude towards the defendant, as the confession may indicate, that
would work no diminution of his offense. In such a case, if in fact a real one,
it was his duty to spare [the victim], and at the same time protect himself by
turning his weapon upon his threatening confederate. He could not with any
degree of legal palliation elect a course absolutely safe to himself, and slay an
innocent man, rather than take some risk to himself in an equal combat with
a relentless companion.
Id. In Mallicoat, 539 S.W.2d at 57, this Court upheld Leach and cited other authorities for
the same proposition. The court quoted with approval the following statement from
A MERICAN J URISPRUDENCE regarding coercion and duress:
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Though coercion does not excuse taking the life of an innocent person,
it does excuse most, if not all, other offenses. In order to constitute a defense,
the coercion or duress must be present, imminent, and impending, and of such
a nature as to induce a well-grounded apprehension of death or serious bodily
injury if the act is not done. Apprehension of loss of property, or of slight or
remote personal injury, is no excuse. Furthermore, the danger must be
continuous throughout the time when the act is being committed and must be
one from which the defendant cannot withdraw in safety. The doctrine of
coercion or duress cannot be invoked as an excuse by one who had a
reasonable opportunity to avoid doing the act without undue exposure to death
or serious bodily harm. And threat or fear of future injury is not sufficient.
Id. (quoting 21 A M. J UR. 2 D, Criminal Law § 100). The Mallicoat court also quoted with
approval the following language from the treatise C ORPUS J URIS S ECONDUM:
While the rule has no application in the case of homicide, and
compulsion cannot excuse taking the life of an innocent man . . . in general an
act which would otherwise constitute a crime may be excused on the ground
that it was done under compulsion or duress, since the necessary ingredient of
intention . . . is then lacking.
The compulsion or coercion which will excuse the commission of a
criminal act must be present, imminent, and impending, and of such a nature
as to induce a well grounded apprehension of death or serious bodily harm if
the act is not done; it must be continuous, and there must be no reasonable
opportunity to escape the compulsion without committing the crime. A threat
of future injury is not enough, particularly after danger from the threat has
passed. . . .
Id. (quoting 22 C.J.S. Criminal Law § 44).
Todd specifically argues that the additional language in the jury instruction prejudiced
him because he was being tried for two “non-homicide” charges, namely attempted first
degree murder and aggravated assault, rather than a murder charge. However, the record
contains ample evidence showing that Todd entered into a conspiracy with Charles Fowler
to kill his wife and child. The evidence showed that Todd intended to kill Paula Fowler
when he struck her in the head more than forty times with a brick. Todd’s failure to succeed
in killing Paula Fowler should in no way prevent the application of Leach. We agree with
the State that, pursuant to Leach, Todd should have used the brick to attack his co-
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conspirator, Charles Fowler, rather than attack Paula Fowler, who was innocent and
defenseless.
Moreover, Todd was not entitled to the defense of duress because Charles Fowler’s
alleged threat against him was not “continuous”, or “present, imminent, or impending.” In
the written statement to police, Todd asserted that Charles Fowler was in Paula Fowler’s
bedroom, rather than beside him in the child’s closet, at the time of the attack. Todd never
said that Charles Fowler directly threatened him if he did not commit the crimes. In addition,
Todd never indicated that Charles Fowler aimed a gun at Todd to ensure that Todd
committed the offenses in this case. Accordingly, we conclude that the language added to
the jury instruction was proper. We further conclude that, regardless of the language of the
instruction, the defense of duress was not available to Todd because Fowler’s threat was
neither “continuous” nor “present, imminent or impending.” See T.C.A. § 39-11-504;
Mallicoat, 539 S.W.2d at 57.
V. Sufficiency of the Evidence. Todd argues that the evidence is insufficient to
support his convictions. First, he claims that the evidence failed to prove that he intended
to kill the victim because the evidence showed that the victim “was knowingly left alive.”
Second, Todd argues that he was entitled to the defense of duress because the evidence
showed that Charles Fowler “would harm him and others if he did not do what he wanted
[him] to do.”
The State responds that the evidence was sufficient to support the convictions. It
argues that the evidence established that Todd acted with premeditation and intended to kill
Paula Fowler. It further argues that the jury chose to reject the defense of duress.
Todd was convicted of criminal attempt, murder in the first degree and aggravated
assault. The criminal attempt statute states:
(a) A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an
offense, if the circumstances surrounding the conduct were as the person
believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the
person’s part; or
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(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.
(b) Conduct does not constitute a substantial step under subdivision (a)(3),
unless the person’s entire course of action is corroborative of the intent to
commit the offense.
(c) It is no defense to prosecution for criminal attempt that the offense
attempted was actually committed.
T.C.A. § 39-12-101 (2006). First degree murder is the premeditated and intentional killing
of another person. Id. § 39-13-202(a)(1) (2003). Premeditation is defined as “an act done
after the exercise of reflection and judgment.” Id. § 39-13-202(d). This section further
defines premeditation:
Premeditation means that the intent to kill must have been formed prior to the
act itself. It is not necessary that the purpose to kill pre-exist in the mind of the
accused for any definite period of time. The mental state of the accused at the
time the accused allegedly decided to kill must be carefully considered in order
to determine whether the accused was sufficiently free from excitement and
passion as to be capable of premeditation.
Id. § 39-13-202(d). “‘Premeditation’ is the process of thinking about a proposed killing
before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d 530, 540-41 (Tenn.
1992) (quoting C. Torcia, Wharton’s Criminal Law § 140 (14th ed. 1979)).
The existence of premeditation is a question of fact for the jury to determine and may
be inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833,
837 (Tenn. Crim. App. 1999) (citing Brown, 836 S.W.2d at 539), perm. to appeal denied
(Tenn. June 14, 1999). “[T]he use of a deadly weapon upon an unarmed victim; the
particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence
of procurement of a weapon; preparations before the killing for concealment of the crime;
and calmness immediately after the killing” may support the existence of premeditation.
Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-42; West, 844 S.W.2d at 148).
This Court has also noted that the jury may infer premeditation from any planning activity
by the defendant before the killing, evidence concerning the defendant’s motive, and the
nature of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation
omitted).
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An individual commits the offense of aggravated assault when, as relevant in this
case, he “[i]ntentionally or knowingly commits an assault as defined in § 39-13-101” and
“[u]ses or displays a deadly weapon[.]” T.C.A. § 39-13-102(a)(1)(B) (2006). The assault
statute states:
(a) A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent
bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a
reasonable person would regard the contact as extremely offensive or
provocative.
Id. § 39-132-101(a) (2006).
The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from the evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.”
A verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt; therefore, a defendant on appeal has the burden of showing that the
evidence is insufficient to support the jury’s verdict. State v. Thacker, 164 S.W.3d 208, 221
(Tenn. 2005) (citing State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in the State’s favor. Bland, 958 S.W.2d
at 659 (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Issues regarding the
credibility of witnesses, the weight and value of the evidence, and all factual issues raised
by the evidence are resolved by the jury as the trier of fact, and this court does not re-weigh
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or re-evaluate the evidence. Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),
superseded by statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218
(Tenn. 1993)). Guilt may be found beyond a reasonable doubt in a case where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)), perm. to appeal denied
(Tenn. Nov. 13, 1990).
“The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,
at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).
The State has the burden of proving “the identity of the defendant as the perpetrator beyond
a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.
1995)). The identity of the defendant as the perpetrator may be established by direct
evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at
793. “The credible testimony of one identification witness is sufficient to support a
conviction if the witness viewed the accused under such circumstances as would permit a
positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App.
1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)), perm. to
appeal denied (Tenn. Dec. 27, 1999). This court has stated that the identification of the
defendant as the perpetrator is a question of fact for the jury after considering all the relevant
proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn.
Crim. App. 1982), perm. to appeal denied (Tenn. June 21, 1982)). In addition, as relevant
here, this court has held that “the testimony of a victim, by itself, is sufficient to support a
conviction.” Id. (citing State v Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)).
The evidence was more than sufficient to support Todd’s convictions for attempted
first degree murder and aggravated assault. Todd signed a written statement confessing to
the crimes in this case. Paula Fowler identified him as the perpetrator at an earlier hearing
and at trial. She also testified that Todd hit her forty times in the head with a brick within
a span of five minutes and hit her son three times in the head with this brick. Both Paula
Fowler and Morgan Myers placed Todd alone at the scene of the crimes. Ashley Fowler
testified that her father and Todd were “plotting something[.]” Although Todd presented a
defense of duress at trial, the jury was free to determine that he was not entitled to this
defense. We will not “reweigh or reevaluate the evidence.” Bland, 958 S.W.2d at 659.
Accordingly, Todd is not entitled to relief on this issue.
VI. Sentence. Todd argues that the trial court imposed an excessive sentence.
Specifically, he challenges the length of his sentence and the imposition of consecutive
sentences. The State responds that Todd’s sentence was proper.
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On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (1997). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant has the burden of showing the
impropriety of the sentence. Sentencing Comm’n Comments, T.C.A. § 40-35-401(d) (1997).
This means that if the trial court followed the statutory sentencing procedure, made adequate
findings of fact that are supported by the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, this court may not disturb the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In a case where
“the trial court applies inappropriate mitigating and/or enhancement factors or otherwise fails
to follow the Sentencing Act, the presumption of correctness fails.” Carter, 254 S.W.3d at
345 (citing State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), perm. to appeal
denied (Tenn. March 22, 1993)). Because it appears that the trial court properly applied the
enhancement factors, because no mitigating factors applied, and because the court followed
the purposes and principles of the Sentencing Act, our review is de novo with a presumption
of correctness. See id. at 345-46; Ashby, 823 S.W.2d at 169.
A trial court, when sentencing a defendant, must consider the following:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
(7)Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.
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T.C.A. § 40-35-210(b) (2006).
A. Length of Sentence. Todd contends that the trial court erred in applying
enhancement factor (5), “[t]he defendant treated, or allowed a victim to be treated, with
exceptional cruelty during the commission of the offense[,]” and enhancement factor (6),
“[t]he personal injuries inflicted upon . . . the victim was particularly great[.]” See T.C.A.
§ 40-35-114(5), (6) (2006). Citing State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001), he
argues that the trial court erred in applying the exceptional cruelty factor to his two
convictions because the court “seemed to focus upon the longstanding impact of the crime
on the victims rather than which acts of the defendant were over and above what is required
to establish the offenses of [attempted] premeditated murder and aggravated assault.” In
addition, citing State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994), he argues that the trial
court erred in applying the particularly great personal injuries factor because there was no
proof of injuries beyond that necessary to commit the offense. In response, the State argues
that Todd’s criminal history alone was sufficient to sentence him to the maximum sentence
for his conviction.
Here, the trial court found that the following enhancement factors were applicable
under Tennessee Code Annotated section 40-35-114 in counts one and two of the indictment:
(1) The defendant has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range;
(2) The defendant was a leader in the commission of an offense involving two
(2) or more criminal actors;
....
(5) The defendant treated, or allowed a victim to be treated, with exceptional
cruelty during the commission of the offense;
(6) The personal injuries inflicted upon, or the amount of damage to property
sustained by or taken from, the victim was particularly great;
....
(8) The defendant, before trial or sentencing, failed to comply with the
conditions of a sentence involving release into the community[.]
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T.C.A. § 40-35-114 (1), (2), (5), (6), (8) (2006).
The trial court found that the following enhancement factor was applicable to count
one:
(9) The defendant possessed or employed a firearm, explosive device, or other
deadly weapon during the commission of the offense[.]
Id. § 40-35-114(9) (2006).
The trial court found that the following enhancement factor was applicable to count
two:
(4) A victim of the offense was particularly vulnerable because of age or
physical or mental disability[.]
Id. § 40-35-114(4) (2006). The defense did not present any mitigating factors for the trial
court’s consideration.
Although the trial court applied the aforementioned enhancement factors, Todd only
challenged the court’s application of factors (5) and (6). Regarding factor (1), Todd’s
“previous history of criminal convictions or criminal behavior,” the State entered certified
copies of Todd’s convictions in Arkansas, which included felony convictions for aggravated
assault and theft. Todd also had a pending felony case in which he was charged with
possession of drugs with intent to sell and had posted bond on this case one month prior to
committing the offenses in this case. Todd also had misdemeanor convictions for possession
of drugs and disorderly conduct.
Regarding factor (5), that Todd “treated, or allowed a victim to be treated, with
exceptional cruelty during the commission of the offense,” the trial court noted that “an
element of the offense [is not] that you get beat with a brick countless times to where you
can’t even count the number of blows.” The court added the following:
[Todd] rendered all of these blows [to Paula Fowler] and . . . rendered blows
to a three year old, both of whom . . . have survived this and are going to have
to live with this for the rest of their lives. The exceptional cruelty is mind
boggling. It’s beyond description.
The poor boy. There’s not even words that can describe how cruel this
was. And particularly when the defendant reached over to see if the victim
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was breathing and how frightening and appalling. It must have been ungodly
for the victim of the criminal attempt first degree murder to know that he is –
that there might be some more whacks coming because he might have detected
I am breathing. I know she testified that she faked like she was dead. And it
was luck for her. If she had kept up a struggle she might not have survived
this.
And I think that Number 5, I put tremendous amount of weight on that.
This was cruel. I’ve never seen since I’ve been here anything more cruel that
this.
The Tennessee Supreme Court has held that evidence supporting the application of the
“exceptional cruelty” enhancement factor must “‘denote[] the infliction of pain or suffering
for its own sake or from the gratification derived therefrom, and not merely pain or suffering
inflicted as the means of accomplishing the crime charged.’” Arnett, 49 S.W.3d at 258
(quoting State v. Haynes, No. W1999-01485-CCA-R3-CD, 2000 WL 298744, at *3 (Tenn.
Crim. App., at Jackson, Mar. 14, 2000)). We conclude that the trial court properly applied
factor (5) in this case.
Regarding factor (6), that “[t]he personal injuries inflicted upon, or the amount of
damage to property sustained by or taken from, the victim was particularly great,” the trial
court stated:
I think the personal injuries upon both of them – I mean, the [conviction] for
criminal attempt first degree murder especially – I mean, it could have been
one gunshot wound but it’s not an element of the offense. I think the personal
injuries as far as Count 1 are great. I saw the damage that was done and also
the suffering that still goes on. I believe there will be no repairing this.
You can live. You will exist. But, you know, every[]time you come
home at night . . . you’d have to worry about whether or not the boogy man is
in the closet. That’s horrible. So I think – I think it does not apply to
aggravated assault because I think it’s too closely related to the elements of the
offense but criminal attempt first degree murder I believe Number 6 applied.
Later, the trial court reconsidered and applied enhancement factor (6) to the aggravated
assault conviction because count two of the indictment charged Todd with committing an
assault through the use or display of a deadly weapon rather than committing an assault that
caused serious bodily injury to another. See id. § 39-13-102(a)(1)(A), (B) (2006). This court
has previously held that “[t]he term ‘personal injury’ [as stated in enhancement factor (6)]
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is broad enough to embrace the severe emotional injuries and the psychological scaring that
the victim has suffered and will continue to suffer as a result of the appellant's actions.”
State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994). We also conclude that the
trial court properly applied factor (6) in this case.
After applying the aforementioned enhancement factors, the trial court imposed a
twenty-five-year sentence for the attempted first degree murder conviction and a consecutive
ten-year sentence for the aggravated assault conviction. The trial court stated although it
sentenced Todd to the maximum sentence in his range, he felt that the sentences were not
lengthy enough given the severity of the crimes.
Because the offenses in this case occurred on June 18, 2006, the 2005 amended
sentencing act governs this case. Under the amended sentencing act, “the trial court ‘shall
consider, but is not bound by’ an ‘advisory sentencing guideline’ that suggests an adjustment
to the defendant’s sentence upon the presence or absence of mitigating and enhancement
factors.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008) (quoting T.C.A. § 40-35-210(c)
(2006)). Moreover, under the new law “[a]n appellate court is . . . bound by a trial court’s
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346. The Tennessee Supreme Court explained the impact of the
2005 amended sentencing act:
The amended statute no longer imposes a presumptive sentence.
Rather, the trial court is free to select any sentence within the applicable range
so long as the length of the sentence is “consistent with the purposes and
principles of [the Sentencing Act].” Id. § 40-35-210(d). Those purposes and
principles include “the imposition of a sentence justly deserved in relation to
the seriousness of the offense,” id. § 40-35-102(1), a punishment sufficient “to
prevent crime and promote respect for the law,” id. § 40-35-102(3), and
consideration of a defendant’s “potential or lack of potential for . . .
rehabilitation,” id. § 40-35-103(5).
Id. at 343 (internal footnote omitted). The court also emphasized the broad discretion the
trial court has in sentencing a defendant under this act:
[A] trial court’s weighing of various mitigating and enhancement factors has
been left to the trial court’s sound discretion. Since the Sentencing Act has
been revised to render these factors merely advisory, that discretion has been
broadened. Thus, even if a trial court recognizes and enunciates several
applicable enhancement factors, it does not abuse its discretion if it does not
-35-
increase the sentence beyond the minimum on the basis of those factors.
Similarly, if the trial court recognizes and enunciates several applicable
mitigating factors, it does not abuse its discretion if it does not reduce the
sentence from the maximum on the basis of those factors. The appellate courts
are therefore left with a narrower set of circumstances in which they might find
that a trial court has abused its discretion in setting the length of a defendant’s
sentence.
Id. at 345-46.
We initially note that the defendant has the burden of showing the impropriety of the
sentence. See T.C.A. § 40-35-401(d) (2006), Sentencing Comm’n Comments. Despite
Todd’s arguments to the contrary, we conclude that the trial court properly applied
enhancement factors (5) and (6) in this case. Upon review, we conclude that the record fully
supports the trial court’s imposition of a twenty-five year sentence for the attempted first
degree murder conviction and a ten-year sentence for the aggravated assault conviction.
Accordingly, Todd is not entitled to relief on this issue.
B. Consecutive Sentence. Todd also argues that the trial court erred in imposing a
consecutive sentence. First, he asserts that the trial court erroneously applied the factor that
he was a professional criminal who has knowingly devoted his life to criminal acts as a major
source of livelihood because no proof was presented “reflecting the amount of money that
the defendant derived from prior criminal offenses.” See T.C.A. § 40-35-115(b)(1) (2006).
Second, he argues that the trial court erroneously applied the factor that Todd was a
dangerous offender. See id. § 40-35-115(b)(4) (2006). He contends that the trial court
applied the dangerous offender factor primarily based on the circumstances surrounding the
offense and further argues that an inherently dangerous crime does not justify consecutive
sentences in light of the more severe penalties for these crimes. In response, the State
contends that the trial court properly applied these factors in sentencing Todd to a
consecutive sentence.
Where a defendant is convicted of one or more offenses, the trial court has discretion
to decide whether the sentences shall be served concurrently or consecutively. Id. § 40-35-
115(a) (2006). A trial court may order multiple offenses to be served consecutively if it finds
by a preponderance of the evidence that a defendant fits into at least one of the seven
categories in section 40-35-115(b). An order of consecutive sentencing must be “justly
deserved in relation to the seriousness of the offense.” Id. § 40-35-102(1). In addition, the
length of a consecutive sentence must be “no greater than that deserved for the offense
committed.” Id. § 40-35-103(2).
-36-
Here, the trial court determined that consecutive sentences were proper based on the
following factors:
(1) The defendant is a professional criminal who has knowingly devoted the
defendant’s life to criminal acts as a major source of livelihood;
(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high;
Id. § 40-35-115(b)(1), (4) (2006).
Here, the trial court, in applying the professional criminal factor, found that Todd
would not have agreed to kill a woman and her child unless he was “[de]void of any
consci[ence].” In addition, the presentence report establishes that Todd had a poor history
of employment. Moreover, Todd’s criminal record indicated that his only source of income,
especially at the time of the offenses in this case, was from criminal acts. Accordingly, we
conclude that the trial court properly applied this factor.
Regarding the dangerous offender factor, the court also determined that Todd was
“about as dangerous a man as there has ever been.” The court further stated, “[T]he main
reason why I think it has to be consecutive is just based upon the facts of this case alone, the
circumstances surrounding the commission of the offense are particularly aggravated.”
Finally the court made the following statement regarding this factor:
I think [Todd] is a dangerous offender. Based not only on the facts of this case
but also he’s shown that to be true in his life as well as in his record and his
previous dealings with the law. And I think it’s necessary to protect society
from his unwillingness to lead a productive life. And definitely anyone that
would do this would be anti-social. And he’s leading an anti-social life-style.
We conclude that the trial court properly ordered consecutive sentencing regarding
the dangerous offender factor as well. Regarding this subsection, the Tennessee Supreme
Court has stated:
Proof that an offender’s behavior indicated little or no regard for human life
and no hesitation about committing a crime in which the risk to human life was
high, is proof that the offender is a dangerous offender, but it may not be
sufficient to sustain consecutive sentences. Every offender convicted of two
or more dangerous crimes is not a dangerous offender subject to consecutive
-37-
sentences; consequently, the provisions of [s]ection 40-35-115 cannot be read
in isolation from the other provisions of the Act. The proof must also establish
that the terms imposed are reasonably related to the severity of the offenses
committed and are necessary in order to protect the public from further
criminal acts by the offender.
State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (quoting State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn.1995)) (emphasis added). Unlike the other six subsections, the trial court
must make additional factual findings for the “dangerous offender” factor because it is “the
most subjective and hardest to apply.” Id. (quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn.
1999)).
The record shows that the trial court properly applied the professional criminal and
dangerous offender factors in ordering consecutive sentencing. Accordingly, we conclude
that the trial court did not err in ordering consecutive sentencing in this case.
CONCLUSION
The judgments of the trial court are affirmed.
_________________________________
CAMILLE R. McMULLEN, JUDGE
-38-
| {
"pile_set_name": "FreeLaw"
} |
431 F.Supp.2d 367 (2006)
BEATIE AND OSBORN LLP, Plaintiff,
v.
PATRIOT SCIENTIFIC CORPORATION, Jeffrey Wallin and Lowell Giffhorn, Defendants.
No. 05 Civ. 6425(PKL).
United States District Court, S.D. New York.
May 9, 2006.
*368 *369 *370 *371 *372 *373 *374 *375 Russel H. Beatie, Matthew P. Heiskell, Beatie and Osborn LLP, New York, New York, for Plaintiff.
Jared B. Stamell, Stamell & Schager, LLP, New York, New York, Charles T. Hodge, Post, Kirby, Noonan & Sweat LLP, San Diego, California, for Defendants.
OPINION AND ORDER
LEISURE, District Judge.
Plaintiff Beatie and Osborn, LLP ("B & O"), a New York law firm, brings this suit to collect unpaid fees from its former client, Patriot Scientific Corporation ("Patriot"), a California technology company. B & O filed the complaint against Patriot and individual defendants Jeffrey Wallin and Lowell Giffhorn in the Supreme Court for the State of New York, County of New York. B & O sues Patriot for breach of a retainer agreement, breach of a subsequent fee agreement, and damages under theories of quantum meruit and unjust enrichment. B & O also sues Wallin and Giffhorn for tortious interference with the retainer agreement and the fee agreement. Defendants removed the action to this Court based on diversity jurisdiction and subsequently moved to dismiss on various grounds or, in the alternative, transfer the case to the Southern District of California. Meanwhile, plaintiff has moved to remand this action to state court on the ground that defendants failed to follow the proper removal procedure. For the reasons set forth below, plaintiffs motion is denied, and defendants' motions are granted in part and denied in part.
BACKGROUND
B & O is a limited liability partnership organized under the laws of New York, and maintains its principal place of business on the island of Manhattan. (Compl.ถ 3.) Patriot is incorporated under the laws of Delaware and maintains its principal place of business in San Diego, California. (Compl.ถ 6.) Patriot is engaged *376 in the business of developing, licensing, and owning intellectual property, integrated circuits, and systems level engineering. (Compl.ถ 7.) Wallin is a California resident `who, during the relevant time, was the chief executive officer of Patriot. (Compl.ถ 8.) Giffhorn, also a California resident, was the chief financial officer and a member of the board of directors of Patriot during the relevant time. (Compl.ถ 9.)
One of Patriot's key assets is the patent rights to a microprocessor technology known as a "High Performance Microprocessor Having Variable Speed System Clock" (the "'336 Patent"). (Compl.ถ 7.) In 2002, recently having begun a program of licensing and infringement litigation to respond to the unauthorized use of Patriot's patented technology (Compl.ถ 14), Patriot, through various representatives, approached Russel H. Beatie, a member of B & O, about retaining the firm to help Patriot negotiate license agreements and prosecute infringement claims based on Patriot's portfolio of patents, including the '336 Patent (Compl.ถ 15). In the summer of 2002, a Patriot board member[1] asked Beatie if B & O would act as lead counsel for Patriot in its licensing and infringement litigation program. (Compl.ถ 18.) Beatie agreed on the conditions (1) that he could associate John E. Lynch, Esq., a patent specialist and personal friend of Beatie's, as co-counsel; and (2) that he and Lynch could investigate the merits of the litigation program thoroughly. (Compl.ถ 19.) After a number of telephone conferences in which Wallin and Beatie discussed terms and conditions, Patriot sent B & O the final terms for a retainer agreement on October 1, 2002. B & O and Patriot entered into the retainer agreement (the "Retainer Agreement") on November 1, 2002. (Compl.ถ 34.) The Retainer Agreement provided that:
This agreement and related matters not covered by the specifics of this agreement shall be governed by the laws of the State of New York, disputes shall be resolved in the federal or state courts of the City and State of New York, and the parties to this agreement consent to jurisdiction and venue in the City and State of New York.
(Compl. Ex. A ถ 7.) Around the time the Retainer Agreement was executed, Lynch and Beatie interviewed Patriot's former patent counsel for the company's invention and patent prosecution process, Willis E. Higgins, Esq., who at that time was practicing in retirement in Maine.[2] (Compl.ถ 27.) On February 27, 2004, Patriot and B & O entered into an agreement (the "Fee Agreement") specifying the manner by which Patriot was to pay for fees and expenses related to the patent litigation undertaken by B & O. (Compl.ถ 43.)
As Patriot's lead counsel, B & O filed five actions for patent infringement against alleged infringing manufacturers. (Compl. ถ 46; Beattie Aff. ถ 19.) B & O also defended Patriot in a related declaratory judgment action in the Northern District of California. (Beattie Aff. ถ 20.) In addition, in order to pursue the infringement actions, B & O filed a separate action in the Northern District of California (the "Inventorship Action") against Charles H. Moore, a co-inventor of Patriot's technology, and Moore's successors-in-interest for declaratory judgment on inventorship and *377 ownership of the '336 Patent and its family of patents. (Compl.ถ 46.)
B & O claims that it was forced to file the Inventorship Action subsequent to the infringement actions because Patriot had misrepresented key facts regarding the '336 Patent during the negotiation of the Retainer Agreement. According to B & O, prior to executing the Retainer Agreement in November 2002, Beatie and Lynch had insisted that Wallin and Giffhorn arrange meetings with Moore and Russell H. Fish, III, the co-inventor of Patriot's technology, with the goal of enlisting their cooperation and assistance with Patriot's licensing and infringement program. (Compl.ถ 29.) B & O alleges that Wallin and Giffhorn declined to arrange any such meetings, instead assuring Beatie and Lynch (1) that Moore would cooperate and would support Patriot's program and (2) that Fish's cooperation was unnecessary because Patriot owned all the rights that Fish had ever had in the patents in question. (Compl.ถถ 30-31.) Wallin and Giffhorn assured Beatie and Lynch that they had resolved all inventorship issues in favor of Patriot and that Patriot had clear title to the patents in its portfolio, including the '336 Patent. (Compl.ถ 33.) However, in December 2002, Wallin and Giffhorn revealed that inventorship and ownership of the '336 Patent had been recorded inaccurately in the Patent and Trademark Office, and that Moore, through an agent, claimed an undivided one-half interest in all the patents in Patriot's portfolio, including the '336 Patent. (Compl.ถ 36.) A review by B & O showed that inventorship of other patents in Patriot's portfolio was also unresolved. (Compl.ถ 39.)
The relationship between B & O and Patriot ultimately fell apart. During discovery in the Inventorship Action, Patriot moved to disqualify B & O on the ground that Beatie and Lynch had breached Moore's attorney-client privilege when Lynch interviewed Higgins. (Compl.ถ 62.) The Honorable Jeremy D. Fogel, U.S. District Judge for the Northern District of California, barred Higgins' testimony and disqualified B & O. (Compl.ถ 63.) B & O offered to prepare and file, free of charge, a mandamus petition appealing the district court's decision. (Compl.ถ 64.) Wallin and Giffhorn refused to authorize B & O to file the petition, giving no reason for their refusal. (Compl.ถ 65.) B & O alleges that Wallin and Giffhorn refused to seek review because they wanted to tell Patriot's board of directors that, with the disqualification of B & O in place, Patriot had no obligation to pay B & O. (Compl.ถ 67.)
On June 7, 2005, Patriot announced that it had settled the Inventorship Action. (Compl.ถ 70.) Under the terms of the settlement (the "Settlement"), Patriot granted the defendants in that action responsibility for the commercialization and licensing of the patent portfolio, from which program Patriot will receive payments in addition to sharing revenue. (Compl.ถถ 71-72.) In addition, Patriot entered into a license agreement (the "License Agreement") with semiconductor company Advanced Micro Devices, Inc. on February 21, 2005. (Compl.ถ 57.) B & O now claims that, pursuant to the terms of the Retainer Agreement, it is entitled to a share of the payments Patriot receives under the Settlement and the Licensing Agreement. (Compl.ถถ 74-83.)
DISCUSSION
I. Subject Matter Jurisdiction
Patriot argues that the Court lacks subject matter jurisdiction because B & O is bound by the California Mandatory Fee Arbitration Act ("MFAA"), which requires that an attorney provide notice to a client of its right to arbitrate fee disputes before an attorney may sue the client for fees in *378 court.[3] (See Mem. Law Supp. Def. Patriot's Mot. Dismiss 7-8.) B & O, however, argues that its claims under the Retainer Agreement are governed by New York law, not California law and the MFAA, and that therefore it had no obligation to provide notice. (See Mem. Law Opp'n Def. Patriot's Mot. Dismiss 5.)
A. Choice of Law
A federal court sitting in diversity applies the conflict-of-law rules of the forum state. Fed.R.Evid. 501; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In cases arising from contracts that include a choice-of-law clause, New York courts follow the test set forth in the Restatement (Second) of Conflicts of Laws.[4] Accordingly, New York courts may refuse to enforce a choice-of-law clause only where (1) the parties' choice has no reasonable basis or (2) application of the chosen law would violate a fundamental public policy of another jurisdiction with materially greater interests in the dispute. See Radioactive, J.V. v. Manson, 153 F.Supp.2d 462, 469-70 (S.D.N.Y.2001) (citing Lehman Bros. Commercial Corp. v. Minmetals Int'l Non-Ferrous Metals Trading Co., 179 F.Supp.2d 118, 136 (S.D.N.Y.2000) (Keenan, J.)); see also Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 556 (2d Cir.2000) ("New York law is clear in cases involving a contract with an express choice-of-law provision: Absent fraud or violation of public policy, a court is to apply the law selected in the contract as long as the state selected has sufficient contacts with the transaction."). Here, the parties' choice of New York law clearly has a reasonable basis: B & O is a New York limited liability partnership, is engaged in the practice of law in New York, and maintains its principal place of business in New York. (Compl.ถ 3.) Therefore, the Court is left with the question of whether the application of New York law would violate a fundamental public policy of another jurisdiction with materially greater interests in the dispute. This inquiry involves two steps: The Court first must determine whether California law would govern this dispute in the absence of the parties' contractual choice-of-law provision; and, if so, the Court must decide whether the application of New York law would violate a fundamental public policy of California. See SG Cowen Sec. Corp. v. Messih, No. 00 Civ. 3228, 2000 WL 633434, at *2-4 (S.D.N.Y. May 17, 2000) ("The chosen law *379 should not be applied without regard for the interests of the state which would be the state of the applicable law with respect to the particular issue involved in the absence of an effective choice by the parties." (quoting S. Int'l Sales Co. v. Potter & Brumfield Div. of AMF Inc., 410 F.Supp. 1339, 1341-42 (S.D.N.Y.1976) (internal quotation marks omitted))); see also Restatement (Second) Conflict of Laws ง 187 cmt. g (1971) (same).
In contract cases, New York courts apply a "center of gravity" or "grouping of contacts" approach to decide choice-of-law questions. See Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d Cir.1997) (citing Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 283-84 (1963)). Using this approach, "courts may consider a spectrum of significant contacts, including the place of contracting, the places of negotiation and performance, the location of the subject matter, and the domicile or place of business of the contracting parties." Id. (citing In re Allstate Ins. Co. & Stolarz, 81 N.Y.2d 219, 597 N.Y.S.2d 904, 613 N.E.2d 936, 940 (1993)). In the instant action, while contacts exist with both New York and California, California contacts predominate.[5] The Retainer Agreement was negotiated in both New York and California, but the bulk of B & O's representation of Patriot took place in California courts. Three of the five patent infringement actions that first were filed in New York district courts were transferred promptly and consolidated in California, where they were litigated. B & O defended Patriot in a declaratory relief action that Intel Corporation filed and litigated in California, and the Inventorship Action, in which B & O ultimately was disqualified, was filed and litigated in California.
Having found that California law would govern this dispute in the absence of the Retainer Agreement's choice-of-law provision, the Court must address whether applying New York law in accordance with that provision would violate a fundamental public policy of California. The Court answers this question in the negative.
Citing Aguilar v. Lerner, 32 Cal.4th 974, 12 Cal.Rptr.3d 287, 88 P.3d 24 (2004), defendants *380 argue that the MFAA is "a firmly entrenched matter of California public policy designed to foster prompt and expeditious resolution of attorney fee disputes." (Mem. Law Supp. Def. Patriot's Mot. Dismiss 8.) Aguilar involved a fee dispute between an attorney and a client who had entered into a retainer agreement that, unlike the agreement in this case, contained an arbitration clause pursuant to which the parties agreed to submit any disputes arising out of the client's legal representation to binding arbitration. Such an arbitration clause normally would be enforceable under the California Arbitration Act[6] ("CAA"). In Aguilar, the Supreme Court of California observed, as it had observed many times previously, that California has a "strong public policy" in favor of arbitration. However, in making this point, the Aguilar court was discussing the CAA, not the MFAA. The CAA regulates arbitration agreements. As one California court has noted, "[t]he fundamental premise of the [CAA] is that `[a] written agreement to submit [either a present or a future controversy] to arbitration . . . is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.'" Vandenberg v. Super. Ct., 21 Cal.4th 815, 88 Cal. Rptr.2d 366, 982 P.2d 229, 238 (1999) (quoting Cal.Civ.Proc.Code ง 1281 (West 1982)). The CAA establishes procedures for the enforcement of arbitration agreements, C al. Civ.Proc. C ode งง 1281.2-1281.96; sets forth default rules for the conduct of arbitration proceedings, id งง 1282-1284.3; describes the circumstances under which arbitration awards may be vacated, corrected, confirmed, and enforced, id. งง 1285-1288.8; and specifies the procedures for judicial proceedings relating to arbitration matters, id. งง 1290-1294.2. See Vandenberg, 88 Cal.Rptr.2d 366, 982 P.2d at 238 (describing the statutory scheme under the CAA). As the Aguilar court noted, the CAA "represents a comprehensive statutory scheme regulating private arbitration in this state. Through this detailed statutory scheme, the Legislature has expressed a `strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.'" Aguilar v. Lerner, 32 Cal.4th 974, 12 Cal.Rptr.3d 287, 88 P.3d 24, 28 (2004) (quoting Moncharsh v. Heily & Blase, 3 Cal.4th 1, 10 Cal.Rptr.2d 183, 832 P.2d 899, 902 (1992)); see also Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street, 35 Cal.3d 312, 197 Cal.Rptr. 581, 673 P.2d 251, 257 (1983) (same); Madden v. Kaiser Foundation Hospitals, 17 Cal.3d 699, 131 Cal. Rptr. 882, 552 P.2d 1178, 1182 (1976) ("Arbitrations are now usually covered by statutory law, as they are in California. Such statutes evidence a strong public policy in favor of arbitrations, which policy has frequently been approved and enforced by the courts.").
The MFAA is an entirely distinct statutory scheme from the CAA. Enacted in 1978 following a finding by the American Bar Association that disputes over legal fees were the most serious problem in the relationship between attorneys and their clients, its purpose is to provide a simple and efficient structure within which attorneys and clients could resolve disputes over legal fees. See James P. Hargarten, Fine Tuning California's Mandatory Attorney Fee Arbitration Statute, 16 U.S.F. L.Rev. 411, 413 (1982). The MFAA is narrowly drawn: While nearly any civil dispute can be arbitrated under the CAA, the MFAA only applies to disputes concerning attorney "fees, costs, or both," Cal. Bus. & Prof.Code ง 6200(a) (West 2003), and explicitly does not apply to "[c]laims for affirmative relief against the attorney *381 for damages or otherwise based upon alleged malpractice or professional misconduct," id. ง 6200(b)(2). Unlike under the CAA, the obligation to arbitrate under the MFAA does not flow from the parties' agreement, but rather from the statute itself. The MFAA provides that, at the option of the client, attorneys must submit to arbitration any fee dispute: "Unless the client has agreed in writing to arbitration under this article of all disputes concerning fees, costs, or both, arbitration under this article shall be voluntary for a client and shall be mandatory for an attorney if commenced by a client." Id. ง 6200(c). Whereas arbitration awards rendered pursuant to the CAA are generally binding, an arbitration under the MFAA does not bind the parties,[7] either of whom has the right to seek a trial de novo following an arbitration. Id. ง 6204(a).
While the Court acknowledges California's strong public policy of enforcing arbitration agreements, it cannot conclude that "the prompt and expeditious resolution of attorney fee disputes" in the absence of an arbitration agreement constitutes a fundamental public policy of California. Defendants point to no authority establishing that the policy underlying the MFAA is a "fundamental" one. Rather, defendants simply cite to Aguilar, a case involving a retainer agreement that, unlike the agreement in the instant action, contained an arbitration clause pursuant to which the parties agreed to submit disputes to binding arbitration. As noted above, Aguilar is one of a long string of cases in which California courts have pointed out California's strong policy in favor of enforcing arbitration agreements pursuant to the CAA. However, neither Aguilar nor any other case of which the Court is aware purports to find a "fundamental" public policy behind the statutory provisions of the MFAA.[8] The Court cannot conclude on this basis that the efficient resolution of attorney fee disputes in the absence of an arbitration agreement constitutes a fundamental public policy of California sufficient to prevent the application of New York law in the present case. Therefore, the Court finds that New York law, not California law, governs B & O's contract claims arising from the Retainer Agreement, viz., its claim for breach of the Retainer Agreement and its claims for damages under quantum meruit and unjust enrichment. Cf. Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1540 (2d Cir.1997) *382 (stating that under New York law, the general rule is that "a contractual choice of law provision governs only a cause of action sounding in contract, not one sounding in tort").
In addition, while it is true, as Patriot notes (Mem. Law Supp. Def. Patriot's Mot. Dismiss 4), that the Fee Agreement has no choice of law provision, the Court finds that the Retainer Agreement's choice of law provision encompasses B & 0's claim for breach of the Fee Agreement as well. The Retainer Agreement's choice of law provision states that New York law will govern "related matters not covered by the specifics of" the Retainer Agreement. (Compl.ถ 7.) The crux of B & O's representation of Patriot under the Retainer Agreement was the prosecution of infringement claims based on Patriot's portfolio of patents. The Fee Agreement governs the manner by which Patriot is to pay to B & O fees and expenses incurred during the patent litigation that was contemplated under the Retainer Agreement. Specifically, the Fee Agreement states:
Patriot . . . agrees to provide instructions to attorney Russel Beatie, Jr., from time to time as the need arises, directing him to disburse funds from the Fiduciary Account to cover fees and expenses (including but not limited to consulting fees and expenses and expert witness fees and expenses) related to the patent litigation . . . being undertaken by Beatie and Osborn on behalf of Patriot.
(Giffhorn Ex. A. at 1 (emphasis added).) Because the Fee Agreement sets forth guidelines for the payment of fees and expenses related to the patent litigation, it is precisely the sort of "related matter not covered by the specifics or the Retainer Agreement contemplated by the Retainer Agreement's choice-of-law provision. Accordingly, the Court finds that the Retainer Agreement's choice-of-law provision applies to the Fee Agreement, and consequently that New York law applies to B & 0's breach of contract claim with respect to the Fee Agreement.
Because New York law applies in this action, the Court finds that plaintiffs had no obligation to notify Patriot of its right to MFAA arbitration before initiating an action for fees. Therefore, Patriot's motion to dismiss for lack of subject matter jurisdiction is denied with respect to B & 0's claims for breach of contract, quantum meruit, and unjust enrichment.[9]
II. Removal Procedure
The Court next will address B & O's argument that this case should be remanded to state court because of a defect in the removal procedure. "Removal jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns." In re NASDAQ Market Makers Antitrust Litig., 929 F.Supp. 174, 178 (S.D.N.Y.1996) ("Due regard for the rightful independence of state governments, *383 which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941))). Therefore, "removal statutes are to be `strictly construed against removal and all doubts should be resolved in favor of remand.'" Berrios v. Our Lady of Mercy Med. Ctr., No. 99 Civ. 21, 1999 WL 92269, at *2 (S.D.N.Y. Feb. 19, 1999) (quoting Leslie v. BancTec Serv. Corp., 928 F.Supp. 341, 347 (S.D.N.Y.1996)). The removing party bears the burden of proving that it has met the requirements for removal. See Smith v. Kinkead, No. 03 Civ. 10283, 2004 WL 728542, at *1 (S.D.N.Y. April 5, 2004) (citing Codapro Corp. v. Wilson, 997 F.Supp. 322, 325 (E.D.N.Y.1998)); see also NASDAQ Market Makers, 929 F.Supp. at 178.
Although there is no statutory requirement that all defendants either must join the petition for removal or consent to removal, courts have consistently interpreted 28 U.S.C. ง 1446 as requiring that all defendants consent to removal within the statutory thirty-day period, a requirement known as the "rule of unanimity." Owczarek v. The Austin Co., No. 03 Civ. 0750, 2004 WL 625273, at *1 (W.D.N.Y. Feb. 11, 2004); Smith, 2004 WL 728542, at *2-3 (citing Payne v. Overhead Door Corp., 172 F.Supp.2d 475, 476-77 (S.D.N.Y.2001); Ell v. S.E.T. Landscape Design, Inc., 34 F.Supp.2d 188, 193 (S.D.N.Y.1999)) (collecting cases demonstrating "widespread agreement among the district courts, including those in the Second Circuit," regarding this principle). "While courts generally do not require all defendants to sign the removal petition itself, most courts have required some form of unambiguous written evidence of consent to the court in timely fashion." Codapro Corp. v. Wilson, 997 F.Supp. 322, 325 (E.D.N.Y. 1998) (quoting Michaels v. State of N.J., 955 F.Supp. 315 (D.N.J.1996)); see also Payne, 172 F.Supp.2d at 477 (noting that "the majority of courts interpret `consent' to mean that each defendant must submit written consent unambiguously agreeing to removal"); Ell, 34 F.Supp.2d at 193 ("stating that `unambiguous written evidence of consent' by all defendants is required" (quoting Codapro, 997 F.Supp. at 325)).
B & O argues that the removal procedure was defective because defendants did not file any written consents to removal. (Pl.'s Mem. Law Supp. Mot. Remand 7.) B & O concedes that the Notice of Removal states that it was filed on behalf of "Defendants." (Pl.'s Mem. Law Supp. Mot. Remand 7.) However, B & O infers from this fact that the Notice was filed only on behalf of defendants Patriot and Giffhorn "because defendant Wallin claims he has not been served." (Pl.'s Mem. Law Supp. Mot. Remand 7.) As a consequence, plaintiff argues, Wallin was required to file "unambiguous written evidence of consent". with the court. (Pl.'s Mem. Law Supp. Mot. Remand 7.)
B & O's argument fails. While the case law in this Circuit makes clear that, in a case involving multiple defendants, all defendants are not required to sign the same notice of removal, see e.g., Codapro, 997 F.Supp. at 325, it does not follow that all defendants may not sign the notice of removal. Indeed, ง 1446(a) provides that "[a] defendant or defendants desiring to remove any civil action . . . shall file in the district court . . . a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure." 28 U.S.C. ง 1446(a) (2000). Defendants have done precisely this. The Notice of Removal states that "[d]efendants give notice under 28 U.S.C. ง 1446 and Local Rule 81.1 that the above captioned action . . . is removed to the United States District Court for the Southern District of New York." *384 (Notice Removal 1 (emphasis added).) In its caption, the Notice identifies defendant Patriot, defendant Wallin, and defendant Giffhorn as "Defendants." (Notice Removal 1.) At two points in the Notice โ above the caption and again below the signing attorney's signature โ the signing attorney identifies himself, his law firm, and his co-counsel firm as "Attorneys for Defendants." (Notice Removal 1-2.) Counsel thus clearly indicated that he was signing the Notice for defendants Patriot, Wallin, and Giffhorn.[10] Because it is clear that all defendants unambiguously joined in the Notice of Removal, B & O's motion to remand is denied.
III. Service of Process
Defendant Wallin moves to dismiss the complaint pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficiency of service of process. When a defendant raises a Rule 12(b)(5) "challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy." Preston v. New York, 223 F.Supp.2d 452, 466 (S.D.N.Y.2002). "[I]n considering a motion to dismiss pursuant to 12(b)(5) for insufficiency of process, a Court must look to matters outside the complaint to determine whether it has jurisdiction." Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y.2002). Furthermore, "[c]onclusory statements that a defendant was properly served are insufficient to overcome a defendant's sworn affidavit that he was never served with process." Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y.1997), aff'd, 173 F.3d 844 (2d Cir. 1999).
Section 313 of the New York Civil Practice Law and Rules provides that any person subject to New York jurisdiction may be served outside New York in the same manner by which service is made within the state. N.Y.C.P.L.R. 313 (McKinney 2001). An individual may be served "by delivering the summons . . . to a person of suitable age and discretion at [their] actual place of business and . . . by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend `personal and confidential" with no return address. Id. 308(2). B & O submits that its process server properly served Wallin by (1) personally serving a copy of the summons and complaint on Dawn Raagas, Patriot's office manager, at Patriot's principal place of business on June 17, 2005, and (2) mailing a copy of the summons and complaint in an envelope marked "Personal and Confidential" to Wallin at the same address. (Pl.'s Mot. Opp'n Def. Wallin's Mot. Dismiss 3-4.) B & O has provided an affidavit of service of Quan Pham, the process server, attesting to these facts. (Heiskell Decl. Ex. C.)
Wallin, however, argues that this service was not effective because he was not employed by Patriot when the process server left the summons and complaint at Patriot's place of business. (Mem. Law Supp. *385 Def. Wallin's Mot. Dismiss 2.) To support his claim, Wallin has produced a letter from Patriot President and CEO David H. Pohl to Wallin, dated June 21, 2005, in which Pohl confirms that Wallin's employment with Patriot was terminated on June 12, 2005, requests that Wallin return all company property to Patriot, and notifies Wallin that his final paycheck is enclosed. (See Wallin Supp. Decl. Ex. A.) Wallin also has produced a declaration by Raagas, in which she described the circumstances of the delivery of the summons and complaint on June 17, 2005. Raagas states that, on Pohl's instructions, she told Pham that Patriot was not authorized to accept service on behalf of Wallin. (Raagas Decl. &p2.) According to Raagas, Pham left, but returned some time later and left the papers, telling her "that he was instructed to leave the paperwork with [her] anyway, even though [she] was clear with him that we could not accept the papers." (Raagas Decl. ถ 2.) Finally, Wallin has provided a copy of a June 15, 2005 press release issued by Patriot, stating that "Patriot Scientific CEO and President Jeff Wallin and CFO Lowell Gifthorn have left the Company although Giffhorn remains on the Board." (Wallin Supp. Decl. Ex. B.)
One might expect the matter to end here. However, B & O has pointed out a number of apparent inconsistencies regarding Wallin's claim that he was not employed by Patriot on the date of attempted service. First, the Notice of Removal, filed on July 14, 2005, states that Wallin's business address is 10989 Via Frontera, San Diego, California, the same address to which the service of process was delivered. (See Pl.'s Mem. Law. Supp. Mot. Remand 8; Notice Removal ถ 3.) Second, Wallin's initial declaration states that his employment with Patriot terminated on June 18, 2005. (See Pl.'s Mem. Law. Opp'n Def. Wallin's Mot. Dismiss 4; Wallin Decl. ถ 2.) Last, B & O points to a stock certificate dated July 22, 2005, which bears Wallin's signature. (Heiskell Decl. Ex. E.) In a supplemental declaration, Wallin states that the address listed on the Notice of Removal was an error (Wallin Supp. Decl. ถ 8), as was his initial declaration's statement that he was employed by Patriot until June 18, 2005 (Wallin Supp. Decl. ถ 7). Regarding the stock certificate, Wallin states that he believed that the signature was a reproduction used by Patriot's Utah-based stock transfer agent, who "was provided a facsimile of [Wallin's] signature as a form to use on such documents approximately two years ago." (Wallin Supp. Decl. ถ 8.)
The inconsistencies highlighted by B & O raise a factual issue of whether Wallin was employed by Patriot on the date B & O attempted to serve him. Generally, a preliminary hearing pursuant to Federal Rule of Civil Procedure 12(d) would be appropriate to resolve such a contested factual issue. However, the Court need not resolve this issue because, as discussed below, B & O has not established personal jurisdiction over Wallin.[11]
*386 IV. Personal Jurisdiction
A. The Court's Jurisdiction over Defendant Wallin[12]
1. Standard for a Rule 12(b)(2) Motion
When considering a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, it is well established that "the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.2003) (per curiam); Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). "Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction." Metro. Life, 84 F.3d at 566. Ultimately, personal jurisdiction must be proven by a preponderance of the evidence, either at an evidentiary hearing or at trial. See A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). "But where the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor, notwithstanding a controverting presentation by the moving party." Id.; see also Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001).
Furthermore, "[a]bsent a specific grant of jurisdiction, the reach of a federal district court's personal jurisdiction is coterminous with that of the personal jurisdiction of a court of general jurisdiction in the state in which the court sits." Geller Media Mgmt., Inc. v. Beaudreault, 910 F.Supp. 135, 137 (S.D.N.Y.1996) (Leisure, J.) (citing Fed.R.Civ.P. 4(k)(1)(A)). Thus, "the amenability of [an out-of-state defendant] to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits, with `federal law' entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee." Metro. Life, 84 F.3d at 567 (quoting Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963) (en banc)). To determine whether it has personal jurisdiction over Wallin, the Court must engage in a two-part inquiry. First, it must determine whether there is personal jurisdiction over Wallin under New York state law; second, if New York law provides for personal jurisdiction, the Court must determine whether the assertion of jurisdiction comports with the constitutional requirements of due process. Id.
There are two types of jurisdiction that a court may exercise over a defendant: general and specific. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In the case of general jurisdiction, plaintiff's claim need not arise out of defendant's contacts with the forum state, but defendant's contacts must be substantial; with specific jurisdiction, however, defendant's contacts need not be as substantial, but plaintiff's claim must arise out of the contacts. These two types of jurisdiction are reflected both in New York's jurisdictional statutes, see N.Y.C.P.L.R. งง 301-302 (McKinney 2001), and in the jurisprudence interpreting the due process limits of jurisdiction, see Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868.
B & O argues that the Court may exercise specific personal jurisdiction over defendant Wallin pursuant to section 302(a)(1) of the New York Civil Practice Law and Rules. (Pl.'s Mem. Law. Opp'n *387 Def. Wallin's Mot. Dismiss 5-8.) However, Wallin contends that he lacks sufficient contacts with New York to permit the exercise of jurisdiction. (Mem. Law. Supp. Def. Wallin's Mot. Dismiss 3.)
2. Jurisdiction Under CPLR Section 302(a) (1)
Section 302(a)(1) allows a court to exercise specific jurisdiction over a non-domiciliary who, in person or through an agent, "transacts any business within the state." N.Y.C.P.L.R. ง 302(a)(1) (McKinney 2001). Thus, jurisdiction is proper under section 302(a)(1) when: (1) the defendant has transacted business in New York; and (2) the cause of action arises out of the subject matter of the transacted business. Id.; CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986) (requiring "an articulable nexus between the business transacted and the cause of action sued upon" (citing McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321, 323 (1981))). A non-domiciliary transacts business under section 302(a)(1) when he "purposefully avails [himself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws." CutCo Indus., 806 F.2d at 365 (quoting McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34, 229 N.E.2d 604, 607 (1967)). The following factors should be considered when determining whether a non-domiciliary has transacted business: (1) whether the defendant has an ongoing contractual relationship with a New York corporation; (2) whether the defendant negotiated or executed a contract in New York, and whether the defendant visited New York after executing the contract with the parties; (3) whether there is a choice-of-law clause in any such contract; and (4) whether the contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum state. See Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir.1996). Courts look to the totality of the circumstances to determine whether the defendant has engaged in such purposeful activity, and require a "substantial nexus" between the business transacted and the cause of action sued upon. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1109 (2d Cir.1997); Agency Rent A Car, 98 F.3d at 29-31; CutCo Indus., 806 F.2d at 365; Cedric Kushner Prods., Ltd. v. Thobela, No. 93 Civ. 4592, 1994 WL 163992, at *2 (S.D.N.Y. Apr.22, 1994) (Leisure, J.). Indeed, jurisdiction cannot be founded upon "random," "fortuitous," or "attenuated" contacts. SAS Group, Inc. v. Worldwide Inventions, Inc., 245 F.Supp.2d 543, 548 (S.D.N.Y.2003) (citing CutCo Indus., 806 F.2d at 365); accord Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Notably, New York's provision for specific jurisdiction under section 302 does not extend as far as the federal Constitution permits. Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 150 F.Supp.2d 566, 572 (S.D.N.Y.2001).
Even if the "transacts business" requirement is satisfied, jurisdiction under section 302(a)(1) is not proper unless the cause of action "arises from" the defendant's contacts with the forum state. A cause of action "arises from" a defendant's New York contacts if the contacts are "substantially proximate to the allegedly unlawful acts." Avecmedia, Inc. v. Gottschalk, No. 03 Civ. 7831, 2004 WL 158.6411, at *5 (S.D.N.Y. July 14, 2004) (quoting Xedit Corp. v. Harvel Indus. Corp., 456 F.Supp. 725, 729 (S.D.N.Y.1978)). Thus, the business transacted by the foreign defendant in New York must "bear a substantial relationship to the transaction out *388 of which the instant cause of action arises." McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321, 323 (1981).
B & O argues that Wallin is subject to jurisdiction under section 302(a)(1) because of his extensive interaction with B & O during the negotiation of the Retainer Agreement and throughout B & O's representation of Patriot. (Pl.'s Mem. Law Opp'n Def. Wallin's Mot. Dismiss 6-7.) According to B & O, Wallin engaged in more than ten telephone conferences with Beatie and B & O associates when Patriot and B & O were negotiating the terms of the Retainer Agreement throughout 2002 (Beatie Aff. ถ 11), and more than 150 telephone conferences with Beatie and B & O associates between January 2003 and May 2005 (Beatie Aff. ถ 13). Presumably through these telephone conferences, Wallin negotiated the Retainer Agreement, monitored the activities of B & O with respect to the various litigations, and communicated with B & O about litigation and licensing issues. (Beatie Aff. ถ 10; see Wallin Decl. 112.) B & O also alleges that Wallin served as the sole negotiator on behalf of Patriot when Patriot failed to pay B & O pursuant to the Retainer Agreement. (Beatie Aff. ถ 11.) These dealings are the sum of Wallin's New York contacts alleged by B & O.
While the state's long-arm jurisdiction may be invoked even if a defendant never enters New York, see Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40, 43 (1988), "telephone calls and correspondence sent into New York, by a non-domiciliary defendant who is outside New York, generally are insufficient to establish personal jurisdiction," Burrows Paper Corp. v. R.G. Eng'g, Inc., 363 F.Supp.2d 379, 386 (S.D.N.Y.2005) (quoting Int'l Customs Assocs. v. Ford Motor Co., 893 F.Supp. 1251, 1261 (S.D.N.Y.1995)); see also Standard Enters., Inc. v. Bag-It, Inc., 673 F.Supp. 1216, 1220 (S.D.N.Y.1987) ("Interstate telephone contacts do not generally have any great significance in ง 302(a)(1) analyses."); Current Textiles Corp. v. Ava Indus., 624 F.Supp. 819, 821 (S.D.N.Y.1985) ("In general, telephone conversations between litigants inside and outside of the state about the contract at issue will not sustain personal jurisdiction under section 302(a)(1) absent additional evidence that the out of state litigant purposefully availed himself of the privilege of conducting activities in New York State.") (citation omitted). Besides the above-referenced telephone conferences, B & O points to no other contact Wallin had with New York in connection with the Retainer Agreement or the subsequent dealings between B & O and Patriot. Wallin has resided in San Diego, California since 1999 and maintains no other residences. (Wallin Decl. ถ 4.) Wallin has never lived in New York, owns no personal or real property in New York, and maintains no bank account in New York. (Wallin Decl. ถถ 4-5.) All of Wallin's discussions with B & O occurred either in face-to-face meetings Wallin had with Beatie in San Diego or telephone conferences in which Wallin was located in California (Wallin Decl. ถ 6.) Wallin never traveled to New York for business or pleasure during the term of his employment with Patriot (Wallin Decl. ถ 7.)
Moreover, the clear majority of the performance under the Retainer Agreement occurred in California. B & O filed five infringement actions on behalf of Patriot against several manufacturers. (Compl.ถ 46.) Three of these actions were filed in New York federal district courts and "promptly consolidated" in the Northern District of California. (Beatie Aff. ถ 19.) B & O defended Patriot in a related declaratory judgment action brought by Intel in the Northern District of California. (Beatie Aff. ถ 20.) B & O also filed the Inventorship Action in the Northern District of California. (Beatie Aff. ถ 20.) *389 Therefore, the consolidated patent infringement actions, the Intel declaratory judgment action, and the Inventorship Action all were litigated in the Northern District of California. Of the other work that B & O alleges it performed for Patriot โ which includes work performed in Atlanta, Georgia (Beatie Aff. ถ 12); Maine (Beatie Aff. ถ 12); Dallas, Texas (Beatie Aff. ถถ 13, 16); Sierra City, California (Beatie Aff. ถ 13); Pacific Grove, California (Beatie Aff. ถ 14); San Francisco, California (Beatie Aff. ถ 14); and Princeton, New Jersey (Beatie Aff. ถ 14) โ the only work with a New York connection is B & O's maintenance of a bank account in trust for Patriot in New York for fees and expenses related to the patent litigations (Beatie Aff. ถ 18). In short, even viewing B & 0's allegations in the light most favorable to it, the Court cannot find that the totality of Wallin's contacts with New York are sufficient to subject him to personal jurisdiction in New York.
B & O also argues that Wallin is subject to personal jurisdiction through Patriot's contacts with New York. (Pl.'s Mem. Law Opp'n Def. Wallin's Mot. Dismiss 7.) Wallin contends that all of his actions with respect to the underlying dispute, including his signing of the Retainer Agreement, were done in his capacity as an officer of Patriot, and not in any personal capacity. (Mem. Law Supp. Def. Wallin's Mot. Dismiss 3.) However, under New York law, a corporation can act as the agent of a corporate officer and thus subject the officer to personal jurisdiction under section 302. See Retail Software Svcs., Inc. v. Lashlee, 854 F.2d 18, 22 (2d Cir.1988) (citing Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40, 47 (1988) (holding that the fiduciary shield doctrine does not apply to any of the provisions of New York's long-arm statute)). Therefore, Wallin will not be protected from the exercise of personal jurisdiction by virtue of the fact that he acted only in his capacity as an officer of Patriot. Id. The New York Court of Appeals has made clear that a plaintiff need not establish a formal agency relationship between a corporation and an individual defendant officer to subject the officer to personal jurisdiction under section 302. See Kreutter, 527 N.Y.S.2d 195, 522 N.E.2d at 44. Rather, the plaintiff "need only convince the court that [the corporation] engaged in purposeful activities in this State in relation to [the] transaction for the benefit of and with the knowledge and consent of the [officer defendant] and that [the officer defendant] exercised some control over [the corporation] in the matter." Id. That is, for a corporation to be considered an agent of an officer for personal jurisdiction purposes, a plaintiff must allege: (1) that the corporation engaged in purposeful activities in New York in relation to the transaction; (2) that the corporation's activities were performed for the benefit of the individual defendant; (3) that the corporation's activities were performed with the knowledge and consent of the individual defendant; and (4) that the individual defendant exercised some control over the corporation. See id.; Retail Software, 854 F.2d at 22 (finding that a corporation acted as the agent of individual defendant officers where the corporation "engaged in purposeful activities in the state (selling franchises) with the consent and knowledge of the defendants, who both benefited from those activities and exercised extensive control over [the corporation] in the transaction underlying this suit"); Houbigant, Inc. v. Dev. Specialists, Inc., 229 F.Supp.2d 208, 224 (S.D.N.Y. 2002) ("Agency is properly found if the corporate entity `engaged in purposeful activities within this state in relation to [the] transaction for the benefit of and with the knowledge and consent of the [individual] and . . . [the individual] exercised some control over [the corporate entity] in the matter.'" (quoting Kreutter, 527 N.Y.S.2d *390 195, 522 N.E.2d at 44)); Kinetic Instruments, Inc. v. Lares, 802 F.Supp. 976, 985 (S.D.N.Y.1992) (finding that plaintiff made a sufficient claim that a corporation served as agent for individual defendant officer in New York where plaintiff "asserted that the alleged patent infringement occurred with [defendant's] knowledge and consent and for his benefit, and that he exercised control over [defendant] in the matter").
Wallin himself has conceded that he was "principally involved" in negotiating the Retainer Agreement. (Wallin Decl. ถ 2.) Given the nature of Wallin's role in these negotiations as well as his subsequent involvement in B & 0's representation of Patriot, there can be no question that Patriot's actions were performed with his knowledge and consent. However, B & O nowhere alleges โ either in the complaint or in any supporting affidavits โ that Patriot's activities were performed for Wallin's benefit. For that reason, the Court cannot find that Patriot acted as Wallin's agent for the purposes of subjecting him to personal jurisdiction in New York. Wallin's motion to dismiss for lack of personal jurisdiction is therefore granted.
B. The Court's Jurisdiction over Defendant Patriot
The Retainer Agreement contains a choice-of-forum clause that provides that "disputes shall be resolved in the federal or state courts of the City and State of New York, and the parties to this agreement consent to jurisdiction and venue in the City and State of New York." (Compl.ถ 3.) Therefore, Patriot has consented to the Court's jurisdiction if this provision is enforceable. Patriot argues that it is not.
The Court first addresses the question of what law governs the validity and interpretation of the forum selection clause of the Retainer Agreement. Neither party has addressed this question explicitly in their motion papers, although Patriot relies both on federal cases and New York statutory law. As a general rule, in diversity actions such as the present case, federal law governs matters of procedure, while state law controls matters of substantive law. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Second Circuit has held that federal law governs the validity of forum selection clauses in diversity actions. Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990) ("Questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature."); see also, e.g., Koninklijke Philips Elecs. v. Digital Works, Inc., 358 F.Supp.2d 328, 331 (S.D.N.Y.2005) (applying federal law to the question of the validity of a forum selection clause); GMAC Comm. Credit, LLC v. Dillard Dept. Stores, Inc., 198 F.R.D. 402, 406 (S.D.N.Y.2001) (same).[13]
*391 The federal standard for whether to enforce a forum-selection clause is clear. "The Supreme Court [has] held that a court sitting in admiralty should enforce a contractual forum selection clause unless it is clearly shown that enforcement would be unreasonable and unjust or that the clause was obtained through fraud or overreaching." Jones v. Weibrecht, 901 F.2d 17, 18 (2d Cir.1990) (per curiam) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). The Second Circuit has applied this rule in diversity and other non-admiralty cases. See generally id. (collecting cases). Therefore, the Retainer Agreement's forum-selection clause will be enforced "unless it is shown that to enforce it would be `unreasonable and unjust' or that some invalidity such as fraud or overreaching is attached to it." New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997).
Patriot has not alleged specifically that B & O engaged in fraud or overreaching with respect to the Retainer Agreement. It has, however, made vague reference to B & O having "throw[n] in its fee agreement a choice of law provision," (Mem. Law Supp. Def. Patriot's Mot. Dismiss 11), and defendants Wallin and Giffhorn have stated in declarations that they recalled no discussions regarding the inclusion of the forum-selection or choice-of-law clauses in the Retainer Agreement (Giffhorn Decl. ถ 3; Wallin Decl. ถถ 8, 10). These assertions do not constitute a showing of fraud or overreaching on the part of B & O. It a settled principle of contract law that "a party `who signs or accepts a written contract . . . is conclusively presumed to know its contents and to assent to them.'" Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 149 (2d Cir.2004) (quoting Metzger v. Aetna Ins. Co., 227 N.Y. 411, 125 N.E. 814, 816 (1920)); see also Joseph M. Perillo, Calamari & Perillo on Contracts ง 9.41 (5th ed.2003) (stating *392 that "a party who signs an instrument manifests assent to it and may not later complain about not reading or not understanding"); 27 Samuel Williston & Richard A. Lord, Williston on Contracts ง 70:113 (4th ed.2003) (stating that "ignorance through negligence or inexcusable trustfulness will not relieve a party from contract obligations"). Patriot had a duty to read and understand the contents of the Retainer Agreement before accepting it. Such a task would not have been strenuous: The Retainer Agreement is only four pages in length, and the paragraph that includes the choice-of-law and forum-selection language is set in the same prominent typeface as the rest of the agreement. (See Notice Removal. Ex. A. at 3-4.) In light of these considerations, and in the absence of any showing of fraud or overreaching by B & O, the Court cannot, accept Patriot's suggestion that it should not be bound by the terms of the Retainer Agreement because Wallin and Giffhorn do not recall having discussed them during negotiations with B & O.
The remaining question is whether enforcement of the forum selection clause would be unjust or unreasonable. As the Second Circuit has stated:
The Supreme Court has construed this exception narrowly: forum selection and choice of law clauses are "unreasonable" (1) if their incorporation into the agreement was the result of fraud or overreaching; (2) if the complaining party "will for all practical purposes be deprived of his day in court," due to the grave inconvenience or unfairness of the selected forum; (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4) if the clauses contravene a strong public policy of the forum state.
Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1363 (2d Cir.1993) (quoting MIS Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)) (internal citations omitted). None of these considerations are applicable to the instant action. As stated above, Patriot has made no showing of fraud or overreaching on B & O's part. Enforcing the forum-selection clause would not deprive Patriot of its day in court โ on the contrary, it would provide Patriot with such occasion. By the same token, enforcement of the forum-selection clause will not deprive plaintiff of a remedy. Finally, the Court can conceive of no strong public policy of New York that would be offended by the enforcement of a clause providing that disputes shall be resolved in New York federal or state courts.
For these reasons, the Court denies Patriot's motion to dismiss for lack of personal jurisdiction.
V. Patriot's Motion to Transfer
Patriot argues that this action should be transferred to California. In so arguing, Patriot invokes the doctrine of forum non conveniens as well as the federal statutes governing venue and transfer. (Mem. Law Supp. Def. Patriot's Mot. Dismiss 15-19.) As an initial matter, the Court notes that Patriot may not avail itself of the doctrine of forum non conveniens in this action, as the Supreme Court has made clear that the use of forum non conveniens for transfer of venue has been superseded by 28 U.S.C. ง 1404(a), and that the doctrine "has continuing application only in cases where the alternative forum is abroad." Am. Dredging Co. v. Miller, 510 U.S. 443, 449 n. 2, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). Accordingly, Patriot's motion to transfer must be decided pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. ง 1404(a). Patriot's contention that venue in this action is improper under Rule 12(b)(3) fails by virtue of 28 U.S.C. ง 1391(a), the federal statute controlling venue. Section 1391(a) provides that, in diversity actions, *393 venue is proper in the following circumstances:
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
28 U.S.C. ง 1391(a). As discussed above, Patriot has made itself subject to the personal jurisdiction of the Court by virtue of the forum-selection clause. Therefore, by operation of ง 1391, venue is proper. It remains for the Court to decide, then, whether this action should be transferred pursuant to 28 U.S.C. ง 1404(a).
B. 28 U.S.C. ง 1404(a)
Patriot's motion to transfer under ง 1404(a) is complicated by the presence of the forum-selection clause. Patriot argues that the Court properly may transfer this action because the language of the forum selection clause is permissive, rather than mandatory, and thus does not specify that New York must be the exclusive forum for this action. (Mem. Law Supp. Def. Patriot's Mot. Dismiss 15.) Citing John Boutari & Son, Wines & Spirits, S.A. v. Attiki Importers & Distributors, Inc., 22 F.3d 51 (2d Cir.1994), Patriot submits that language denoting exclusivity includes words like "exclusive" and "only," whereas the word "shall" is ambiguous. (Mem. Law Supp. Def. Patriot's Mot. Dismiss 15.) The Boutari Court stated: "The general rule in cases containing forum selection clauses is that [w]hen only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties' intent to make jurisdiction exclusive." 22 F.3d at 52 (citation omitted). The Court went on to note that "if mandatory venue language is employed, the clause will be enforced." Id. The language in the forum-selection clause in Boutari did not address venue, instead only providing that "[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts." Id. Here, however, the Retainer Agreement not only indicates the parties' consent to jurisdiction, but also specifies the forum or venue by identifying particular courts. The Retainer Agreement states that "disputes shall be resolved in the federal or state courts of the City and State of New York, and the parties to this agreement consent to jurisdiction and venue in the City and State of New York." (Compl. ถ 3 (emphasis added).) Unlike the contractual language in Boutari, this language specifies the venue of all disputes under the Retainer Agreement. This specification of venue, especially in light of the use of the verb "shall" in the venue clause, is a clear indication of mandatory, rather than permissive, language. See HongKong & Shanghai Banking Corp. Ltd. v. Suveyke, 392 F.Supp.2d 489, 492 (S.D.N.Y.2005) (finding that the application of "shall" toward venue rather than jurisdiction was "an additional indication that the parties intended to have mandatory, exclusive jurisdiction in the Philippines"); Baosteel Am., Inc. v. M/V Ocean Lord, 257 F.Supp.2d 687, 690 (S.D.N.Y. 2003) (finding forum-selection clauses mandatory where "the mandatory term `shall' is coupled with language granting jurisdiction in one forum without the possibility of jurisdiction in another forum"); cf. Boutari, 22 F.3d at 53 (" Although the word "shall" is a mandatory term, here it mandates nothing more than that the [Greek courts] have jurisdiction.'" (quoting Hunt Wesson Foods, Inc. v. Supreme Oil Co., *394 817 F.2d 75, 77-78 (9th Cir.1987))) (brackets in original).
However, contrary to Patriot's belief, the Court's finding that the forum-selection clause's language is mandatory does not prevent the Court from considering a motion to transfer. The Supreme Court has held that an agreement by the parties that a particular forum shall have "exclusive jurisdiction" over disputes is a "significant factor that figures centrally in the district court's calculus" under ง 1404(a). Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). However, as Stewart makes clear, the existence of a mandatory forum-selection clause does not by itself dispose of a motion to transfer under ง 1404(a). Although Stewart involved a contract containing a clause giving "exclusive jurisdiction" to one particular forum, id. at 24 n. 1, 108 S.Ct. 2239, the Court remanded the case for the district court to determine the forum clause's effect on the respondent's ง 1404(a) motion, see id. at 32, 108 S.Ct. 2239; see also Falconwood Fin. Corp. v. Griffin, 838 F.Supp. 836, 840 (S.D.N.Y.1993) (citing Stewart, 487 U.S. at 32, 108 S.Ct. 2239); Water Energizers, Ltd. v. Water Energizers, Inc., 788 F.Supp. 208, 212-13 (S.D.N.Y.1992) (conducting a ง 1404(a) analysis after finding that a choice-of-forum clause was mandatory). Therefore, the Court will proceed to address the relevant considerations under ง 1404(a).
Section 1404(a) provides: "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district where it might have been brought." 28 U.S.C. ง 1404(a) (2000). The statute is designed to prevent waste "of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Generale Bank, New York Branch v. Wassel, 779 F.Supp. 310, 313 (S.D.N.Y.1991) (Leisure, J.) (quoting Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)) (internal quotation marks omitted). The defendant-movant bears the burden of establishing that a plaintiffs' choice of forum is inappropriate. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978) (citations omitted). Specifically, a defendant must establish that (1) the action is one that "might have been brought" in the proposed transferee district, 28 U.S.C. ง 1404(a), and (2) the transfer is appropriate given the convenience of parties and witnesses and in the interest of justice, see Royal Ins. Co. of Am, v. Tower Records, Inc., No. 02 Civ. 2612, 2002 WL 31385815, at *2 (S.D.N.Y. Oct.22, 2002) (Leisure, J.); Lesser v. Camp Wildwood, No. 01 Civ. 4209, 2002 WL 1792039, at *2 (S.D.N.Y. Aug. 2, 2002); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 56 (S.D.N.Y.2001). The moving party must "make a clear-cut showing that transfer is in the best interests of the litigation." Miller v. Bombardier Inc., No. 93 Civ. 0376, 1993 WL 378585, at *2 (S.D.N.Y. Sept.23, 1993) (Leisure, J.) (citing Schieffelin & Co. v. Jack Co. of Boca, Inc., 725 F.Supp. 1314, 1321 (S.D.N.Y.1989)); see also Factors Etc., 579 F.2d at 218. "[M]otions for transfer lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis." In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). "A court of appeals will issue a writ of mandamus to correct a district court's disposition of a section 1404 transfer motion for a clear abuse of discretion." Warrick v. Gen. Elec. Co., 70 F.3d 736, 740 (2d Cir. 1995).
*395 The Court assesses the balance of convenience and the interest of justice by weighing: (1) the convenience of witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interest of justice based on the totality of the circumstances. See Posven, C.A. v. Liberty Mut. Ins. Co., 303 F.Supp.2d 391, 404 (S.D.N.Y.2004); Reliance Ins., 155 F.Supp.2d at 56-57; Trehern v. OMI Corp., No. 98 Civ. 0242, 1999 WL 47303, at *2 (S.D.N.Y. Feb. 1, 1999). "There is no rigid formula for balancing these factors and no single one of them is determinative." Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 561 (S.D.N.Y.2000) (citing S & S Mach. Corp. v. Gen. Motors Corp., No. 93 Civ. 3237, 1994 WL 529867, at *7 (S.D.N.Y. Sept.28, 1994)). "Instead, weighing the balance `is essentially an equitable task' left to the Court's discretion." Citigroup, 97 F.Supp.2d at 561 (citing First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 80 (2d Cir.1989)). Finally, even though it is not dispositive, "[t]he presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court's calculus." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). Accordingly, Patriot, in arguing for transfer under ง 1404(a), must "demonstrate exceptional facts explaining why [it] should be relieved from [its] contractual duty." Weiss v. Columbia Pictures Television, Inc., 801 F.Supp. 1276, 1278 (S.D.N.Y.1992) (Leisure, J.).
1. The Weight Accorded a Plaintiffs Choice of Forum
Plaintiff's choice of forum "is entitled to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer." Royal & Sunalliance v. British Airways, 167 F.Supp.2d 573, 576 (S.D.N.Y.2001) (citing In re Warrick, 70 F.3d 736, 741 (2d Cir. 1995)). To overcome the presumption in favor of plaintiffs, defendant must "make a clear showing that the proposed transferee district is a more convenient one, and that the interests of justice would be better served by a trial there." Zangiacomi v. Saunders, 714 F.Supp. 658, 660 (S.D.N.Y. 1989) (quoting Schneider v. Sears, 265 F.Supp. 257, 263 (S.D.N.Y.1967)). "Where the inconvenience to the parties and witnesses are evenly balanced, the plaintiff is entitled to his choice of forum." Id. (quoting Teachers Ins. & Annuity Ass'n of Am. v. Butler, 592 F.Supp. 1097, 1106 (S.D.N.Y. 1984)). Because B & O has chosen New York as its forum, then, other compelling factors must exist to justify transfer of this case.
2. Locus of Operative Facts
This factor favors transfer to a California forum. While the Retainer Agreement was negotiated in both New York and California, the bulk of B & O's representation of Patriot took place in California courts. Three of the five patent infringement actions that first were filed in New York district courts were transferred promptly and consolidated in California. B & O defended Patriot in a declaratory relief action that Intel Corporation filed and litigated in California. B & O filed and litigated the Inventorship Action in California, and it was in this action that B & O was disqualified, a key event leading to the alleged breach of the Retainer *396 Agreement, which breach lies at the center of this action.
3. Convenience of the Forum for Witnesses
The convenience of the forum for witnesses "is probably considered the single most important factor in the analysis of whether a transfer should be granted." Schnabel v. Ramsey Quantitative Sys., Inc., 322 F.Supp.2d 505, 516 (S.D.N.Y.2004). When weighing this factor, courts must consider the materiality, nature, and quality of each witness, in addition to the mere number of witnesses in each district. See Houlihan Lokey Howard & Zukin Capital, Inc. v. The Protective Group, Inc., No. 05 Civ. 4741, 2005 WL 3367044 (S.D.N.Y. Dec. 12, 2005) (citing Royal & Sunalliance, 167 F.Supp.2d at 577). A party moving to transfer on the ground that witnesses will be inconvenienced is obliged to "name the witnesses who will be appearing and describe their testimony so that the court may measure the inconvenience caused by locating a lawsuit in a particular forum." Schieffelin & Co. v. Jack Co. of Boca, Inc., 725 F.Supp. 1314, 1321 (S.D.N.Y.1989) (citing, inter alia, Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978)). Patriot has not provided this information. Therefore, although it appears from the pleadings and accompanying affidavits that a number of potential witnesses in this case are located in California, the Court cannot give this factor much weight in its analysis.
4. Convenience of the Parties
This factor does not weigh in favor of transferring the action to California. It is fair to say that Patriot, a California corporation, will suffer some inconvenience if the case remains in this Court. At the same time, however, it is equally true that B & O, a New York law firm, will be inconvenienced if the case is transferred to the Northern District of California. "The parties' convenience becomes a neutral factor in the transfer analysis if transferring venue would merely shift the inconvenience to the other party." Wechsler v. Macke Int'l Trade, Inc., No. 99 Civ. 5725, 1999 WL 1261251, at *6 (S.D.N.Y. Dec.27, 1999); see also Federman Assocs. v. Paradigm Med. Indus., Inc., No. 96 Civ. 8545, 1997 WL 811539, at *3 (S.D.N.Y. April 8, 1997) ("Regardless of the forum in which the action takes place, one party will be obligated to travel. Accordingly, this factor weighs neutrally in the instant analysis."); Dwyer v. Gen. Motors Corp., 853 F.Supp. 690, 693 (S.D.N.Y.1994) ("A transfer should not merely shift the burden of inconvenience from one party to the other."). Moreover, "[i]n a case where the parties have already agreed to a particular forum, the `convenience of the parties' weighs heavily in favor of hearing the case in the designated court." Falconwood Corp. v. Griffin, 838 F.Supp. 836, 840 (S.D.N.Y.1993); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc. 466 F.Supp. 71, 74 (S.D.N.Y.1978) ("Plaintiff cannot be heard to complain about inconveniences resulting from an agreement it freely entered into."). In light of these considerations, this factor is, at best for Patriot, neutral, and certainly does not weigh in favor of transfer.
5. Other Factors
a. Availability of Process to Compel Attendance of Unwilling Witnesses
Because, as noted above, Patriot has not taken the pains to specify the witnesses who will be appearing in this action, the Court cannot give this factor much weight. In addition, as the pleadings and accompanying affidavits indicate that many potential witnesses are scattered between California, Georgia, Maine, Texas, and New Jersey, there appears to be no single jurisdiction *397 with subpoena power to compel the attendance of all unwilling witnesses. Therefore, this factor does not weigh in favor of transfer.
b. Relative Means of the Parties
This factor has not been addressed by Patriot, and the Court is thus unable to find that this factor weighs in favor of transfer.
c. The Forum's Familiarity with the Governing Law
Because the Court has determined that New York law governs this dispute, this factor weighs in favor of a New York forum and against transfer.
d. The Location of Documents and Relative Ease of Access to Sources of Proof
As to this factor, the moving party must establish the location and importance of the documents in question. See Falconwood Fin. Corp., 838 F.Supp. at 841 (citing 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure ง 3853, at 425 (2d ed.1986)). Again, because Patriot has not provided this information, the Court cannot find that this factor weighs in favor of transfer.[14]
e. The Interest of Justice
As to the final factor, trial efficiency and the interest of justice based on the totality of the circumstances, the Court's consideration of whether transfer is in the interest of justice is "based on the totality of the circumstances," Mitsui Marine & Fire Ins. Co. v. Nankai Travel Int'l, 245 F.Supp.2d 523, 527 (S.D.N.Y. 2003) (quoting TM Claims Serv. v. KLM Royal Dutch Airlines, 143 F.Supp.2d 402, 407 (S.D.N.Y.2001)), and "relates primarily to issues of judicial economy," id. (citing Royal & Sunalliance v. British Airways, 167 F.Supp.2d 573, 578 (S.D.N.Y.2001)). Patriot, in its moving papers and supporting affidavits, has supplied the Court with no reasons why transfer would further trial efficiency and the interest of justice.[15] As it cannot conceive of a reason why transferring this case to California would increase judicial efficiency, the Court finds that this factor does not weigh in favor of transfer.
In sum, the Court finds that Patriot has not met its burden of showing that a weighing of the above factors favors transfer, particularly in light of the forum-selection clause. In particular, Patriot has failed to "demonstrate exceptional facts" why the forum-selection clause should not be enforced. Weiss v. Columbia Pictures Television, Inc., 801 F.Supp. 1276, 1278 (S.D.N.Y.1992). Patriot's motion to transfer pursuant to ง 1404(a), therefore, is denied.
VI. Defendant's Motion to Dismiss for Failure to State a Claim
Patriot also moves to dismiss B & O's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure *398 12(b)(6). When considering a motion to dismiss for failure to state a claim for which relief may be granted, the Court "must accept as true all of the factual allegations set out in plaintiffs complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001) (quoting Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000)); see also Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.1992). Thus, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 62-63 (2d Cir.1997). A party's claim should not be dismissed in this instance "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Lipsky v. Commonwealth United Corp., 551 F.2d 887, 894-95 (2d Cir.1976).
Defendants argue that the Court should dismiss this matter pursuant to Rule 12(b)(6) because B & O failed to provide Patriot notice of its MFAA arbitration rights before filing the instant action. This argument rehashes defendants' contention, addressed above, that the Court lacks subject matter jurisdiction, and thus can be disposed of promptly. The Court has already found that New York law governs this action and, therefore, that B & O is not bound by the requirements of the MFAA. For that reason, the Court denies Patriot's motion to dismiss for failure to state a claim.
VII. Defendant's Motion to Strike
Patriot also moves, pursuant to Federal Rule of Civil Procedure 12(f), to strike from B & O's complaint numerous references to communications between B & O and Patriot that Patriot asserts are privileged attorney-client communications. (Mem. Law Supp. Def. Patriot's Mot. Dismiss 19.) In particular, Patriot submits that B & O's pleading of privileged communications is impertinent and immaterial under Rule 12(f). (Def. Patriot's Reply Mem. Law Supp. Mot. Dismiss 4.) Rule 12(f) allows the Court to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. Proc. 12(f). The Second Circuit has made clear that district courts should be wary when deciding whether to grant a Rule 12(f) motion on the ground that the matter, is impertinent and immaterial. See Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir.1976) ("Evidentiary questions, such as the one present in this case, should especially be avoided at such a preliminary stage of the proceedings. Usually the questions of relevancy and admissibility in general require the context of an ongoing and unfolding trial in which to be properly decided."). Accordingly, courts must deny such a motion "unless it can be shown that no evidence in support of the allegation would be admissible." Id.; see also Gleason v. Chain Serv. Rest., 300 F.Supp. 1241 (S.D.N.Y.1969), aff'd, 422 F.2d 342 (2d Cir.1970).
The Court is not convinced at this time that Patriot has satisfied its burden of demonstrating grounds for striking certain pleadings. Patriot has offered no case law or argument in support of its motion. Nor has it submitted any evidence, in the form of a declaration or otherwise, that the allegations in the complaint contain privileged information. Moreover, while Patriot, in *399 its memorandum in support of its motion to dismiss, originally stated that it had not waived the attorney-client privilege (Mem. Law Supp. Def. Patriot's Mot. Dismiss 19), the Court has learned that Patriot since has filed suit against B & O in California.[16]See Letter from Russel H. Beatie, Esq., to the Court, dated April 7, 2006 at 2. This development raises the possibility that Patriot may have waived its right to invoke the attorney-client privilege with respect to those communications referenced in the complaint. Therefore, because it is not clear that no evidence in support of those allegations in the complaint that reference potentially privileged communications between B & O and Patriot would be admissible, the Court denies Patriot's motion to strike at this time.
CONCLUSION
For the foregoing reasons, plaintiffs motion to remand is DENIED. Defendant Giffhorn's and Wallin's motions to dismiss all claims against them for lack of personal jurisdiction are GRANTED. Defendant Patriot's motions to dismiss B & O's claims for breach of contract, quantum meruit, and unjust enrichment for lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim are DENIED. Defendant Patriot's motion to transfer is also DENIED, as is its motion to strike. The Parties are ordered to appear before this Court at the United States Courthouse, 500 Pearl Street, Courtroom 18B, New York, New York, on Wednesday, May 25, 2006, at 11 a.m. for a pre-trial conference.
SO ORDERED.
NOTES
[1] The board member is unnamed in the complaint.
[2] The complaint does not make clear the exact date on which Higgins was interviewed. Nor does it make clear whether Higgins was interviewed by only Lynch or by Lynch and Beatie in tandem. (See Compl. ถถ 27, 35, 62-63.) These issues are not important for the purposes of this decision, however.
[3] As discussed below, MFAA arbitration is mandatory for an attorney when initiated by a client. Patriot indicated in its motion papers that it had initiated MFAA arbitration of B & O's fee dispute in California. (Mem. Law Supp. Def. Patriot's Mot. Dismiss 8; Steele Aff. ถ 2.) However, B & O recently informed the Court that this arbitration proceeding was terminated after Patriot filed a malpractice suit against B & O in California state court. See Letter from Russel H. Beatie, Esq., to the Court, dated April 7, 2006 at 2.
[4] Section 187(2) of the Restatement (Second) Conflict of Laws states the following:
The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of ง 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
Restatement (Second) Conflict of Laws ง 187(2) (1971).
[5] Plaintiff cites Butler Fitzgerald & Potter v. Ryan, No. 92 Civ. 0006, 1992 WL 315635 (S.D.N.Y. Oct. 22, 1992), as support for the claim that New York has paramount interest in this action. In Butler, a New York law firm sued three New Jersey clients in New York for fees generated by legal services contemplated by a retainer agreement that did not include a choice-of-law provision. The defendants moved to dismiss plaintiff's action for failure to state a claim, arguing, inter alia, that the plaintiff failed to give the defendants proper notice of the availability of binding fee arbitration as required under New Jersey law. Id. at *1. The court applied New York law, finding that New York had the paramount interest in the litigation. Id. at *2.
While its facts bear some similarity to the instant case, Butler is distinguishable. Like B & O, the plaintiff law firm in Butler was a professional corporation organized under the laws of New York and maintained its principal place of business in New York. However, in finding that New York had a greater interest in the issue to be resolved, the Butler court also noted that the plaintiff performed substantial legal services in New York and that meetings between the parties, with few exceptions, occurred in New York. As the court stated:
[W]here a New York law firm is seeking attorney fees for legal work performed mostly in New York, and by attorneys who are duly admitted to practice in New York, New York has the paramount [or substantial] interest in the matter and the applicable law regarding the right to payment of attorney fees . . . is that of New York.
Id. (quoting Kramer, Levin, Nessen, Kamin & Frankel v. Aronoff, 638 F.Supp. 714 (S.D.N.Y. 1986) (internal quotation marks omitted)) (brackets in original) (emphasis added). Here, unlike in Butler, the legal work was performed mostly not in New York, but in California.
[6] Cal.Civ.Proc.Code งง 1281-1295 (West 1982).
[7] Section 6204(a) of the MFAA provides, however, that "[t]he parties may agree in writing to be bound by the award of arbitrators appointed pursuant to this article at any time after the dispute over fees, costs, or both, has arisen." Cal. Bus. & Prof.Code ง 6204(a). Here, the parties have made no such agreement.
[8] The distinction between the CAA and the MFAA is compounded by the fact that arbitration under the MFAA is nonbinding. As noted above, arbitration under the CAA is generally binding, and this element of finality to the arbitration process works to advance California's "strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution." Aguilar, 12 Cal.Rptr.3d 287, 88 P.3d at 28 (quoting Moncharsh v. Heily & Blase, 3 Cal.4th 1, 10 Cal. Rptr.2d 183, 832 P.2d 899, 902 (1992)). Nearly ninety years ago, the Supreme Court of California declared that "[t]he policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement is to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing." Utah Constr. Co. v. W. Pac. Ry. Co., 174 Cal. 156, 162 P. 631, 632 (1917); see also Moncharsh v. Heily & Blas้, 3 Cal.4th 1, 10 Cal.Rptr.2d 183, 832 P.2d 899, 903 (1992) ("Typically, those who enter into arbitration agreements expect that their dispute will be resolved without necessity for any contact with the courts.") (quoting Blanton v. Womancare, Inc., 38 Cal.3d 396, 212 Cal.Rptr. 151, 696 P.2d 645, 649 n. 5 (1985)).
[9] Patriot also argues that the Retainer Agreement's choice-of-law clause is not broad enough to reach B & O's non-contract claims โ i.e., B & O's claims against defendants Wallin and Giffhorn for tortious interference with the Retainer Agreement and the Fee Agreement. (Mem. Law Supp. Def. Patriot's Mot. Dismiss 12.) See Fin. One Pub. v. Lehman Bros. Special Financing, 414 F.3d 325, 335 (2d Cir.2005) ("Under New York law, then, tort claims are outside the scope of contractual choice-of-law provisions that specify what law governs construction of the terms of the contract, even when the contract also includes a broader forum-selection clause." (citing Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir.1996))). However, the Court does not reach this issue because, as discussed below, personal jurisdiction does not exist with respect to the individual defendants in this case, and B & O's tortious interference claims are therefore dismissed.
[10] The Court observes that a signing attorney's joint representation of defendants may not, by itself, satisfy the "rule of unanimity." See, e.g., Lampkin v. Media Gen., Inc., 302 F.Supp.2d 1293, 1295 (M.D.Ala.2004) ("[Defendants] also suggest that, because they shared the same attorney and the notice was signed by that attorney, the notice was a joint notice of removal, thereby satisfying the rule of unanimity. However, even if joint counsel intended to act on behalf of both corporations, it is unclear how [defendants] expected this court and Lampkin to be aware of their objective, as the notice itself gives no indication of their intent"); Smith v. Union Nat'l Life Ins. Co., 187 F.Supp.2d 635, 645 S.D.Miss.2001) (finding removal procedure improper even where two defendants were represented by the same counsel, because counsel failed to indicate clearly on the notice of removal that he was signing the notice for both defendants).
[11] Even if it were to find that service upon Wallin was insufficient, the Court would proceed in the same manner, that is, by addressing Wallin's argument based on personal jurisdiction to determine whether B & O should be given an opportunity to serve Wallin properly. Although Wallin has moved for dismissal pursuant to Rule 12(b)(5), dismissal on this basis would not be mandatory, as courts in this jurisdiction have "broad discretion to dismiss the action or retain the case but quash the service that has been made on the defendant.' Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y. 1997) (internal quotation marks omitted), aff'd, 173 F.3d 844 (2d Cir.1999) (quoting 5B Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure ง 1354 (3d ed.2004)).
[12] In its memorandum in opposition to defendants Patriot and Giffhorn's motion to dismiss, B & O concedes that this Court does not have personal jurisdiction over defendant Giffhorn. Therefore, the Court grants defendant Giffhorn's motion to dismiss on that ground.
[13] The Court is bound to follow Jones as precedent, but it recognizes that this decision has not gone without criticism in this jurisdiction. See, e.g., Licensed Practical Nurses, Technicians & Health Care Workers of New York, Inc. v. Ulysses Cruises, Inc., 131 F.Supp.2d 393, 398-99 (S.D.N.Y.2000) (Lynch, J.) (calling into question "whether, if the issue came before the Supreme Court, the Jones decision would prevail. It is strongly arguable that in a diversity case, the validity of such [forum selection] clauses should be determined by state law, which generally governs substantive questions involving the making and enforcement of contracts" (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 38-41, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (Scalia, J., dissenting))). At any rate, it is not clear whether a different result would obtain if the Court were to apply New York law to the question of the forum selection clause's validity. As the Jones Court observed, 901 F.2d at 19, New York courts have cited with approval the standard from M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), where the U.S. Supreme Court held that forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances". However, section 5-1402 of New York's General Obligations law also provides that:
any person may maintain an action or proceeding against a foreign corporation, nonresident, or foreign state where the action or proceeding arises out of or relates to any contract . . . for which a choice of New York law has been made in whole or in part pursuant to section 5-1401 and which (a) is a contract . . . relating to any obligation arising out of a transaction covering in the aggregate, not less than one million dollars, and (b) which contains a provision or provisions whereby such foreign corporation or non-resident agrees to submit to the jurisdiction of the courts of this state.
N.Y. Gen. Oblig. Law ง 5-1402 (McKinney 2001). Patriot argues that this provision invalidates the forum-selection clause because B & O's claim for fees amounts to, "at best," only $200,000, (Mem. Law Supp. Def. Patriot's Mot. Dismiss 11), far less than the $1,000,000 required by section 5-1402: Plaintiff argues that the statute contemplates the aggregate value of the underlying transaction, rather than the amount in dispute, and claims that Patriot's infringement and licensing program was valued at more than $500,000,000, and that Patriot's license with AMD is worth in excess of $2 million. (Pl.'s Mem. Law Opp'n Def. Patriot's Mot. Dismiss 10.)
Both parties misconstrue the statute. "Section 5-1402 `is not a limitation on the use and effectiveness of forum selection clauses. Rather, it contains a statutory mandate that a clause designating New York as the forum shall be enforceable, in cases involving $1 million or more, regardless of any inconvenience to the parties.'" Int'l Medical Tech., Inc. v. Lintech, LLC, No. 98 Civ. 4794, 2000 WL 1449889 (S.D.N.Y. Sept.25, 2000) (quoting National Union Fire Ins. Co. v. Worley, 257 A.D.2d 228, 690 N.Y.S.2d 57, 59 (1st Dept.1999)). Under New York law, forum-selection clauses are thus enforceable in actions involving less than $1 million.
[14] This factor generally is not a significant one when the question is merely one of the case of transporting documents, as opposed to whether transfer will bring necessary documents within the subpoena power. See Falconwood Fin. Corp. v. Griffin, 838 F.Supp. 836, 841 (S.D.N.Y.1993) (citing 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure ง 3853, at 425 (2d ed.1986)); see also Coker v. Bank of Am., 984 F.Supp. 757, 766 (S.D.N.Y.1997) (Keenan, J.) (finding the location of documents factor neutral in light of "today's era of photocopying, fax machines and Federal Express").
[15] With regard to judicial economy, the Court notes that while the Southern District of New York is characterized by docket congestion, so, too, is the Northern District of California.
[16] Patriot had noted in its memorandum that it was "presently evaluating legal malpractice claims against B & O." (Mem. Law Supp. Def. Patriot's Mot. Dismiss 19.)
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262 F.3d 851 (9th Cir. 2001)
WILLIAM T. GLADDEN; NICOLE L. GLADDEN, PETITIONERS-APPELLANTSv.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT-APPELLEE
No. 00-70081
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted April 11, 2001Filed August 20, 2001
Counsel: Burgess J. Raby, Tempe, Arizona, for the petitioners-appellants.
Patricia Bowman, U.S. Department of Justice, Washington, D.C., for the respondent-appellee.
Appeal from a Decision of the United States Tax Court Tax Court No. 16932-97
Before: Robert R. Beezer, Diarmuid F. O'Scannlain and William A. Fletcher, Circuit Judges.
OPINION
1
William and Nicole Gladden ("the Gladdens") appeal the Tax Court's ruling that they cannot allocate any of their cost basis in farmland to the sale of water rights appurtenant to the land. The Tax Court held that the Gladdens acquired the water rights in a "separate transaction" that occurred after the original land purchase, and that the cost basis of the rights was therefore zero. We reverse and remand.
I.
2
The Gladdens are 50% partners in the Saddle Mountain Ranch partnership ("the partnership"), which farms 880 acres of land in the Harquahala Valley in Arizona. The partnership purchased the land in 1976 for $675,000. At the time of purchase, the land had no appurtenant water rights, but was within the boundaries of the Harquahala Valley Irrigation District ("HID"), an Arizona municipal corporation formed in 1964 to acquire water rights and distribute irrigation water in the area. In 1968, Congress had approved the Colorado River Basin Project Act, Pub. L. No. 90-537, which authorized construction of the Central Arizona Project ("CAP") to bring water from the Colorado River to, among other places, the Harquahala Valley. The Act provided that project water "shall not be made available directly or indirectly for the irrigation of lands not having a recent irrigation history as determined by the Secretary." Id. §§ 304(a) (codified at 43 U.S.C. §§ 1524(a)). The partnership's land was eligible to receive CAP irrigation water because it had a "recent irrigation history" when it was purchased. In 1983, HID obtained the right to take Colorado River water for redistribution within its boundaries, and the partnership in turn obtained water rights from HID. Landowners within HID initially were not allowed to sell these water rights except as part of a sale of the land to which they were appurtenant. Ten years later, however, the federal government entered into an agreement with HID allowing these landowners to sell their water rights to the government without an accompanying sale of the land. The partnership took advantage of this agreement and sold its water rights for $1,088,132. The Gladdens' share of the sale price was $543,566. In their 1993 tax return, the Gladdens listed this amount as a capital gain. They offset this gain by the portion of the original purchase price for the land that they claimed was paid for the expectation of water rights. The Gladdens' calculation led to a reported taxable capital gain of $130,762.
3
The Commissioner disagreed with the Gladdens. She determined that the Gladdens' share of the sale of the water rights was properly characterized as a $543,566 receipt of ordinary income, with no offset for any price paid for an expectancy in the water rights. She issued the Gladdens a $110,809 notice of deficiency. The Gladdens petitioned for review in Tax Court. They contended that the water rights were a capital asset; that there had been a "sale or exchange " within the meaning of the Tax Code; that it was proper to allocate some portion of their tax basis in the land to the sale of the water rights; and that, because it was impossible to determine what portion of the basis should be allocated to the water rights, a capital gain from the sale of the water rights should not be recognized until all of the cost basis in the land had been recovered.
4
The Tax Court granted summary judgment to the Gladdens on the first two issues, holding that the water rights were a capital asset and that the rights had been sold or exchanged within the meaning of the Tax Code. However, it granted summary judgment to the Commissioner on the third issue, holding that the Gladdens could not apply any of their tax basis in the land to the sale of water rights because the partnership had purchased the land before acquiring those rights. Because of its holding on the third issue, the Tax Court found it unnecessary to reach the last issue.
5
We review the Tax Court's decision under the same standard as a district court's grant of summary judgment. Viewing the evidence in the light most favorable to the non-moving party, we examine de novo whether there was a material issue of fact remaining for trial. See Ball, Ball & Brosamer, Inc. v. Comm'r, 964 F.2d 890, 891 (9th Cir. 1992). We review the Tax Court's conclusions of law de novo. Estate of Rapp v. Comm'r, 140 F.3d 1211, 1215 (9th Cir. 1998).
II.
6
The controlling issue in this case is whether any of the cost basis in the land purchased by the partnership in 1976 can be allocated to water rights that were expected but not legally vested at the time of the land purchase. We begin our analysis with 26 C.F.R. §§ 1.61-6(a), which provides:
7
When a part of a larger property is sold, the cost or other basis of the entire property shall be equitably apportioned among the several parts, and the gain realized or loss sustained on the part of the entire property sold is the difference between the selling price and the cost or other basis allocated to such part.
8
This regulation tells us that when property is acquired in a lump-sum purchase but then divided and sold off in parts, the cost basis of the property should generally be allocated over the several parts. For example, when a developer subdivides a large tract of land and sells the smaller parcels, he must allocate his cost basis in the overall property to the smaller parcels in order to calculate his gain or loss on the sales of those parcels. See, e.g., Homes by Ayres v. Comm'r, 795 F.2d 832, 835 (9th Cir. 1986).
9
Section 1.61-6(a) would be easy to apply to this case if the water rights had already been vested when the partnership had purchased the land. If this had been true, the facts would closely resemble those of Inaja Land Co., Ltd. v. Comm'r, 9 T.C. 727 (1947), where the Tax Court applied the principle that was later codified in §§ 1.61-6(a). The city of Los Angeles had paid the taxpayer in Inaja Land $50,000 for a contract allowing the city to flood his land, and the taxpayer wished to assign some portion of the payment to recovery of his cost basis in the land. The Commissioner argued that he could not do so because the gain was ordinary income. The Tax Court disagreed, describing the transaction as the sale of an easement for a capital gain, and stating that "where property is acquired for a lump sum and subsequently disposed of a portion at a time, there must be an allocation of the cost or other basis over the several units and gain or loss computed on the disposition of each part." Id. at 735 (citing Blum v. Comm'r, 5 T.C. 702, 709 (1945)); see also Day v. Comm'r , 54 T.C. 1417, 1427 (1970) (noting that groundwater rights appurtenant to land "very substantially affected the value of [the] land" and treating revenue from sale of rights as capital gain); Rev. Rul. 66-58, 1966-1 C.B. 186 (cost basis of land and cotton allotment purchased together should be equitably apportioned in accordance with fair market value at time of purchase).1
10
Section 1.61-6(a) would also be easy to apply if the partnership had purchased the property with no expectation that it would ever be able to acquire Colorado River water rights. If this were the case, we could be sure that none of the original cost of the land was attributable to the water rights, or to any expectancy of water rights. It would obviously be improper in such a case to allow the partnership to allocate any of the cost of their original land purchase to the sale of the later-acquired rights. See Plow Realty Co. v. Comm'r, 4 T.C. 600, 609 (1945) (where land was originally valued solely for cattle grazing qualities, subsequent sale of mineral rights had cost basis of zero); Rev. Rul. 66-58, 1966-1 C.B. 186 (taxpayer could not allocate cost basis in land to sale of cotton allotment acquired after land purchase and sold separately from land).
11
However, the Gladdens' case falls between the two easy cases. The water rights were not vested at the time the partnership purchased its land, but the purchase was made with a realistic expectation that water rights would eventually attach to the land. The Tax Court held that since the water rights were not vested when the land was purchased, they were acquired in a "separate transaction" from the land purchase for purposes of determining their tax basis. Because the water rights were acquired at no cost, the Gladdens therefore had zero cost basis in them. The Tax Court's theory would create a bright-line rule under which a taxpayer could never apportion any of his cost basis in land to the sale of an appurtenant water right that was not fully vested in the land at the time of purchase, even though in practical economic terms that expectation had a real economic value at the time of purchase.
12
The Tax Court's rule appears to us to be unsound. First, it would produce odd economic consequences. Where land is purchased at a premium based on the expectation of a future water right, separating the land and water rights for the purposes of allocating basis would cause the land to have an artificially high basis and the water rights to have an artificially non-existent basis. To illustrate, suppose Greenacre and Brownacre are two parcels of land that are identical except for the fact that Greenacre is almost certain to receive (but has not yet received) federally subsidized water rights, while Brownacre will almost certainly remain parched. As a result, Brownacre sells for $500 per acre, while Greenacre sells for $1000. Assume that each parcel is purchased by a separate taxpayer, and that both eventually receive water rights. Then both taxpayers sell their water rights for $500 in one year and their land for $500 a year later. Under the Tax Court's ruling, the owner of Brownacre would report a $500 capital gain in the first year and no gain or loss in the second, which reflects economic reality. But the owner of Greenacre would report a $500 capital gain the first year, and a $500 loss in the next, when in fact neither occurred.
13
Second, the Tax Court's rule may conflict with existing precedent. In Piper v. Comm'r, 5 T.C. 1104 (1945), a taxpayer had previously traded securities in one company for common stock and common stock subscription warrants in another company. When the taxpayer sold the common stock (including stock subsequently obtained by exercising the warrants), he was allowed to attribute some of his original basis to the warrants. In the words of the court, "[i]t can not be saidthat the warrants had no value simply because they could not be exercised to immediate financial advantage at the time they were issued . . . . [T]he fact that [the warrants] were highly speculative and entirely prospective is no basis . .. for denying to them any value." Id. at 1110.
14
Finally, we draw support from Revenue Ruling 86-24, 1986-1 C.B. 80. There, a farmer purchased ten cows that had been artificially impregnated with transplanted embryos. The fair market value of the cows before their impregnation was "80x dollars" but the farmer paid "250x dollars" for them. After the cows gave birth, the farmer sold them (but kept their calves), this time for $80x. The IRS ruled that the farmer would not recognize any gain or loss on the sale of the cows; of the $250x purchase price, only $80x was properly allocated to basis in the cows themselves. According to the IRS, the remaining $170x that the farmer paid was the price of the embryos, and that amount was therefore properly treated as the farmer's basis in those embryos. This result mirrors the one we reach here; the farmer's basis in the calves was the premium he paid for the cows based on his expectation that they would give birth. Cf. Sherwood v. Walker , 33 N.W. 919, 922 (Mich. 1887) (breeding cows more valuable than barren cows).
15
For the foregoing reasons, we believe that the Gladdens may apportion some of their cost basis in the land to the later sale of water rights appurtenant to that land. More precisely, we hold that where a purchaser pays a premium for land based on a realistic expectation that water rights will attach to that land in the future, the purchaser may, upon sale of the later-acquired water rights, claim a cost basis equal to the premium paid.
16
The IRS has not cited any cases that contradict our holding. Its brief relies principally on Niagara Mohawk Power Corp. v. United States, 525 F.2d 1380 (Ct. Cl. 1975), where the Court of Claims held that a company that acquired water rights through a merger with another company could not use as its cost basis the fair market value of those rights at the time of acquisition. See id. at 1389-90. Instead, the court determined that the proper basis for the rights was the cost of their acquisition, measured by the value of securities exchanged to obtain them. We believe that Niagara Mohawk is consistent, rather than inconsistent with our rule, for the value attached to the water rights in that case was the price actually paid for them. In the case before us, the IRS argues that the water rights came to the partnership at no cost, and that they therefore have a basis of zero. But this argument evades the question by assuming the answer. If the partnership paid a premium for its land, it did so because the land was expected to receive water rights, just as the cows in Rev. Rul. 86-24 were expected to produce calves. One expectation was less sure than the other, but both were reasonable.
III.
17
Having determined that the Gladdens may apply some portion of the cost basis of the partnership's land purchase to the sale of its water rights, the question then becomes how much may be applied. Inaja Land guides us again. After determining that the taxpayer in that case was entitled to allocate some portion of the cost basis of the property to the sale of the easement, the Tax Court recognized the difficulty of determining the appropriate basis with precision. See 9 T.C. at 735. Noting the general rule that taxpayers "should not be charged with gain on pure conjecture unsupported by any foundation of ascertainable fact," id. at 736 (citing Burnet v. Logan, 283 U.S. 404 (1931)), the Tax Court held that where it is "impossible or impractical" to apportion basis among several portions of a property, a taxpayer need not recognize any capital gain until the entire cost basis of the property has been recovered. Id. at 736.
18
The Gladdens contend that, under Inaja Land, it is "impossible or impractical" to apportion a definite basis to the water rights, and that they are therefore entitled to recover their entire cost basis in the land before reporting any capital gain from the sale. See id. at 736. We are not so sure. For example, it may be possible to determine the premium price paid for the potential water rights by comparing the price of the land purchased by the partnership to prices of similar land without a "recent history of irrigation" and therefore without any expectation of water rights. The difference between these prices would be the premium paid for the expectation of future water rights.
19
However, because the Tax Court ruled against the Gladdens on summary judgment, the record is undeveloped. We cannot determine, based on the record now before us, either what portion of the cost of the land may have been a premium paid for the water rights later acquired by the partnership, or whether it is "impracticable or impossible" to determine what that premium may have been.
20
We therefore REVERSE and REMAND for further proceedings consistent with this opinion.
Notes:
1
Revenue rulings "constitute a body of experienced and informed judgment to which courts may properly resort for guidance." Lucky Stores v. Comm'r, 153 F.3d 964, 966 n.4 (9th Cir. 1998) (quoting Watts v. United States, 703 F.2d 346, 350 n.19 (9th Cir. 1983)).
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2008
No. 07-41259
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS ENRIQUE LEIVA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:07-CR-564-ALL
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Carlos Enrique Leiva
has moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967). Leiva has not filed a response. Our
independent review of the record and counsel’s brief discloses no nonfrivolous
issue for appeal. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
*
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.
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613 F.2d 314
Jonesv.Alexander
No. 77-2337
United States Court of Appeals, Fifth Circuit
2/14/80
M.D.Ga., 609 F.2d 778
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76 F.3d 386
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.Willard JENKINS, Sr., Plaintiff-Appellant,v.Sheila E. WIDNALL, Secretary of the Department of the AirForce, Defendant-Appellee.
No. 95-15851.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 6, 1995.*Decided Dec. 11, 1995.
Before: SNEED, TROTT, and HAWKINS, Circuit Judges.
1
MEMORANDUM**
2
Willard Jenkins, Sr. appeals pro se the district court's grant of summary judgment for the Secretary of the Air Force ("Secretary") in his employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) ("ADEA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1
3
Jenkins, a fifty-one year old black male veteran, with an unspecified 10% service related disability, had received a temporary six-month appointment as a store clerk at the McClellan Air Force Base ("MAFB") commissary under a preference given to eligible veterans.
4
Jenkins contends that he was discriminated against on the basis of race, sex, age, national origin and disability: (1) when he was terminated upon expiration of his temporary employment at the MAFB commissary; (2) when he was directed to file his application for permanent employment with the State of California Employment Development Department Office ("EDD"); and (3) in the handling of his Equal Employment Opportunity ("EEO") complaint.2 This contention lacks merit.
5
We review the district court's grant of summary judgment de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Summary judgment should be granted if the evidence, read in the light most favorable to the moving party, demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jesinger, 24 F.3d at 1130.
6
A prima facie case of intentional discrimination based on race, sex, age and national origin "may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green ... or by more direct evidence of discriminatory intent." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). Under McDonnell Douglas, a plaintiff must show: (1) membership in a protected class; (2) that he or she applied for and was qualified for a job; (3) that an employment decision was made despite these qualifications; and (4) that the position remained open and the employer continued to consider applicants with comparable qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
7
Here, personnel records submitted by Jenkins explicitly state that "temporary employees serve under appointments limited to one year or less" and that the conditions of temporary employment were explained to Jenkins prior to his appointment. In addition, the records state that Jenkins' appointment was made pursuant to 5 C.F.R. § 316.402(b)(4). See 5 C.F.R. § 316.401(c)(1) (appointments under section 316.402(b)(4) are not to exceed one year). Because the store clerk position was temporary, Jenkins cannot show that he was terminated despite his qualifications or that the position remained open. See McDonnell Douglas, 411 U.S. at 802. Accordingly, Jenkins failed to make out a prima facie case under McDonnell Douglas. See id.
8
Jenkins also failed to make out a prima facie case based on direct evidence of discrimination. See Wallis, 26 F.3d at 889. First, Jenkins alleged that MAFB's refusal to accept his Veterans Readjustment Act ("VRA") application and the MAFB's instruction that his application must be submitted to the EDD was discriminatory because the referral program is used to discriminate against black applicants. The Secretary, however, offered evidence that since late 1986, all VRA applicants to MAFB are referred to the EDD. The Secretary also provided evidence that black applicants were referred to and selected by MAFB during the time period in which Jenkins alleges discrimination. Second, Jenkins alleged discrimination in the handling of his EEO complaint. The Secretary, however, produced evidence that the Office of Chief EEO Counselor made every effort to assist Jenkins in preparing his complaint, including assigning Jenkins a new counselor when he expressed dissatisfaction with his initial counselor, meeting with him for seven hours to assist him in clarifying his allegations, and giving him the opportunity to review and amend both his initial complaint and the addendum prepared by his new counselor.
9
Because Jenkins did not present any direct evidence that the Secretary intentionally discriminated against him on the basis or race, sex, age, or national origin, he also failed to make out a prima facie case of discrimination based on direct evidence of discrimination. See id.3
10
Finally, because Jenkins failed "to establish the existence of an impairment that substantially limits a major life activity," he failed to make out a prima facie case of disability discrimination under the Rehabilitation Act. See Jasany v. United States Postal Service, 755 F.2d 1244, 1249 (9th Cir.1985); see also Fornsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir.1988) (stating that "purely conclusory allegations of alleged discrimination, with no concrete, relevant particulars, will not bar summary judgment").
11
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
**
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
To the extent Jenkins contends the Secretary violated the Veterans Readjustment Act ("VRA"), the district court properly held that it lacked jurisdiction to consider Jenkins' claim. Where a VRA statute and implementing regulations are silent on the issue of judicial review, agency actions are committed to agency discretion, and are thus immune from judicial review. See Clementson v. Brock, 806 F.2d 1402, 1404-05 (9th Cir.1986)
2
Jenkins does not appeal the district court's earlier ruling on nine other discrimination claims. See Fed.R.App.P. 28(a)(3); International Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985) (noting that this court will not consider matters not raised on appeal)
3
Because Jenkins has not "show[n] how allowing additional discovery would have precluded summary judgment," the district court did not abuse its discretion by denying Jenkins' requests to compel discovery. See Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir.1994). Additionally, the district court properly denied Jenkins' request for preliminary relief. For the reasons discussed above, Jenkins could not show "probable success" on the merits. See Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.1987)
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610 So.2d 226 (1992)
Daniel S. MISTRIC, et ux., Plaintiffs-Appellees,
v.
Edna KURTZ, et al., Defendants-Appellants.
No. 91-1235.
Court of Appeal of Louisiana, Third Circuit.
December 9, 1992.
Writ Denied February 11, 1993.
*227 Jacque B. Pucheu, Jr., Eunice, for plaintiffs-appellees.
James P. Doherty, Jr., Opelousas, for defendants-appellants.
Before GUIDRY, DOUCET and WOODARD, JJ.
GUIDRY, Judge.
This is a boundary action involving adjoining properties located in downtown Opelousas, Louisiana. Plaintiffs, Daniel S. Mistric and Margie P. Mistric, filed this suit in 1989 to establish the boundary between their property and property of defendants, Edna Riseman Kurtz, Mildred Riseman, Katherine Riseman, Margaret Riseman and Elaine Riseman (the Risemans). The properties are located between Bayou Tesson on the west and Market Street on the east and front Landry Street on the south. The Riseman property lies immediately west of the Mistric property.
The parties trace their respective titles to a common author, Bernard Bennett and Albert Pickett. The defendants' title is the more ancient, having resulted from an October 30, 1905 sale to their father, Ben Riseman, from Bennett and Pickett. In the sale, Ben Riseman acquired a lot of ground measuring 104 feet, six inches east of Bayou Tesson fronting on Landry Street commencing from a fence post located to the east of Bayou Tesson. Bennett and Pickett did not transfer a small strip of land, of unstated width, running north-south which lay between the edge of Bayou Tesson and the fence post.
Plaintiffs trace their title to a sale from Bennett and Pickett to Harriet Siegel and Bertha Bohren executed on November 23, 1905. The Mistric tract measures 94 feet on its south boundary fronting on Landry Street by a depth of 66 feet. In the original conveyance, it is described as being bounded on the west by property of Ben Riseman. After several intervening conveyances, the Mistrics purchased the property from Dr. Edward G. Burleigh, Jr. and Melissa Burleigh on May 11, 1988.
Beginning sometime during the early 1940s, the Risemans commenced leasing their property. The first lessee, John Wilbert, constructed a Dairy Queen ice cream shop with a parking lot adjoining on the east. During the 1950s, Wilbert built a sandwich shop, the "Little Chef", on the northern edge of the parking lot. Thereafter, Wilbert erected a canvas canopy along the eastern edge of the parking lot from *228 the "Little Chef" southward toward Landry Street. The canopy is parallel to and located approximately 50 feet to the east of the Dairy Queen building.
On March 21, 1959, the Risemans leased their property to Queen's Concessions, Inc. which operated both the Dairy Queen and the Little Chef. On June 30, 1961, the Risemans leased the same property to Charles Going, Clifford Ryder, and H.J. Daniel, who then subleased the property to Alex Guidry, who also operated both businesses. Guidry died approximately two months later and, thereafter, the two businesses were owned and operated by his widow, Margaret Guidry, until sometime in 1970. During this period, Mrs. Guidry replaced the canvas parking canopy with a metal canopy which extended approximately two feet east of the paved parking lot. In 1970, Margaret Guidry sold the Dairy Queen and Little Chef to Joe Riley, who has since owned and operated both businesses.
Beginning in 1955, the Risemans' lessees began paying an annual fee to the Mistrics' ancestors-in-title, the Burleighs, for what was regularly noted in the Burleigh financial records as "lot rent", "parking lot rent", "rent of parking lot", "parking space lot rent" and "annual rent for parking space". The rent began at $50 per year in 1955 and increased to $75 per year in 1965. These payments continued until the Burleighs sold their property to the Mistrics in 1988. The record reflects that the Risemans were not aware that their tenants were paying this fee to the Burleighs, owners of the adjoining tract.
The dispute over the boundary began when, upon purchasing the Burleigh tract, Mistric informed Riley that his property extended westward into the Dairy Queen/Little Chef parking lot to include the area under the parking canopy and beyond. Mistric demanded $200 per month in rental payments for Riley's use of this parking area. Riley paid this rent for three months until he was informed by the Risemans that, as far as they were concerned, the entire area upon which the parking lot was located belonged to them. With this information, Riley then stopped paying rent to the Mistrics. The Mistrics then instituted this suit to fix the boundary.
Prior to trial, the Mistrics hired Morgan Goudeau and Associates to survey their tract. According to the results of the survey, the Mistric tract extends westward 32 feet into the Dairy Queen/Little Chef parking lot. Accordingly, Goudeau's survey fixes the western boundary of the Mistric tract near the center of the Dairy Queen/Little Chef parking lot entrance from Landry Street.
At trial, the Risemans argued that the survey was not accurate because the surveyor, Robert Wolfe, relied solely upon the Mistrics' title in formulating the boundaries. The Risemans also contended that the annual fee paid by their tenants to the Burleighs was intended solely to compensate the Burleighs for the two foot encroachment onto the Burleigh tract by Margaret Guidry's extension of the covered parking canopy in the early 1960s. It was the Risemans' position at trial that their tract extended to the eastern edge of the paved section of the parking lot. In the alternative, the Risemans urged that, even if the ideal boundary was correctly located by Goudeau, they had acquired ownership of the disputed area through more than 30 years possession exercised by their lessees.
The trial court fixed the boundary between the two tracts in accordance with the Goudeau survey. The trial judge rejected the Risemans' 30 year acquisitive prescriptive plea, reasoning that, since the Risemans' tenants were also tenants of the Burleighs, the Risemans' tenants could not possess the disputed area in favor of the Risemans and simultaneously adverse to their other lessors, the Burleighs. Judgment was rendered accordingly. Defendants appealed.
This appeal presents two issues for our review: first, whether the trial court erred in setting the ideal boundary according to the Goudeau survey; and, second, whether the trial court erred in rejecting appellants' plea of prescription under La.C.C. arts. 794 and 3486 et seq.
*229 THE IDEAL BOUNDARY
Insofar as a fixing of the ideal boundary is concerned, the parties rely on titles traced to a common author. La.C.C. art. 793 is applicable in this situation. It provides as follows:
When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles to a common author preference shall be given to the more ancient title.
See Williamson v. Kelly, 520 So.2d 868 (La.App. 3rd Cir.1987), writ denied, 522 So.2d 562 (La.1988), which discusses the trial court's duty to give preference to the more ancient title.
Defendants claim that, since theirs is the more ancient title, the trial court erred in fixing the boundary according to plaintiffs' survey which relied solely upon the plaintiffs' more recent title. Robert Wolfe, Jr., the surveyor, testified that he relied on the Mistrics' title and a City of Opelousas map in preparing the plat. The starting or reference point for the survey was the corner of Market and Landry Streets. He measured 81.5 feet westward along Landry Street from this starting point. This derived point was established as the southeast corner of the Mistric tract. He then proceeded to mark the 94 foot by 66 foot dimensions of their tract, which took in 32 feet of the Dairy Queen/Little Chef parking lot. Wolfe admittedly did not refer to the earlier Riseman title which provided for 104 feet, six inches eastward along Landry Street from the fence post east of Bayou Tesson. However, Wolfe measured the length of Landry Street westward across Bayou Tesson to the next intersection to verify the dimensions of the entire block, which measurement he found to be accurate.
Julian Kurtz, Edna Kurtz's son, testified that he personally measured approximately 104 feet eastward from the edge of the Bayou Tesson gully. To his surprise, that length was to the middle of the Diary Queen/Little Chef parking lot driveway, remarkably close to the southwest corner of the Mistric tract as fixed by Wolfe. He then measured 81.5 feet from Market Street westward and, again to his surprise, found this distance to be exactly where Wolfe had placed the southeast corner marker for the Mistric tract. Julian stated that he was "stunned" by these results. He further testified that the width and location of Bayou Tesson had greatly changed over the years and that the monument (fence post) referred to in the Riseman title could not be located. Finally, Kurtz testified that he began his measurements at the eastern edge of the present location of Bayou Tesson.
Edna Riseman Kurtz, a plaintiff, testified that she was always under the impression that the Riseman family owned the entire parking lot area. During the entire time of "presumed" ownership, the only indication she had of any encroachment onto the Burleigh/Mistric tract was the two foot metal canopy overhang. She stated that the Risemans never conducted a survey of their tract between Bayou Tesson and the Burleigh/Mistric tract.
Dr. Edward Burleigh, Jr. testified that it was his understanding that the annual fee paid the Burleighs by the Risemans' tenants was for parking. He did not elaborate further as to the land area covered by the rental payments.
In a boundary action, the boundary location is a question of fact to be determined by the trier of fact, and such determination should not be reversed on appeal in the absence of manifest error. Richard v. Thierry, 509 So.2d 604 (La.App. 3rd Cir.1987); Williams v. Peacock, 441 So.2d 57 (La.App. 3rd Cir.1983). From the testimony and evidence reviewed above, it is clear that Wolfe's method of surveying the Mistric tract was within the realm of acceptable surveying principles. Although Wolfe did not commence his survey with the earlier Riseman title, the record reflects a valid reason for his failure to do so, i.e., apparent destruction of the artificial monument referred to in the Riseman title and the change in location of Bayou Tesson. Wolfe started his survey from a known and clearly identifiable reference point, the corner of Market and Landry Streets. Hence, from a practical perspective, *230 it would have been virtually impossible to rely on the dimensions of the Risemans' more ancient title in conducting the survey of the Mistric tract. Additionally, the Risemans offered no expert evidence to contradict the location of the ideal boundary as fixed by Wolfe.
These factors, when combined with the fact that Wolfe's measurements were corroborated by the measurements of Julian Kurtz, defendants' own witness, prompts the conclusion that the trial court was not clearly wrong in relying on the only survey in evidence as accurately fixing the ideal boundary between the Mistric tract and the Riseman tract. Accordingly, this assignment of error lacks merit.
DEFENDANT'S ACQUISITIVE PRESCRIPTION CLAIM
Defendants argue, in the alternative, that even if the ideal boundary is located as established by the Goudeau survey, they have acquired title to the entire area of the paved parking lot by 30 year acquisitive prescription. In this regard, La.C.C. art. 794 provides:
When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.
"Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time". La. C.C. art. 3446. It is well settled that the party pleading acquisitive prescription bears the burden of proving all of the facts that are essential to support it. The proof required to fix a boundary according to acquisitive prescription is the same proof required to prove ownership in a petitory action based on 30 year acquisitive prescription, i.e., continuous, uninterrupted, peaceable, public, and unequivocal possession with a positive intention to possess as owner. La.C.C. arts. 3424, 3476 and 3486; Allen v. Martino, 529 So.2d 90 (La.App. 1st Cir.1988); Williams, supra; Briggs v. Pellerin, 428 So.2d 1087 (La.App. 1st Cir. 1983).
Defendants' acquisitive prescription claim rests entirely upon the possession exercised by their lessees. The following Civil Code articles are applicable.
La.C.C. art. 3428 states:
One may acquire possession of a thing through another who takes it for him and in his name. The person taking possession must intend to do so for another.
La.C.C. art. 3429 states:
Possession may be exercised by the possessor or by another who holds the thing for him and in his name. Thus, a lessor possesses through his lessee.
La.C.C. art. 3437 states:
The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession.
La.C.C. art. 3487 states:
For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed.
The owner acquires the benefit of another's corporeal possession of a thing only if it can be established that the possessor actually intended, at the moment he assumed possession of the thing, to hold such for the former and not for himself. McPherson v. Roy, 390 So.2d 543 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 910 (La.1981). Since the above cited Civil Code articles clearly permit a lessee to possess property on behalf of his lessor, the initial corporeal possession may be exercised by the tenant on behalf of the alleged owner to whom he pays rent. Once possession through the lessee has begun corporeally it may, for purposes of acquisitive prescription, be preserved by external and public signs which evidence to the public the possessor's intent to maintain his possession. Seven Water Holes Corporation v. Spires, 393 So.2d 811 (La.App. 2d Cir.1981), writ denied, 399 So.2d 610 (La.1981).
Plaintiffs urge that, under the applicable principles of law set forth above, defendants' claim of acquisitive prescription *231 through their lessees was properly rejected by the trial court. They urge that the trial court was correct in its determination that, as lessees of both parties to this suit, the Risemans' tenants could not possess in favor of the Risemans adverse to the Burleighs.
Margaret Guidry, who leased the Riseman property from 1961 to 1970, testified that she had always assumed that her lease with the Risemans covered the area containing the businesses as well as the entire parking area. She stated that she began to pay rent to the Burleighs in 1961 after replacing the canvas canopy with the new metal canopy. It was her understanding that the rental payment was for the resulting two foot encroachment beyond the paved parking area overhanging the Burleigh property. She also stated that she was never made aware by either the Burleighs or the Risemans of the exact boundary location. The trial judge gave little weight to Ms. Guidry's testimony because he found that, according to the Burleigh records, rental payments for "parking space" began in 1955 while John Wilbert was leasing the property, not 1961 as claimed by Ms. Guidry.
Joe Riley testified that he is the owner and operator of the Dairy Queen. He began in the business by working for Wilbert in 1956 and eventually purchased both the Dairy Queen and Little Chef from Ms. Guidry in 1970. He has since sold the Little Chef but continued to operate the Dairy Queen. He stated that the parking lot has remained "as is" for the entire time that he has known of the businesses located on the Riseman property, i.e., since the early 1940s. After purchasing the businesses, he continued to pay the $75 annual rent to the Burleighs for what he considered was the two foot canopy overhang. After Mistric purchased the Burleigh tract, Mistric informed Riley that he owned part of the parking lot and wanted $200 per month for its use from Riley. According to Riley, he paid Mistric this amount for three months until he was informed by the Risemans that they owned the entire parking lot.
The only evidence in favor of the Mistrics on the issue of possession is the fact that the Riseman tenants paid an annual fee to the Burleighs. The Burleigh records confirm such payments were made. The trial court reasoned from this that the payments were intended for the parking area as surveyed by Wolfe. The trial court reasoned further that, as tenants of both parties, the successive owners of the Dairy Queen/Little Chef businesses, were precluded from possessing for the benefit of one of their lessors (Risemans) and, at the same time, adversely to the other lessor (Burleighs). We find this conclusion to be clearly wrong.
The record clearly establishes that the Risemans, through their tenants, exercised continuous, uninterrupted, peaceful, public, and unequivocal possession as owner of the property in dispute for a period in excess of 40 years. Their possession was within the visible bounds of the paved parking lot, which was constructed in the early 1940s and continuously maintained by the tenants since that time. The fact that the tenants possessed the disputed property on behalf of the Risemans is evidenced by written lease agreements which are made part of the record and by the testimony of the Risemans and their tenants. The possession by the Risemans' tenants inuring to the Risemans' benefit was continuous and uninterrupted until 1988 when the Mistrics first asserted a claim to a portion of the parking area and then instituted this boundary action. However, prior to this time, the Risemans had acquired title to the entire parking area by virtue of 30 year acquisitive prescription. The trial court's conclusion otherwise, that the Risemans' tenants' possession could not be considered adverse to the Mistrics' ancestors in title, is clearly wrong.
The record establishes only that, beginning in 1955, the Riseman tenants began paying a modest annual fee to the Burleighs. The Riseman tenants who testified, Margaret Guidry and Joe Riley, both stated that it was their understanding that this fee was being paid to the Burleighs because of the encroachment of the metal *232 canopy overhang which extended two feet beyond the eastern edge of the Riseman parking lot. Even Dr. Burleigh stated that, "... I think it was the awning which initiated some rental agreement which my father apparently made with either Guidry or Riley". The only other evidence concerning these payments were the self-serving aforementioned notations in the Burleighs' financial records. However, none of the plaintiffs' witnesses, including Dr. Burleigh, had any knowledge of what actual land area, if any, was intended to be covered by these payments.
The record is clear that whatever agreement existed between the Risemans' tenants and the Burleighs was held strictly between these parties. The Risemans never had any knowledge that their tenants were also paying an annual fee to the Burleighs. Although the Risemans through their tenants exercised open and notorious continuous possession of the parking lot area beginning in 1940, the Burleighs and their ancestors in title did not assert any claim to any part thereof for over 40 years except for the private agreement between the Burleighs and the Riseman tenants. Under these circumstances, whatever possession the Riseman tenants may be said to have exercised on behalf of the Burleighs was clandestine and equivocal and has no legal effect. La.C.C. arts. 3435 and 3436. Therefore, such possession cannot be considered adverse to the possession exercised by the lessees on behalf of the Risemans. Accordingly, we conclude and hold that the possession of the Risemans, through their tenants, of the entire parking lot area for in excess of 40 years was sufficient for the Risemans to acquire ownership of the disputed area by 30 year prescription. Accordingly, we conclude that the boundary between the properties of the parties should be fixed at the eastern edge of the parking lot. Since the exact location of the eastern edge of the parking lot is not monumented or shown on the Goudeau survey, we will remand this matter to the trial court with instructions to appoint a surveyor in accordance with the provisions of La.C.C.P. art. 3692 to establish, fix and monument the boundary between the properties of the parties in accordance with the views expressed herein. The costs of this survey is to be borne one-half (½) by plaintiffs and one-half (½) by defendants.
DECREE
For these reasons, the judgment of the trial court is reversed and set aside and there is judgment in favor of defendants and against plaintiffs fixing the boundary between the properties of the parties as the eastern edge of the parking lot constructed by the Risemans in the early 1940s. This matter is remanded to the trial court for appointment of a surveyor pursuant to La. C.C.P. art. 3692 who will locate and monument the boundary between the properties of the parties in accord with this judgment, with a plat of survey reflecting such location to be filed in the record of this matter. Costs of this survey are to be borne one-half (½) by plaintiffs and one-half (½) by defendants. Plaintiffs are taxed with all other costs of these proceedings both at the trial level and on appeal.
REVERSED, RENDERED AND REMANDED.
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591 F.2d 1342
Montgomeryv.U. S.*
No. 78-3147
United States Court of Appeals, Fifth Circuit
3/13/79
1
W.D.Tex.
2
AFFIRMED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
***
Opinion contains citation(s) or special notations
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36 A.3d 1063 (2012)
209 N.J. 231
STATE
v.
CUEVAS.
Nos. C-570 September Term 2011, 068557.
Supreme Court of New Jersey.
February 2, 2012.
Petition for Certification Denied.
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477 F.Supp.2d 342 (2007)
SECURITIES EXCHANGE COMMISSION, Plaintiff,
v.
Karnig H. DURGARIAN, Jr., Donald F. McCracken, Ronald B. Hogan, Virginia A. Papa, Kevin F. Crain, Sandra G. Childs, Defendants.
Civil Action No. 05-12618-NMG.
United States District Court, D. Massachusetts.
March 6, 2007.
*343 *344 *345 Ian D. Roffman, Scott D. Pomfret, Securities and Exchange Commission, Boston, MA, for Plaintiff.
Frank A. Libby, Jr., Kelly, Libby & Hoopes, PC, Gary S. Matsko, David M. Cogliano, Davis, Malm & D'Agostine, P.C., Bruce A. Singal, Jamie L. Wacks, Donoghue, Barrett & Singal, PC, Kelley A. Jordan Price, Michael J. Connolly, Hinckley, Allen and Snyder, LLP, Anthony Mirenda, Jennifer A. Cardello, Robert E. Toone, Jr., Foley Hoag LLP, Jason C. Moreau, John A. Sten, Greenberg Traurig LLP, Boston, MA, for Defendants.
MEMORANDUM & ORDER
GORTON, District Judge.
This case involves a securities enforcement action brought against former officers and employees of Putnam Fiduciary Trust Company ("Putnam"), a subsidiary of Putnam Investments, which provides record-keeping and administrative services for mutual funds and retirement and defined contribution plans sponsored by various companies. The six defendants are: Karnig Durgarian, Jr. ("Durgarian"), formerly Putnam's Chief of Operations as well as Principal Executive Officer of several Putnam mutual funds, Donald McCracken ("McCracken"), former Head of Global Operation Services, Ronald B. Hogan ("Hogan"), former vice president in the new business implementation unit, Virginia A. Papa ("Papa"), former Director of the Defined Contribution Plan Servicing unit, Kevin Crain ("Crain"), former head of the plan administration unit and Sandra *346 Childs ("Childs"), former head of both the compliance and new business implementation units. Currently pending before this Court are: 1) motions of all six defendants to dismiss all counts, 2) a motion of the SEC to amend its complaint if the Court grants, in whole or in part, the motions to dismiss and 3) a motion of Defendant Durgarian to strike two items referenced in the complaint.
I. Background
The Complaint alleges that on January 2, 2001, Putnam failed to invest certain assets of the retirement and defined contribution plans of Cardinal Health, Inc. and Allegiance Health, Inc. (collectively, "the Combined Plan"), as requested. Putnam made the investment one day later, on January 3. As a result of the delay, the Combined Plan missed out on an estimated $4 million market appreciation that it would have earned if the funds had been invested on January 2. Despite the delay, an email from a representative of the Combined Plan to an unknown employee at Putnam indicated, that representatives of the Combined Plan were under the impression that the money had been invested on January 2 and had benefitted financially from the market appreciation.
The SEC filed a complaint against the defendants on December 30, 2005, alleging that the defendants violated various securities laws in an effort to conceal the fact that the Combined Plan's assets had not been invested on January 2. According to the facts alleged by the SEC, all of the defendants, as well as some other uncharged individuals, met numerous times to discuss the situation. At those meetings, defendant Durgarian stated that the one-day delay was not to be disclosed to the Combined Plan and that Putnam would not bear the cost of the shortfall. In order to make up the shortfall, Hogan revealed a plan he devised which would move money from other Putnam mutual funds to the Combined Plan through the use of "as of trades. By using those funds to make up the shortfall, the Combined Plan would not realize that it had not capitalized on the market appreciation. The Complaint alleges that all of the defendants agreed to the plan and Durgarian directed Hogan to execute the necessary trades.
An "as of trade is a backdated purchase or sale of a security that utilizes the net asset value ("NAV") from a prior day rather than the current day's NAV. The NAV is the price shareholders pay for mutual fund shares which is calculated by dividing the total value of the assets in a fund's portfolio by the fund's outstanding shares. An "as of trade is the purchase or sale of mutual fund shares at an NAV different than the present NAV and results in an artificial dilution (or increase) in the overall value of the fund.
Proper uses of "as of trading to correct trading errors are not themselves illegal. In order to protect mutual fund shareholders from being harmed by such "as of trades, Putnam had a "penny-per-share" policy which required that the party responsible for the error which necessitated the "as of trade to compensate for any harm if the value of the fund's per share NAV was reduced by at least one penny per share.
In this case, the SEC alleges that the harm caused by the "as of trades exceeded the penny-per-share policy and resulted in significant losses to Putnam's other mutual funds: $2.7M to the Research Fund, and a combined loss of $450,000 to the George Putnam Fund of Boston and three portfolios within the Asset Allocation Fund.
In order to conceal the costs of the "as of' trades to the unknowing shareholders of the mutual funds, the defendants allegedly *347 agreed to further the fraudulent scheme by using various accounting adjustments to hide the incurred losses. Durgarian directed McCracken to find accounting adjustments that could be used to move money back into those mutual funds so that the net losses would drop below one penny-per-share and conceal the dilution caused by the "as of trades. According to the allegations, McCracken successfully directed his employees to identify accounting adjustments.
The Complaint alleges that the defendants also took further steps to conceal the fraudulent scheme. Following the execution of the "as of trades and accounting adjustments, Durgarian made several periodic certifications to the SEC that he had
disclosed to each registrant's auditors and the audit committee of each registrant's board of directors . . . any fraud, whether or not material, that involves management or other employees who have a significant role in each registrant's internal controls.
Those certifications were filed with the SEC on numerous occasions in 2002 and 2003. Furthermore, in 2003, in response to an unrelated Putnam internal audit of the defined contribution plan servicing unit, defendants Childs, Crain and Papa made similar certifications to the auditors. The Complaint alleges that the four certifying defendants knew about the "as of trades and the accounting adjustments and that therefore, the certifications were false.
The alleged fraud first came to the attention of Putnam and the SEC in January, 2004 when defendant Crain left a message for an internal Putnam auditor which sparked an internal investigation. The investigation resulted in a correction to the price of the Research Fund, disclosure of the conduct to the Combined Plan investors, termination of the employment of defendants Durgarian, Papa and Hogan, and compensatory payments to the mutual funds, the Combined Plan and all affected shareholders.
The Complaint alleges three claims against all six defendants: 1) Violation of the Securities Exchange Act Section 10(b), 2) Violation of Securities Act Section 17(a) and 3) Aiding and Abetting Putnam's Uncharged Violations of the Securities Exchange Act Section 10(b). Moreover, the SEC alleges against defendant Durgarian, additional claims of violating the Investment Company Act Sections 34(b) and 37.
II. Motions to Dismiss
Each of the defendants has filed an individual motion to dismiss the charges against him or her. The defendants have filed a joint memorandum with respect to the three claims alleged against the group and, except for defendant Papa, have filed individual memoranda of law in support of their separate motions. Durgarian also filed a separate memorandum of law to address the two claims brought against him alone.
All of the defendants contend that the Complaint should be dismissed pursuant to Fed.R.Civ.P. 9(b), failure to state fraud claims with particularity, and Fed.R.Civ.P. 12(b)(6), failure to state a claim upon which relief can be granted.
A. Heightened Pleading Standard
Rule 9(b) of the Federal Rules of Civil Procedure requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The instant enforcement action by the SEC involves claims of securities fraud, and thus, the heightened pleading requirements apply. The First Circuit Court of Appeals has interpreted the Rule 9(b) requirements to *348 include "specification of the time, place, and content of an alleged false representation." Greebel v. FTP Software, Inc., 194 F.3d 185, 193 (1st Cir.1999)(quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir.1980)). In applying that standard to securities fraud actions, this circuit has been notably strict and rigorous. Greebel, 194 F.3d at 193.
Given the number of defendants and the several claims brought by the SEC, the Court will address the heightened pleading standard only with respect to those individual claims that fail to meet its requirements.
B. Legal Standard
A court may not dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir.1998)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In considering the merits of a motion to dismiss, the court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. Nollet v. Justices of the Trial Court of Mass., 83 F.Supp.2d 204, 208 (D.Mass.2000) aff'd, 248 F.3d 1127 (1st Cir.2000).
Furthermore, the court must "assume the truth of all well-pleaded facts and indulge all reasonable inferences that fit the plaintiffs stated theory of liability." In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir.2003). If the facts in the complaint are sufficient to state a cause of action, a motion to dismiss the complaint must be denied. See Nollet, 83 F.Supp.2d at 208.
C. Claim One: Section 10(b) of the Securities Exchange Act and Rule 10b-5
Claim One, charges all of the defendants with violation of Section 10(b) of the Securities Exchange Act and Rule 10b-5, issued thereunder. The Court begins with the text of Section 10(b):
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or the mails, or of any facility of any national securities exchange . . .
(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
15 U.S.C. § 78j. Rule 10b-5 states:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
17 C.F.R. Ch. II § 240.10b-5. The defendants contend that the SEC fails to allege *349 facts sufficient to establish fraudulent conduct in support of any of the activities prohibited by Rule 10b-5.
1. Material Misstatements
The Complaint asserts that all of the defendants made "untrue statements of material, fact", yet, except with respect to defendant Durgarian, the SEC fails to allege with sufficient particularity any specific material statements made by the other defendants. The Court concludes, therefore, that the Complaint alleges material misstatements only against Durgarian.
With respect to claims against him, the SEC alleges that on September 27 and November, 25, 2002, and on March 26, May 27, August 20 and September 23, 2003, Durgarian falsely certified that he had disclosed
any fraud, whether or not material that involves management or other employees who have a significant role in [the fund's] internal controls.
The materiality of the certifications is not disputed; the certifications were submitted to the SEC and, thus, were available to the public and investors. See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 862 (2d Cir.1968)(establishing that a material misrepresentation is one that is reasonably expected to be disseminated to the public and influence investors).
Although Durgarian concedes that the certifications are material, he challenges their falsity. He contends both that they were true and that the SEC has failed to allege that they were false. In order for his certifications to have been false, the January, 2001, actions of the defendants must have constituted a fraud. According to Durgarian, because the SEC fails to allege the fraudulent scheme itself, it cannot demonstrate that his certifications of the absence of any fraud are false. While appealing in logic, his argument is ultimately to no avail because, as the Court hereinafter concludes, the SEC has sufficiently alleged a scheme to defraud. Accordingly, the SEC has also adequately alleged that Durgarian made material misstatements in his certifications.
2. Material Omissions
The SEC alleges that all of the defendants failed to disclose material facts necessary to make "statements made, in light of the circumstances under which they were made, not misleading."
A statement or omission is material if there is "substantial likelihood that a reasonable investor would consider it important in making an investment decision." See SEC v. PIMCO Advisors Fund Mgmt. LLC, 341 F.Supp.2d 454, 464 (S.D.N.Y.2004)(citing Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)). For a material omission to rise to the level of a § 10b violation, the SEC must also demonstrate that the defendant had a duty to disclose. See Garvey v. Arkoosh, 354 F.Supp.2d 73, 80 (D.Mass.2005)("[s]ilence, absent a duty to disclose, is not misleading").
In this case, the SEC alleges that the defendants failed to disclose material information to both the Combined Plan and the Putnam mutual funds that were affected by the transactions. The. SEC contends that none of the defendants informed representatives of the Combined Plan that its assets had not been invested until January 3 and that the fund was only partially compensated for the shortfall by shifting money from other mutual funds. With respect to the mutual funds, the SEC contends that none of the defendants informed those funds that Putnam had transferred money into another client's account.
*350 First, the defendants dispute the materiality of the alleged omissions. They argue that the alleged losses are not sums that a reasonable shareholder would consider important and, therefore, are immaterial. In support, the defendants direct the Court's attention to a decision by the District of Columbia Circuit Court of Appeals which ruled that a penny-per-share difference was not material. SEC v. Steadman, 967 F.2d 636, 643 (D.C.Cir.1992)("We cannot imagine that a reasonable investor would think the difference between $99.54 and $99.53 a share important.") The Court finds the case to be unpersuasive because Steadman involved allegations that an investment fund had failed to book liabilities for penalties resulting from their failure to register under state Blue Sky laws. Id. While the court stated that a failure to disclose the penalties would translate into a penny-per-share loss, which is immaterial, it went on to state that the materiality of the sum, $694,000, was not disputed by either party. Steadman, 967 F.2d at 644. Similarly, in this case, the Complaint alleges that the defendants acted in a manner that caused significant losses, including their failure to inform the Combined Plan of an estimated $4M loss and the scheme to conduct "as of' trades which caused an aggregate $2.7M loss to the Research Fund. Those losses are clearly material.
Second, the defendants contend that the SEC fails to allege that they had an individual duty to disclose the information. On that point, the Court agrees with the defendants that the SEC has failed to plead with sufficient particularity.
Absent a duty to disclose, there can be no primary violation based on material omission. The SEC contends, generally, that the defendants' fiduciary duties arise out of Putnam's fiduciary duties to the Combined Plan and the mutual funds based on Putnam's status as an agent and trustee. The Complaint alleges that Putnam was an agent for the Combined Plan and the mutual funds and was designated as a Trustee of a trust the res of which was assets transferred by the Combined Plan.
By applying principles of agency law, the SEC argues that each of the defendants, as employees of Putnam and sub-agents to the Combined Plan and the mutual funds, also had a fiduciary duty to disclose. Under Massachusetts law, employees of an agent can be sub-agents in a fiduciary relationship toward a principle, and the sub-agents can be subject to liabilities of the agent. Frontier Mgmt. Co., Inc. v. Balboa Ins. Co., 658 F.Supp. 987, 990 (D.Mass.1986)(citing Rayden Engineering Corp. v. Church, 337 Mass. 652, 151 N.E.2d 57 (1958)). Because this is a securities fraud case, however, merely alleging that the defendants were employees is insufficient to meet the heightened pleading standard. The Complaint provides little or no detail with respect to the individual defendants and the nature of their work in relation to the affected principals, the Combined Plan and the Putnam mutual funds. Other than providing the executive titles of each of the defendants, the Complaint does not illuminate the nature of those relationships. As such, the Court finds that the SEC fails to plead the alleged violation with the required degree of particularity.
3. Fraudulent Scheme or Device
The central dispute before this Court is' whether the alleged conduct is a violation of Rules 10b-5(a), a device, scheme or artifice to defraud, and (c), an act which operates as a fraud or deceit. As opposed to a Rule 10b-5(b) claim, no false or misleading statement is required, rather primary liability is based on the use of a "fraudulent device" in connection with *351 the sale of securities. 17 C.F.R. Ch. II § 240.10b-5.
The SEC alleges that the defendants engaged in a fraudulent scheme to transfer losses from one client to others and then conceal both the underlying error and the fraudulent transfer. The alleged scheme comprised two parts: first, transferring money through "as of" trades to the Combined Plan at the expense of non-consenting mutual funds and then, covering up the losses to the mutual funds through improper accounting adjustments and false certifications.
The defendants contend that the SEC's allegations of fraud fail because the bases for the alleged scheme, the particular individual transactions, "as of" trades and the accounting adjustments, are not clearly illegal. Rather, as conceded by the SEC in the Complaint, they are accepted practices in the industry. The defendants argue that the SEC, therefore, fails to allege an actionable scheme because the actions themselves are not obviously illegal.
In support, the defendants cite language found in a recent decision by this Court, SEC v. Tambone, 417 F.Supp.2d 127 (D.Mass.2006). Tambone involved an allegation of fraud based on a market timing arrangement that was not disclosed to investors. This Court held that the SEC's allegations did not fall within the category of manipulative devices envisioned by the Supreme Court:
The defect in the SEC's allegations is that market timing arrangements are not the kind of sham transactions which have been held to qualify as schemes to defraud.
Id. at 136. Rather, market timing arrangements themselves had been explicitly determined to be not fraudulent devices. Id. (citing PIMCO, 341 F.Supp.2d at 468). As such, this Court distinguished the market timing arrangements at issue with those cases cited by the SEC by characterizing those cases as involving "some device that was clearly illegal". Tambone, 417 F.Supp.2d at 135-36 (citing cases).
The defendants have interpreted the cited comment as tantamount to a new requirement that a scheme to defraud must be based on conduct that is clearly illegal. That interpretation overstates this Court's description of the cases cited by the SEC and the defendants cite no authority to support such a broad, application of the holding in Tambone; neither the statute nor the accompanying rules require a showing of illegality.
Given the confusion surrounding its discussion in Tambone, the Court hastens to clarify its understanding of the statute. The statute explicitly requires the SEC to allege that the defendants engaged in some kind of "manipulative device or contrivance." 15 U.S.C. § 78j. See also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 n. 20-21, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In Santa Fe Industries, Inc. v. Green, the Supreme Court defined manipulation as:
virtually a term of art when used in connection with securities markets . . . [and] refers generally to practices, such as wash sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting market activity.
430 U.S. 462, 476, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977)(internal quotation marks omitted).
While the defendants are correct to note that wash sales, matched orders and rigged prices are illegal, they are used by the Supreme Court as examples of practices which "are intended to mislead investors." It was that intent to mislead that caused the Supreme Court to stress that the purpose of Section 10(b) was to "prohibit *352 the full range of ingenious devices that might be used to manipulate securities prices." Id. at 477, 97 S.Ct. 1292.
Applying this understanding of the statute, United States District Judge Patti Saris held that Section 10(b) and. Rule 10b-5 made liable participation in a
manipulative, or deceptive scheme by directly or indirectly employing a manipulative or deceptive device (like the creation or financing of a sham entity) intended to mislead investors. . . .
In re Lernout & Hauspie Securities Litigation, 236 F.Supp.2d 161, 173 (D.Mass. 2003). In analyzing the SEC's alleged scheme to defraud, the Court must determine whether such a device was used and whether there was the requisite intent to mislead. The legality of a particular device is obviously an important factor to consider when determining whether a deceptive practice was implemented but it is not itself conclusive.
Moreover, the terms of Rule 10b-5(c) militate against requiring a fraudulent scheme to involve clearly illegal conduct. Section (c) prohibits "any act, practice, or course of business which operates as a fraud or, deceit". While the Complaint concedes that the "as or trades and accounting adjustments, alone, are not per se illegal, the SEC appropriately focuses on the improper usage of such trades to conceal the Combined Plan's shortfall by transferring money from unknowing and unconsenting owners of mutual funds rather than admitting an error or incurring costs at Putnam. The SEC is correct when it accuses the defendants of myopic consideration of "as of" trades and accounting adjustments. It is not the fact that such trades or adjustments were made that is the alleged scheme but rather the deceptive purpose that underlies those trades and adjustments.
The SEC alleges that all of the defendants met in January, 2001 to discuss a plan to conceal from the Combined Plan the fact that the mutual fund investments were not made on a certain day and thus did not receive the benefit of the equity market upswing, resulting in a loss of approximately $4M. The complaint alleges that the defendants created a scheme by which the $4M shortfall would be accounted for through "as of trades, deflecting the cause of the error away from Putnam and the loss away from the Combined Plan.
While "as of trades themselves are not illegal, the SEC alleges that they were utilized for the purpose of deceiving the Combined Plan investors, to hide the facts and to prevent those investors from realizing that the subject investment was not timely made. While it is true that Putnam has a policy of allowing such "as of trades to correct trading errors, the complaint alleges that the legitimate policy was abused by the defendants for the purpose of deceiving Cardinal, the Combined Plan and other Putnam mutual funds which ultimately bore the cost of those "as of trades.
In order to conceal the effect of the "as of' trades, the defendants allegedly made account adjustments and false certifications. Again, the SEC alleges that the timing of the adjustments was intended to coincide with the "as of' trades in order to conceal further the defendants' manipulative actions. None of those actions nor the resulting negative financial impact, was revealed to the investors of the adversely-affected mutual funds or to Cardinal or the Combined Plan. The defendants' arguments that the SEC insufficiently alleged a fraudulent scheme is unavailing.
4. Substantial Participation and Scienter
In order to state a claim that a defendant is a "primary violator", the complaint *353 must allege not only a fraudulent scheme but also facts to demonstrate that the defendant under consideration "substantially participated" in the alleged scheme and acted with scienter. See In re Lernout, 230 F.Supp.2d at 174. In other words, the SEC must allege how each of the defendants' actions had a principal purpose and effect upon creating a false appearance in fact in furtherance of the scheme to defraud. See Quaak v. Dexia S.A., 357 F.Supp.2d 330, 342 (D.Mass. 2005).
Furthermore, with respect to alleged securities fraud violations, the SEC must also "set forth facts giving rise to a `strong inference' that the defendants acted with the required state of mind." In re Stone & Webster, Inc., Securities Litigation, 414 F.3d 187, 204 (1st Cir.2005). The SEC must allege facts that each defendant acted with "a mental state embracing intent to deceive, manipulate, or defraud". Ernst, 425 U.S. at 193 n. 12, 96 S.Ct. 1375. In doing so, the SEC must allege more than mere motive and opportunity. In re Cabletron Systems, Inc., 311 F.3d 11, 39 (1st Cir.2002) (motive and opportunity, combined with other circumstances, may create the requisite inference of scienter); Geffon v. Micrion Corp., 249 F.3d 29, 36 & n. 7 (1st Cir.2001).
At times, the Complaint makes particular reference to each of the defendants but on other occasions, refers to them collectively. In order to disentangle the allegations, the Court examines each of the defendants, individually.
a) Karnig H. Durgarian
The Complaint alleges Durgarian's involvement throughout the entire scheme. In addition to attending the January, 2001, meeting and agreeing with the others to execute the scheme, he allegedly directed Hogan and McCracken to conceal the shortfall through the "as of trades and account adjustments and explicitly stated that Putnam would not bear the cost. Thereafter, he allegedly expressed his approval of the successful account adjustments, stating that "accountants are magicians" when the adjustments succeeded in concealing the "as of' trades. The Complaint sufficiently alleges that Durgarian knew of the shortfall in the Combined Plan and the losses suffered by the Putnam mutual funds as a result of the "as of" transactions and provides a strong indication that Durgarian acted with the intent to deceive, manipulate or defraud.
Thus, the SEC has pled with sufficient particularity Durgarian's substantial participation in the alleged fraudulent scheme as well as strong support for an inference that he acted with fraudulent intent.
b) Donald F. McCracken
With respect to the "as of" trades, there is little beyond the allegation that McCracken attended the January, 2001, meeting to indicate his alleged involvement. However, the Complaint does allege that McCracken was actively involved in directing and executing the expense account adjustments allegedly intended to mask the losses resulting from the "as of" trades. While involvement with the account adjustments, alone, may not constitute substantial participation, the SEC clearly alleges that McCracken attended the January, 2001, meeting and knew of the scheme then devised and thus, acted in furtherance of it.
Contrary to McCracken's argument that the deception alleged in the Complaint is unrelated to the adjustment of expenses, the SEC clearly alleges that he participated in the January, 2001 meetings and knew about the need to conceal the diluted NAV resulting from the "as of trades. The Complaint even alleges that he told *354 Durgarian that he would "take care of it" and goes on to outline how McCracken directed employees to identify appropriate expense accrual adjustments and rejected an employee's answer that she could not identify sufficient adjustments. While the SEC does not specify exactly which specific expense adjustments were made or which were unwarranted and inappropriate, it provides enough specificity with regard to McCracken's role in directing the adjustments and his improper intent to further the deception. Moreover, in outlining all of those acts, the Complaint sufficiently alleges that McCracken acted with the requisite state of mind embracing an intent to deceive required to support a securities fraud violation.
c) Ronald B. Hogan
As the alleged architect of the "as of transactions, Hogan is clearly purported to be a substantial participant in the alleged scheme to defraud. While. Hogan responds that the "as of" transactions which he allegedly coordinated are not illegal per se, the SEC clearly alleges that he attended the January, 2001 meeting and was aware of the shortfall caused by the one-day delay. Hogan was, therefore, also aware of how his actions executing the transactions would further the scheme to conceal the shortfall from the investors in the Combined Plan. Furthermore, the Complaint makes clear that Hogan also allegedly discussed the need for expense adjustments to conceal the "as of" trades.
By reference to the prior discussion about the legality of the "as of' transactions and account adjustments, Hogan is still liable for the actions that he allegedly took to advance the scheme to defraud. The SEC alleges that he devised and then implemented the transactions required to further the deception. Describing Hogan as the alleged "architect" of the transaction scheme, the SEC has sufficiently alleged both his substantial participation and a reasonably strong inference that he acted with fraudulent intent.
d) Kevin F. Crain, Virginia A. Papa and Sandra G. Childs
The Court finds that, beyond their attendance at the January, 2001, meeting, the Complaint identifies no explicit acts taken by defendants Crain, Papa and Childs ("these defendants") in furtherance of the fraudulent scheme. While the Complaint contends generally that all of the defendants listened, discussed and then agreed upon the fraudulent scheme, there are no explicit details outlining specific actions taken by these defendants.
In order to constitute a primary violation of securities laws on the basis of a scheme to defraud, the SEC must make an explicit allegation of a manipulative act committed by the defendant in furtherance of the scheme. Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 177, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). While the other defendants are named for their roles in devising, approving or implementing the scheme, the Complaint makes only vague allusions regarding the involvement of these defendants. They persuasively contend that the SEC has inappropriately lumped them together with the other three defendants and that the generalized allegation of attending a meeting is insufficient to demonstrate substantial participation in the alleged scheme.
The Complaint does not, however, end there. While there are no specific allegations of actions taken by these defendants in the creation or execution of the "as of transactions or the accounting adjustments, the Complaint includes an entire section dedicated to a discussion of their *355 alleged false certifications.[1] The SEC alleges that these defendants advanced the scheme by continuing to conceal the "as of transactions and accounting adjustments by issuing false certifications to an outside auditor.
In January and February, 2003, Putnam's outside auditor conducted audits, in an unrelated matter, of the defined contribution plan servicing unit of Putnam for the 2001 and 2002 years. These defendants and Durgarian certified that they were "unaware of any uncorrected errors, frauds or illegal acts attributable to" Putnam that had affected its clients. The SEC alleges that because all of the defendants were in attendance at the January, 2001, meeting and, therefore, aware of the cover-up scheme the certifications were not only false but were also intended to conceal the conduct from the auditors.
The Court agrees with the contention of these defendants that the alleged false certifications bearing their signatures are too attenuated to link them to the fraudulent scheme. The SEC provides no allegation linking the signatures to the fraud other than its general assertion that the defendants attended the meeting. The referenced certification letters are the only overt acts alleged in the Complaint against these defendants and, therefore, the only basis on which their substantial participation in the scheme, and thus their liability as primary violators, is predicated.
The Court concludes that the SEC's allegations are insufficient to demonstrate either substantial participation in the scheme or to create a strong inference that the defendants Childs, Craine and Papa acted with the requisite scienter in signing those certifications. See SEC v. Druffner, 353 F.Supp.2d 141, 149-50 (D.Mass.2005)(liability requires proof of a "mental state embracing intent to deceive, manipulate or defraud"). Therefore, the claims alleging primary violations of Section 10(b) of the Securities Exchange Act against defendants Childs, Crain and Papa will be dismissed.
D. Claim Two: Securities Act, Section 17(a)
In Claim Two, the SEC charges all of the defendants with primary violations of Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a). The requirements for establishing a violation of Section 17(a) are nearly the same as those required for a claim under Securities Exchange Act Section 10(b) and Rule 10b-5 thereunder, although there is no requirement for the SEC to demonstrate scienter with respect to subsections (a)(2) and (a)(3). See Aaron v. SEC, 446 U.S. 680, 681, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980).
In the preceding section, the Court found that the SEC has not sufficiently alleged substantial participation in a fraudulent scheme against defendants Childs, Crain and Papa. For the same reasons, the claims against these defendants alleging violation of Section 17(a) will be dismissed. As for the defendants, Durgarian, McCracken and Hogan, their first defense is that there can be no liability because the Complaint fails to allege that they were offerors or sellers of securities.
The Court begins by reference to the statute which states:
It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of *356 transportation or communication in interstate commerce or by the use of the mails, directly or indirectly
(1) to employ any device, scheme or artifice to defraud, or
(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.
15 U.S.C. § 77q(a). Defendants contend that the language in Section 17(a) prohibits fraud only "in the offer or sale of any securities", in contrast to Section 10(b) of the Securities Exchange Act, which prohibits fraud "in connection with the purchase or sale of any security". (emphasis added).
In support of its interpretation, the defendants attempt to distinguish Section 17(a) from Section 10(b) and assert that the language should be interpreted narrowly to apply only in cases involving a securities seller, as in the case of Section 12(1) and (2). Despite the strenuous and persistent effort of the defendants, the Court ultimately is unpersuaded.
First, Section 17(a) imposes liability against "any person [who commits a fraud] in the offer or sale" of a security, 15 U.S.C. § 77q(a)(emphasis added), as opposed to Section 12 which imposes liability against "any person who [fraudulently] offers or sells a security", 15 U.S.C. § 77l(2)(emphasis added). While the provisions are similar, the subtle difference supports the SEC's interpretation. Section 12 makes clear that "offers or sells a security" directly modifies "any person". In contrast, Section 17(a) is not as limited; it imposes liability on "any person" who commits particular actions "in the offer or sale" of securities. While, on its face, the distinction appears obscure, one need only refer to Section 10(b) to realize that it also applies to more than just sellers when it refers to: "any person . . . in connection with the purchase or sale of any security."
Second, with specific reference to the distinction between Section 17(a) ("in the offer or sale") and Section 10(b) ("in connection with"), the Supreme Court has stated that it has "on occasion used the terms interchangeably." United States v. Naftalin, 441 U.S. 768, 773 n. 4, 99 S.Ct. 2077, 60 L.Ed.2d 624 (1979). In Naftalin, the Supreme Court explained that the Section 17(a) language was "expansive enough to encompass the entire selling process, including the seller/agent transaction." Id. at 773, 99 S.Ct. 2077; see also SEC v. Morris, 2005 WL 2000665 at *7 (S.D.Tex. Aug.18, 2005)(rejecting the same distinction between Section 17(a) and 10(b) and noting that Section 17(a) does not require proof that fraud occurred at any particular phase of selling).
The Court concludes that in alleging the elements of liability for Section 10(b), the SEC has also sufficiently alleged liability under 17(a), and, therefore, defendants Durgarian, McCracken and Hogan may be found liable for the alleged fraudulent scheme on that count.
E. Claim Five: Aiding and Abetting Putnam's Uncharged Violations
The fifth claim charges all of the defendants with aiding and abetting Putnam in violating Securities Exchange Act Section 10(b) and Rule 10b-5, thereunder, by knowingly rendering substantial assistance in those violations. The SEC has not charged Putnam with those alleged violations.
*357 The three principal elements required to establish liability for aiding and abetting a violation of Section 10(b) and Rule 10b-5 are: 1) that a securities violation was committed by a primary wrongdoer, 2) that the aider and abettor provided substantial assistance to the primary violator and 3) that the aider and abettor provided such assistance knowingly or recklessly. See Druffner, 353 F.Supp.2d at 150; see also Graham v. SEC, 222 F.3d 994, 1000 (D.C.Cir.2000)(citing cases) (recognizing those three principal requirements, although the elements have been "variously formulated").
The Court finds that the allegations in the Complaint, if proven, support the conclusion that Putnam is liable for primary violations of Section 10(b) and Rule 10b-5, thereunder. The Complaint alleges that. 1) Putnam made material omissions and violated its fiduciary duty to the Combined Plan and the Putnam mutual funds and 2) Putnam, through its employees, engaged in the aforementioned scheme to deceive and defraud investors. The Court concludes that both of those claims are supported by sufficient factual allegations in the Complaint. Although the material omissions claim against the individual defendants, was not pled with the requisite particularity, the Complaint sufficiently alleges Putnam's relationship to the Combined Plan (as agent and trustee) and the Putnam mutual funds (as agent).
The scienter of corporate entities such as Putnam is "ascertained through the mental state of its management". PIMCO, 341 F.Supp.2d at 471. The Complaint alleges sufficient facts to support a strong inference that the defendants, executives at Putnam, acted with the intent to conceal the shortfall from the Combined Plan and the losses resulting from the improper "as of trades. As such, the aiding and abetting claims against the defendants cannot be dismissed for failure to allege a primary violation.
The second and third elements require proof that the alleged aiders and abetters provided substantial assistance and acted with the requisite scienter. Similar to the Court's conclusion with respect to Section 10(b) liability, the Court finds that the SEC has failed to allege sufficiently that defendants Childs, Crain and Papa provided knowing and substantial assistance regarding either the fraudulent scheme or the material omissions. The Complaint alleges only general statements about their attendance at the meetings, agreement to the plan and failures to make appropriate disclosures to the Combined Plan and the Putnam mutual funds. As alleged, such conclusory statements are insufficient to make those defendants secondarily liable. In contrast, the Complaint does provide specific examples of affirmative conduct by defendants Durgarian, McCracken and Hogan to support the charge of secondary liability.
The Court will, therefore, allow the motions to dismiss Claim Five with respect to defendants Childs, Crain and Papa only.
F. Investment Act Claims Against Durgarian
Defendant Durgarian, alone, moves the Court to dismiss the two additional claims against him. Count III alleges violation of Investment Company Act ("ICA") § 34(b), Destruction and Falsification of Reports and Records, and Count IV alleges violation of ICA § 37, Larceny and Embezzlement.
1. Section 34(b) Claim
In Count III of the Complaint, the SEC asserts a claim against Durgarian for violation of the ICA § 34(b) based on materially false and misleading statements *358 "in a registration statement, application, report, account record or other document filed or transmitted pursuant" to the Act. The statute provides:
It shall be unlawful for any person to make any untrue statement of material fact in any registration, statement, application, report, account, record or other document filed or transmitted pursuant to this subchapter. . . . It shall be unlawful for any person so filing, transmitting, or keeping any such document to omit to state therein any fact necessary in order to prevent the statements made therein, in the light of the circumstances under which they were made, from being materially misleading.
15 U.S.C. § 80a-33(b).
As an initial matter, the Court rejects Durgarian's contention that the claim is not pled with sufficient particularity. The SEC alleges in its complaint that Durgarian made false certifications on September 27 and November 25, 2002 (three separate certifications), and March 26, May 27, August 20 and September 23, 2003. On all of those occasions, Durgarian filed certifications with the Commission stating that he had
disclosed . . . any fraud, whether or not material, that involves management or other employees who have a significant role in each registrant's internal controls.
Having indicated the time, method and content of the alleged false misrepresentations, the SEC has met the Rule 9(b) pleading requirements with respect to this count.
Durgarian also contends that the count should be dismissed because the SEC fails to allege any untrue statement of material fact or actionable omission. The Court finds that argument unpersuasive. Unlike the internal audit certifications made by defendants Crain, Papa and Childs, Durgarian's allegedly false certifications were submitted to the SEC and thereafter, made available to the public and investors. Therefore, if proven to be false, Durgarian's certifications are clearly material. The Court also rejects Durgarian's final argument that the alleged accounting adjustments and "as of" trades were not clearly illegal and that, therefore, his certifications were not false. Because the Court has already concluded that the SEC has alleged facts sufficient to withstand a motion to dismiss with respect to the alleged scheme to defraud, the Court concludes that the SEC is entitled to pursue its § 34 claim. Accordingly, the Court will deny defendant Durgarian's motion to dismiss this count.
2. Section 37 Claim
In Count IV of the Complaint, the SEC asserts a claim against Durgarian for violation of the ICA § 37. That section states:
Whoever steals, unlawfully abstracts, unlawfully and willfully converts to his own use or to the use of another, or embezzles any of the moneys, funds, securities, credits, property, or assets of any registered investment company shall be deemed guilty of a crime, and upon conviction thereof shall be subject to the penalties provided in section 80a-48 of this title. A judgment of conviction or acquittal on the merits under the laws of any State shall be a bar to any prosecution under this section for the same act or acts.
15 U.S.C. § 80a-36(b). Section 80a-48 provides a penalty that "upon conviction [a violator will] be fined not more than $10,000 or imprisoned not more than five years, or both".
Directing the Court to the statutory language "guilty of a crime" and "upon conviction", *359 Durgarian argues that this section is a criminal statute and does not create a civil cause of action or civil remedies. As such, prosecution in these proceedings would result in a deprivation of those protections afforded to defendants in criminal proceedings, in violation of the constitutional right to due process. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)(a finding beyond a reasonable doubt as to every element of a crime). The SEC argues that other federal courts have recognized a civil cause of action for Section 37 violations. See, e.g., SEC v. Lawbaugh, 359 F.Supp.2d 418 (D.Md.2005), Seidel v. Lee, 1996 WL 578449, at *5 (D.Del. Aug.16, 1996), SEC v. Commonwealth Chem. Securities, 410 F.Supp. 1002 (S.D.N.Y.1976).
In support of his reading of the statute, Durgarian analogizes the present SEC enforcement action with those involving claims under the ICA brought by private investors. See, e.g., Forsythe v. Sun Life Financial, Inc., 417 F.Supp.2d 100, 108 (D.Mass.2006)(no private right of action under Sections 34(b), 36(a), 48(a)); Yameen v. Eaton Vance Distributors, Inc., 394 F.Supp.2d 350, 352 n. 1. (D.Mass. 2005)(no private right of action under Section 36(a)). In rejecting an implied private right of action in those cases, the Court looked to the Supreme Court's holding in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) which requires that any implied right of action must be found in the "text and structure" of the statute to insure that the court did not create a cause of action "no matter how desirable that might be as a policy matter, or how compatible with the statute." Id. at 286, 121 S.Ct. 1511.
The Court concludes that those cases are unpersuasive in the present context. Unlike those cases which involved actions brought by private investors and litigants seeking to impose liability through the ICA, this case involves an enforcement action brought by the SEC. In Forsythe, another session of this District Court recognized the SEC's unique role, stating that "the responsibility for the overall enforcement of the ICA statutory scheme is not given to private individuals but rather to the SEC." 417 F.Supp.2d at 107. Moreover, broad authority for the SEC to investigate and enforce compliance is underscored by the language in Section 80a-41, which states:
The Commission may make such investigations as it deems necessary to determine whether any person has violated or is about to violate any provision of this subchapter or of any rule, regulation. . . .
Whenever it shall appear to the Commission that any person has engaged or is about to engage in any act or practice constituting a violation . . . [the Commission] may in its discretion bring an action . . . to enjoin such acts or practices and to enforce compliance with this subchapter or any rule, regulation, or order hereunder.
15 U.S.C. 80a-41(a), (d).
In this case, the SEC seeks to use its authority to "permanently restrain[] and enjoin[] defendant Durgarian from violating, directly or indirectly, . . . [Section] 37 of the Investment Company Act." The Court finds that while Section 37 provides for criminal penalties, the SEC may bring a civil action seeking to enjoin a defendant under this section.
With respect to the elements of a Section 37 violation, the Court finds that the SEC has alleged sufficient facts in support of its claim. As used in Section 37, a conversion "includes use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use." Commonwealth Chem. Securities, *360 410 F.Supp. at 1019. As applied in this case, the Court finds that the SEC's allegation of fraud contains sufficient facts from which one might infer that the alleged willful misconduct of Durgarian, in moving and manipulating the assets of mutual funds to conceal the shortfall in the Combined Plan and resulting in a financial loss to the funds, constitutes, if proven, a conversion of assets.
III. Additional Motions
In a separate motion, Defendant Durgarian moves the Court, pursuant to Fed.R.Civ.P. 8(a) and 12(f) to strike two allegations made in the Complaint involving: 1) the termination of Durgarian's employment by Putnam LLC, one of the corporate parents to Putnam, and 2) Durgarian's invocation of his constitutional privilege against self-incrimination during his deposition taken by the SEC. Durgarian contends that the references are gratuitous and superfluous.
The Court has broad discretion to strike comments which are not "substantive elements of the cause of action." Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir.1988). However, such motions are "narrow in scope, disfavored in practice, and not calculated readily to invoke the court's discretion." Boreri v. Fiat, S.p.A., 763 F.2d 17, 23 (1st Cir.1985). Rule 12(f) motions are not typically granted without a showing of prejudice to the moving party. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 at 421-22 (3d ed.2004).
The subject allegations are related to the controversy at hand and the Court finds that there is no showing of undue prejudice. Durgarian's termination from employment is relevant because the Complaint alleges that it resulted from an internal investigation into the alleged fraudulent activity. While adverse inferences drawn from Durgarian's invocation of the Fifth Amendment would be barred in a criminal proceeding, this is a civil enforcement action and no such privilege exists. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 "L.Ed.2d 810 (1976)("the Fifth Amendment does not forbid adverse inferences against parties . . . where the privilege is claimed by a party to a Civil cause") (internal quotation removed).
Therefore, the Court will deny the motion to strike the subject assertions in the Complaint.
In a separate motion, the SEC moves the Court for leave to file an amended complaint in the event the Court allows any of the motions to dismiss. The Court concludes that there is no basis for allowing the SEC to file an amended Complaint. The SEC provides no indication of what additional information would be included in an amended complaint nor why the Court should grant such leave. The Court agrees with the defendants that the SEC is not entitled to a "blank check" leave to amend.
ORDER
For the foregoing reasons, the motions to dismiss of defendants Crain (Docket No. 25), Papa (Docket No. 35) and Childs (Docket No. 36) are, ALLOWED, but the motions to dismiss of defendants Durgarian (Docket No. 33), McCracken (Docket No. 27) and Hogan (Docket No. 31) are DENIED. The motion of defendant Durgarian to strike certain references from the complaint (Docket No. 28) and the SEC's motion for leave to file an amended complaint (Docket No. 43) are DENIED.
So ordered.
NOTES
[1] Although Durgarian also signed those certifications, the focus here is on the defendants, Crain, Papa and Childs.
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265 U.S. 526 (1924)
WILLIAM R. WARNER & COMPANY
v.
ELI LILLY & COMPANY.
No. 32.
Supreme Court of United States.
Argued April 28, 29, 1924.
Decided June 9, 1924.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
*527 Mr. George W. Wickersham and Mr. Francis Rawle, with whom Mr. Roger S. Baldwin and Mr. Joseph W. Henderson were on the briefs, for petitioner.
Mr. E.W. Bradford for respondent.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Respondent is a corporation engaged in the manufacture and sale of pharmaceutical and chemical products. In 1899 it began and has ever since continued to make and sell a liquid preparation of quinine, in combination with other substances, including yerba-santa and chocolate, under the name of Coco-Quinine.
Petitioner also is a pharmaceutical and chemical manufacturer. The Pfeiffer Chemical Company, Searle & Hereth Company and petitioner are under the same ownership and control. The first named company in 1906 began the manufacture of a liquid preparation which is substantially the same as respondent's preparation and *528 which was put upon the market under the name of Quin-Coco. Two years later the Searle & Hereth Company engaged in the manufacture of the preparation, which ever since has been sold and distributed by petitioner.
This suit was brought in the Federal District Court for the Eastern District of Pennsylvania by respondent to enjoin petitioner from continuing to manufacture and sell the preparation if flavored or colored with chocolate; and also from using the name Quin-Coco, on the ground that it was an infringement of the name Coco-Quinine, to the use of which respondent had acquired an exclusive right. The District Court decided against respondent upon both grounds. 268 Fed. 156. On appeal the Court of Appeals ruled with the District Court upon the issue of infringement but reversed the decree upon that of unfair competition. 275 Fed. 752.
The entire record is here and both questions are open for consideration.
First. We agree with the courts below that the charge of infringement was not sustained. The name Coco-Quinine is descriptive of the ingredients which enter into the preparation. The same is equally true of the name Quin-Coco. A name which is merely descriptive of the ingredients, qualities or characteristics of an article of trade cannot be appropriated as a trademark and the exclusive use of it afforded legal protection. The use of a similar name by another to truthfully describe his own product does not constitute a legal or moral wrong, even if its effect be to cause the public to mistake the origin or ownership of the product. Canal Co. v. Clark, 13 Wall. 311, 323, 327; Standard Paint Co. v. Trinidad Asphalt Co., 220 U.S. 446, 453; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 140.
Second. The issue of unfair competition, on which the courts below differed, presents a question of more difficulty. The testimony is voluminous, more than two *529 hundred witnesses having been examined; but, since the question with which we are now dealing is primarily one of fact, we have found it necessary to examine and consider it. Nothing is to be gained by reviewing the evidence at length, and we shall do no more than summarize the facts upon which we have reached our conclusions.
The use of chocolate as an ingredient has a three-fold effect: It imparts to the preparation a distinctive color and a distinctive flavor, and, to some extent, operates as a medium to suspend the quinine and prevent its precipitation. It has no therapeutic value; but it supplies the mixture with a quality of palatability for which there is no equally satisfactory substitute. Respondent, by laboratory experiments, first developed the idea of the addition of chocolate to the preparation for the purpose of giving it a characteristic color and an agreeable flavor. There was at the time no liquid preparation of quinine on the market containing chocolate, though there is evidence that it was sometimes so made up by druggists when called for. There is some evidence that petitioner endeavored by experiments to produce a preparation of the exact color and taste of that produced by respondent; and there is evidence in contradiction. We do not, however, regard it as important to determine upon which side lies the greater weight. Petitioner, in fact, did produce a preparation by the use of chocolate so exactly like that of respondent that they were incapable of being distinguished by ordinary sight or taste. By various trade methods an extensive and valuable market for the sale of respondent's preparation already had been established when the preparation of petitioner was put on the market. It is apparent, from a consideration of the testimony, that the efforts of petitioner to create a market for Quin-Coco were directed not so much to showing the merits of that preparation as they were to demonstrating its practical identity with Coco-Quinine, and, since it was sold at a *530 lower price, inducing the purchasing druggist, in his own interest, to substitute, as far as he could, the former for the latter. In other words, petitioner sought to avail itself of the favorable repute which had been established for respondent's preparation in order to sell its own. Petitioner's salesmen appeared more anxious to convince the druggists with whom they were dealing that Quin-Coco was a good substitute for Coco-Quinine and was cheaper, than they were to independently demonstrate its merits. The evidence establishes by a fair preponderance that some of petitioner's salesmen suggested that, without danger of detection, prescriptions and orders for Coco-Quinine could be filled by substituting Quin-Coco. More often, however, the feasibility of such a course was brought to the mind of the druggist by pointing out the identity of the two preparations and the enhanced profit to be made by selling Quin-Coco because of its lower price. There is much conflict in the testimony; but on the whole it fairly appears that petitioner's agents induced the substitution, either in direct terms or by suggestion or insinuation. Sales to druggists are in original bottles bearing clearly distinguishing labels and there is no suggestion of deception in those transactions; but sales to the ultimate purchasers are of the product in its naked form out of the bottle; and the testimony discloses many instances of passing off by retail druggists of petitioner's preparation when respondent's preparation was called for. That no deception was practiced on the retail dealers, and that they knew exactly what they were getting is of no consequence. The wrong was in designedly enabling the dealers to palm off the preparation as that of the respondent. Coca Cola Co. v. Gay-Ola Co., 200 Fed. 720; N.K. Fairbank Co. v. R.W. Bell Manuf'g. Co., 77 Fed. 869, 875, 877-878; Lever v. Goodwin, L.R. 36 Ch. Div. 1, 3; Enoch Morgan's Sons Co. v. Whittier-Coburn Co., 118 Fed. 657, 661. One who induces another to commit a *531 fraud and furnishes the means of consummating it is equally guilty and liable for the injury. Hostetter Co. v. Brueggeman-Reinert Distilling Co., 46 Fed. 188, 189.
The charge of unfair competition being established, it follows that equity will afford relief by injunction to prevent such unfair competition for the future. Several acts of unfair competition having been shown, we are warranted in concluding that petitioner is willing to continue that course of conduct, unless restrained. Hennessy v. Wine Growers' Ass'n, 212 Fed. 308, 311. It remains to consider the character and extent of this relief.
Respondent has no exclusive right to the use of its formula. Chocolate is used as an ingredient not alone for the purpose of imparting a distinctive color, but for the purpose also of making the preparation peculiarly agreeable to the palate, to say nothing of its effect as a suspending medium. While it is not a medicinal element in the preparation, it serves a substantial and desirable use, which prevents it from being a mere matter of dress. It does not merely serve the incidental use of identifying the respondent's preparation, Coca Cola Co. v. Gay-Ola Co., supra, p. 724, and it is doubtful whether it should be called a non-essential. The petitioner or anyone else is at liberty under the law to manufacture and market an exactly similar preparation containing chocolate and to notify the public that it is being done. Saxlehner v. Wagner, 216 U.S. 375, 380; Chadwick v. Covell, 151 Mass. 190. But the imitator of another's goods must sell them as his own production. He cannot lawfully palm them off on the public as the goods of his competitor. The manufacturer or vendor is entitled to the reputation which his goods have acquired and the public to the means of distinguishing between them and other goods; and protection is accorded against unfair dealing whether there be a technical trademark or not. The wrong is in the sale of the goods of one manufacturer or vendor as those *532 of another. Elgin National Watch Co. v. Illinois Watch Case Co., 179 U.S. 665, 674. If petitioner had been content to manufacture the preparation and let it make its own way in the field of open and fair competition, there would be nothing more to be said. It was not thus content, however, but availed itself of unfair means, either expressly or tacitly, to impose its preparation on the ultimate purchaser as and for the product of respondent.
Nevertheless, the right to which respondent is entitled is that of being protected against unfair competition, not of having the aid of a decree to create or support, or assist in creating or supporting, a monopoly of the sale of a preparation which everyone, including petitioner, is free to make and vend. The legal wrong does not consist in the mere use of chocolate as an ingredient, but in the unfair and fraudulent advantage which is taken of such use to pass off the product as that of respondent. The use dissociated from the fraud is entirely lawful, and it is against the fraud that the injunction lies. But respondent being entitled to relief, is entitled to effective relief; and any doubt in respect of the extent thereof must be resolved in its favor as the innocent producer and against the petitioner, which has shown by its conduct that it is not to be trusted. Clearly, the relief should extend far enough to enjoin petitioner, and its various agents, from, directly or indirectly, representing or suggesting to its customers the feasibility or possibility of passing off Quin-Coco for Coco-Quinine. The Court of Appeals held that petitioner should be unconditionally enjoined from the use of chocolate. We think this goes too far; but, having regard to the past conduct of petitioner, the practices of some druggists to which it has led, and the right of respondent to an effective remedy, we think the decree fairly may require that the original packages sold to druggists shall not only bear labels clearly distinguishing petitioner's bottled product from the bottled product of *533 respondent, but that these labels shall state affirmatively that the preparation is not to be sold or dispensed as Coco-Quinine or be used in filling prescriptions or orders calling for the latter. With these general suggestions, the details and form of the injunction can be more satisfactorily determined by the District Court. The decree of the Court of Appeals is reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion.
Reversed.
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770 F.2d 159
Appalachian Power Co.v.Public Service Com'n of West Virginia
85-1352
United States Court of Appeals,Fourth Circuit.
7/25/85
1
S.D.W.Va.
AFFIRMED
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237 F.Supp.2d 1132 (2002)
MEDINAH MINING, INC., (n/k/a Medinah Minerals, Inc.), a Nevada corporation; Les Price, an individual, Plaintiffs,
v.
CHRISTIAN AMUNATEGUI, Frank Cerney, John Melnyk, Jerry Segal, Frank Paletta, Shelly Paletta, James Ingram, J.B. Steele, Michael Craig (Elson), and Does 1-50, individuals; and Black Corporations 1-25, entities, Defendants.
No. CV-N-00-0163ECR(VPC).
United States District Court, D. Nevada.
November 5, 2002.
*1133 Medinah Mining, Inc., North Vancouver, pro se.
Les Price, North Vancouver, pro se.
Frank W. Cerney, British Columbia, pro se.
N. Patrick Flanagan, Hale, Lane, Peek, Dennison, Howard & Anderson, Reno, NV, for James Ingram, Ty Smith.
Devon T. Reese, Laxalt & Nomura, Ltd., Reno, NV, for Bruce Neuman.
Jerry Segal, British Columbia, pro se.
ORDER
EDWARD C. REED, JR., District Judge.
We now consider defendant James Ingram's ("Ingram") motion to dismiss (# 87) for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). Plaintiffs Medinah Mining, Inc. ("Medinah") and Les Price (collectively "Plaintiffs") filed an opposition (# 97) and Ingram replied (# 100).
Background
Plaintiffs filed the present action against sixteen defendants, alleging that they defamed Medinah and Price over the Internet. In addition to defamation, Plaintiffs assert ten related claims. The allegations are factually sparse. Each defendant is alleged to be an "Internet basher" in that each used the Internet to malign and slander Plaintiffs. The complaint alleges that the defamatory Internet communications related to the integrity and business ethics of Plaintiffs and were communicated to all users of the Internet throughout the world.
Ingram is one of the defendants who allegedly posted false and defamatory statements about Medinah and its officers on the Internet. Through affidavits and other evidence, Plaintiffs submit that Ingram posted 1932 false and defamatory statements on a website maintained by Terra Lycos, www.ragingbull.com, between March 1999 and February 2002, under the moniker "Lucky 2505." The Raging Bull website is an interactive site that reports financial news and maintains information on publicly traded companies. Anyone may access the website, read its content, and post information regarding publically traded companies.
It is undisputed that Ingram is a resident of Arkansas. He has never been to Nevada, done business in Nevada, nor does he own any property in Nevada. It is also undisputed that Price is a resident and citizen of Canada; that Medinah is a publically traded company whose headquarters are in California; that its operations are in Chile; and that Medinah is incorporated in Nevada. It has 25 shareholders residing in Nevada and has its annual shareholders' meeting in Nevada.
*1134 Standard
As it does not appear that an evidentiary hearing will be helpful to the court in making its decision, we decide the issue of personal jurisdiction based upon an examination of the written materials submitted by the parties. We note that we consider both the parties' pleadings as well as affidavits and discovery material submitted when reviewing a motion to dismiss for lack of personal jurisdiction under Fed. R.Civ.P. 12(b)(2). As such, Plaintiffs must only demonstrate a prima facie showing of jurisdiction through its pleadings and affidavits to withstand the motion to dismiss. Glencore Grain Rotterdam B.V., v. Shivnath Rai Harnarain Co., 284 F.3d 1114 (9th Cir.2002). We accept as true a plaintiff's uncontroverted allegations and resolve in its favor factual conflicts contained in the parties' filings. Id. at 1119.
Analysis
I. Personal Jurisdiction
An analysis of personal jurisdiction has two components. First, there must be a statute that gives the court authority to exercise jurisdiction. Data Disc Inc. v. Systems Tech. Assoc. Inc., 557 F.2d 1280 (9th Cir.1977). Second, the exercise of jurisdiction must meet Constitutional standards. Id. This court, sitting in diversity, is bound to follow the Nevada Supreme Court's interpretation of Nevada state law. Abraham v. Agusta, S.P.A., 968 F.Supp. 1403, 1407 (D.Nev.1997). The Nevada Supreme Court has interpreted NRS 14.065.1 to allow exercise of personal jurisdiction to the extent permitted by the United States Constitution. Id. However, whether the exercise of jurisdiction comports with the 14th Amendment's due process requirements is a question of federal law. Data Disc, 557 F.2d at 1286-87 n. 3. A court may have personal jurisdiction over a defendant in one of two ways: general or specific. Reebok Int'l Ltd. v. McLaughlin, 49 F.3d 1387, 1391 (9th Cir.1995).
A. General Jurisdiction
If the defendant's activities and contacts with the forum state are substantial, continuous, or systematic, a court will have general jurisdiction over the defendant. Id. Because Plaintiffs do not argue that general jurisdiction exists, we proceed to the parties' arguments concerning specific jurisdiction.
B. Specific Jurisdiction
Specific jurisdiction may be established if the defendant has such "minimum contacts" with the forum state such that he can reasonably anticipate being haled into court there. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). A forum state's exercise of jurisdiction must not offend traditional notions of fair play and substantial justice. Reebok, 49 F.3d at 1391 (citations and internal quotation marks omitted). Specific jurisdiction is established by an analysis of the "quality and nature of the defendant's contacts with the forum state in relation to the cause of action." Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)(citing Data Disc, 557 F.2d at 1287).
The Ninth Circuit uses a three part test to determine if personal jurisdiction exists: (1) the defendant must perform some act or consummate some transaction within the forum or otherwise purposefully avail himself of the privileges of conducting activities in the forum; (2) the claim must arise out of or result from the defendant's forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Bancroft & Masters, Inc. v. Augusta National Inc., 223 F.3d 1082 (9th Cir.2000) (citations omitted).
1. Purposeful Availment In Internet Cases
In order to establish the first element of this test, which is essential to finding jurisdiction, *1135 there must be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Because the parties' main dispute is whether Ingram's alleged posting of defamatory statements on a website is sufficient to meet this first prong, we focus our attention on this issue.
The law governing the propriety of exercising personal jurisdiction over a defendant for alleged conduct that occurs over the Internet is relatively new. Although the principles governing the issue are still evolving, there is a sufficient body of law that guides us through the situation we presently face.
Plaintiffs argue that evidence that Ingram posted allegedly defamatory information on the Internet, which was accessible to residents of Nevada, is enough to show purposeful availment. Plaintiffs rely on TELCO Communications v. An Apple A Day, 977 F.Supp. 404 (E.D.Va.1997) as support for this proposition. As Ingram points out, the Ninth Circuit as well as the majority of jurisdictions, have rejected the holding that merely posting information on an otherwise passive website is sufficient. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir.1997)(finding "something more" is required than merely posting information on a website); see also Vinten v. Jeantot Marine Alliances, S.A., 191 F.Supp.2d 642, 647 n. 10 (D.S.C.2002)(the majority of courts have rejected the conclusion of TELCO that the mere presence of a website is enough to subject the defendant to personal jurisdiction in the forum where the website could be accessed).
Instead, the Ninth Circuit has adopted the analysis announced in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997), to judge whether a defendant can be held amenable to jurisdiction in a foreign state for contacts that occurred over the Internet. The Zippo court announced a sliding scale rule, which focuses on the level of interactivity a defendant employs through its website in doing business with a forum to determine whether the exercise of personal jurisdiction is appropriate. The Ninth Circuit adopted this rationale in Cybersell, stating the "likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and the quality of commercial activity that an entity conducts over the Internet." Id. at 419 (citations omitted).
Therefore, when the defendant is charged with posting information on a passive website, that is, a website where information is simply made available to those interested in accessing it, the exercise of jurisdiction is not proper. Zippo, 952 F.Supp. at 1124. This reasoning is echoed in Cybersell, where the court found that a defendant who merely operates a website that can be accessed from anywhere cannot, without more, be said to be deliberately directing its merchandising towards one forum. Cybersell, 130 F.3d at 419.
We do not think there is a question or a dispute that the website, www.ragingbull.com, is passive. It is set up for the public to post information regarding certain companies and anyone who visits the website can obtain that information or post one's own message. There is no service being sold or promoted and no affirmative commercial conduct initiated on behalf of the website. While we find that the website itself is passive, we must still decide whether Ingram's allegedly tortious activity on the website can also be considered passive.
Plaintiffs accuse Ingram of allegedly posting defamatory information about Medinah and Price on the Raging Bull website, and that those false and defamatory *1136 statements led to the devaluation of Medinah's stock. In addition, Plaintiffs assert that Ingram allegedly told Price that he was a "professional Internet basher," which is proof he had a commercial purpose in engaging in the alleged defamation. Price Aff., Ex. 1 attached to Opp. Even assuming that the evidence that Ingram is a "professional Internet basher" could be construed as having a commercial purpose, which we doubt, Plaintiffs have failed to show purposeful availment.[1]
Cybersell held that "something more" is required than merely posting information on a website to show purposeful availment. Two district court cases, Bailey v. Turbine Design, Inc., 86 F.Supp.2d 790 (W.D.Tenn. 2000) and Barrett v. Catacombs Press, 44 F.Supp.2d 717 (E.D.Pa.1999), inform our decision as what that "something more" might be in the case of alleged defamation over the Internet.
In Bailey, the court found a plaintiff failed to prove that an out of state defendant accused of posting defamatory information on a website purposefully availed itself of benefits of the forum state. 86 F.Supp.2d at 795. Specifically, there was no evidence the defendant had any contacts with the forum besides the postings on the site, which could be accessed by anyone; no evidence to suggest any outreach to the forum any more than to persons residing elsewhere; and no evidence that any resident of the forum ever visited the website. See id. The court held "the mere fact that the website contained defamatory information concerning the plaintiff does not, absent some supporting evidence, mean that the defendant possessed the intent to target residents of the forum." Id. at 796 (citations omitted).
Although here the alleged defamation was posted on a website where anyone could post information, rather than by the owner of a website, it does not appear that this difference affects our analysis. In Barrett, the court found that alleged defamatory messages posted on an Internet discussion group site should not be considered any differently from allegedly defamatory information posted on a passive website. 44 F.Supp.2d at 728. Similar to a passive website, the court reasoned that the "nature and quality of the contacts made by the Defendant were accessible around the world and never targeted nor solicited [residents of the forum]." Id. Because anyone could access the discussion group, the court could not see how it could be inferred that the postings alone could be directed at residents of the forum. See id.
Similarly, here, there is no evidence that Ingram did any business with anyone in Nevada or that he directed his allegedly defamatory comments at Nevada. He posted messages on a website that could be accessed by anyone around the world who had access to the Internet. There is no evidence that any Nevada resident actually did access the alleged defamation. Moreover, Price is a citizen of Canada and Medinah is headquartered in California, with its operations in Chile, which makes the inference that Ingram's alleged defamation was directed at Nevada even more tenuous.
We hold that, similar to the situations considered in Bailey and Barrett, Plaintiffs have failed to show that the alleged defamatory postings were directed at residents of Nevada. Nor is there any proof that the alleged defamation was intended to cause injury in Nevada, as illustrated by the lack of evidence that either Price or Medinah would suffer injury in Nevada *1137 due to Ingram's alleged statements. See Bailey, 86 F.Supp.2d at 796. Plaintiffs have failed to produce evidence that there was "something more" than a passive posting on a website to prove that Ingram directed the alleged defamation at Nevada. Cybersell, 130 F.3d at 419. Therefore, there was no purposeful availment.
2. The Effects Test
In addition to the sliding scale analysis discussed above, the "effects test" developed in the Supreme Court case of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), is another means by which purposeful availment can be measured in the context of tortious conduct on the Internet. To meet the effects test, the defendant must have (1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state. Bancroft, 223 F.3d at 1087 (citations omitted).
The Ninth Circuit has held that the effects test does not stand for the broad proposition that a foreign act with foreseeable effects in the forum state always gives rise to specific jurisdiction. Id. Instead, like the analysis discussed in Cybersell, "something more" is required to establish that the defendant expressly aimed its conduct at the forum. Id. In Bancroft, the court defined the concept of "express aiming" as encompassing "wrongful conduct individually targeting a known forum resident." Id.
Plaintiffs argue that alleged defamatory postings on the Internet alone are enough to subject a defendant to personal jurisdiction in a forum where the alleged defamation can be accessed under the effects test. In support, Plaintiffs cite EDIAS Software Int'l, Inc. v. BASIS Int'l Ltd., 947 F.Supp. 413 (D.Ariz.1996). EDIAS does seem to stand for the proposition that a defendant who directs defamatory information at a forum that allegedly causes foreseeable harm in that forum is subject to personal jurisdiction. However, EDIAS is factually distinguishable and legally precarious.
In EDIAS, the court found it significant that the plaintiff's principal place of business was in the forum. The court held the defendant's messages were directed at the forum, because that is where the plaintiff's business was located. 947 F.Supp. at 419. That connection is missing here. Medinah is merely incorporated in Nevada. Its principal place of business, headquarters and operations are not in Nevada. Therefore, there is no evidence even under EDIAS that Ingram directed his alleged defamation there.
In addition, Ingram argues that EDIAS is not a correct statement of law. We agree. We note that EDIAS was decided in 1996. While by most standards this is not a very long time in terms of decisional law, in the history of cyberlaw, it is. To be sure, the law has since developed and the requirements for establishing jurisdiction on this limitless medium have become more stringent. For example, EDIAS preceded Bancroft, 223 F.3d at 1087, and Cybersell, 130 F.3d at 420, two Ninth Circuit authorities which have held that proof that harm is foreseeable in the forum is not enough to satisfy the effects test. Instead, the presence of individualized targeting of a resident of the forum appears to be dispositive. Bancroft, 223 F.3d at 1087.
The recent district court decisions of Bailey and Barrett provide a more current articulation of the law in this area and we turn to them for guidance. These cases suggest that there must be evidence that defamation actually had an effect on residents of the forum or that the alleged defamation actually targeted the forum in *1138 order for the "express aiming" requirement to be satisfied.
For example, in Barrett, echoing the requirement of individualized targeting discussed in Bancroft, the court found that mere allegations by the plaintiff that effects of the conduct were felt in the forum were not enough without evidence that any forum resident had accessed the website posting the information at issue. Id. at 731. In addition, the Bailey court found that the "express aiming" component was unsatisfied because there was no proof that the alleged defamatory comments had anything to do with plaintiff's state of residence. 86 F.Supp.2d at 796; see also Barrett, 44 F.Supp.2d at 731 (finding that alleged defamation concerning plaintiff's national role, rather than work in the forum shows lack of express aiming).
Here, Plaintiffs do not dispute that Price is a citizen of Canada; that Medinah's headquarters are in California or that the operations are in Chile. Plaintiffs present no evidence that Ingram targeted Nevada or its residents in making his alleged defamatory statements. Instead, Plaintiffs argue that the following additional evidence establishes that there was a harm in Nevada.
Notably, although Plaintiffs agree that there must be more than Medinah's "merely being incorporated in Nevada" for Ingram's alleged defamation to have an effect there, they argue that potential ramifications of being incorporated in Nevada constitute evidence of such harm here. Specifically, Plaintiffs submit that Ingram's alleged attacks at devaluing Medinah's stock value "causes harm in Nevada because that is were [sic] the stock is issued and the stock ledger is maintained." Opp. at 6, n. 10. In addition, Plaintiffs assert that if Medinah were to become insolvent due to Ingram's conduct, Nevada law requires that it apply for receivership in Nevada courts. We do not find that this "harm" is anything more than a potential offshoot of Medinah being incorporated in Nevada, which Plaintiffs have already conceded is not enough to satisfy the effects test.
Plaintiffs also submit that because there are twenty-five Medinah shareholders in Nevada, harm is felt in the forum. However, we agree with the courts that have found that a showing that residents of a forum had access to a website is insufficient to prove that defamatory statements were aimed at the forum. See, e.g., Lofton v. Turbine Design, Inc., 100 F.Supp.2d 404 (N.D.Miss.2000)(rejecting as the minority view that jurisdiction could be found based solely on residents of a forum state simply having access to a website); Barrett, 44 F.Supp.2d at 719 (finding ability to access insufficient without proof of actual access).
Plaintiffs' evidence fails to show that Ingram's alleged defamatory statements posted on the Raging Bull website were "expressly aimed" at Nevada. Accordingly, Plaintiffs have not met their burden of showing purposeful availment under the effects test.
Because Plaintiffs have failed to establish a prima facie showing of purposeful availment under either the sliding scale analysis or the effects test, we need not reach the other elements necessary to find jurisdiction. The complaint must be dismissed for lack of personal jurisdiction.
IT IS, THEREFORE, HEREBY ORDERED THAT Defendant James Ingram's motion to dismiss (# 87) is GRANTED.
NOTES
[1] We do not consider Ingram's factual argument that the information should not be considered because it is false because we resolve all conflicts in the evidence in Plaintiffs' favor at this stage. Bancroft, 223 F.3d at 1087.
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Matter of Hayes v Nigro (2018 NY Slip Op 07124)
Matter of Hayes v Nigro
2018 NY Slip Op 07124
Decided on October 24, 2018
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 October 24, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
COLLEEN D. DUFFY
ANGELA G. IANNACCI, JJ.
2017-07418
(Index No. 6523/16)
[*1]In the Matter of Sean Hayes, appellant,
vDaniel A. Nigro, etc., et al., respondents.
Kyle B. Watters, P.C., Bayside, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Emma Grunberg of counsel), for respondents.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78, the petitioner appeals from a judgment of the Supreme Court, Kings County (Dawn Jimenez-Salta, J.), dated May 10, 2017. The judgment denied the petition, and, in effect, dismissed the proceeding, inter alia, to annul a determination of the respondents Commissioner of the Fire Department of the City of New York dated August 4, 2016, denying reinstatement of the petitioner to the position of firefighter.
ORDERED that the judgment is affirmed, with costs.
In December 2003, the petitioner became a firefighter with the Fire Department of the City of New York (hereinafter the FDNY). In 2012, the petitioner was charged, inter alia, with violating the FDNY's rules and regulations against the use of a prohibited substance. Thereafter, the petitioner entered into a stipulation and agreement with the FDNY, by which he was allowed to retire from the FDNY and vest his pension in lieu of facing the penalty of termination. In exchange, the petitioner admitted to conduct reflecting discredit upon the FDNY arising out of his testing positive for methadone during a random drug test while he was working and violations of the oath of office. Approximately three years later, the petitioner sought reinstatement to the FDNY. In a determination dated August 4, 2016, the Commissioner of the FDNY denied the petitioner's request for reinstatement on the grounds of his disciplinary record and the untimeliness of the request. On November 30, 2016, the petitioner commenced a CPLR article 78 proceeding against the Commissioner of the FDNY and the City of New York seeking, inter alia, to annul the Commissioner's determination and to be reinstated to the position of firefighter with the FDNY. The petitioner also sought discovery of the FDNY's records of all applicants for reinstatement for the period from January 2014 to the date of the commencement of this proceeding. The Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
A request to the Commissioner for the reinstatement of a firefighter must be made within one year from the date of separation from the FDNY (see Personnel Rules and Regulations of the City of New York 6.2.3[c]). "Reinstatement is not a right" (Matter of McGill v D'Ambrose, 58 AD2d 604, 604), and the decision to reinstate is within the sole discretion of the Commissioner, who is not required to state a reason for denying the reinstatement (see Salas v New York City Police Dept., 63 AD3d 468, 469; Matter of Spurling v Police Dept. of City of N.Y., 49 AD2d 823). " As [*2]a discretionary act, such a determination will be upheld unless it is arbitrary or capricious or an abuse of discretion'" (Matter of Lewis v State Univ. of N.Y. Downstate Med. Ctr., 60 AD3d 765, 766, quoting Matter of McCline v New York State Off. of Children & Family Servs., 15 AD3d 580, 580).
The petitioner did not seek to be reinstated as a FDNY firefighter until almost three years after he had left the FDNY as a result of admittedly illegal and potentially dangerous conduct. Accordingly, we agree with the Supreme Court that the determination of the Commissioner was not arbitrary, capricious, or an abuse of discretion (see Matter of McCline v New York State Off. of Children & Family Servs., 15 AD3d at 580).
The discovery sought by the petitioner is not relevant to the Commissioner's individualized and discretionary assessment of the petitioner's application (see Matter of City of Glen Cove Indus. Dev. Agency v Doxey, 79 AD3d 1038, 1038-1039).
The petitioner's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to deny the petition and, in effect, dismiss the proceeding.
RIVERA, J.P., CHAMBERS, DUFFY and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-07-00571-CV
Restaurant Enterprises, L.P. d/b/a or f/d/b/a Austin’s Pizza, Appellant
v.
Travelers Indemnity Co., Appellee
FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-04-279012, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant, Restaurant Enterprises, L.P. d/b/a or f/d/b/a Austin’s Pizza (“Restaurant”),
appeals from a summary judgment granted in favor of appellee, Travelers Indemnity Co.
(“Travelers”), in a suit on a sworn account. The suit arose from a dispute over the number of
“Austin’s Pizza” stores that were insured by Travelers. Restaurant claimed that it owed Travelers
insurance premiums for only four stores, while Travelers claimed that Restaurant owed premiums
for several additional stores. On appeal, Restaurant contends that Travelers failed to prove as a
matter of law that: (1) it was entitled to premiums for the additional stores; (2) it was entitled to the
specific amount of damages alleged; (3) it conclusively negated Restaurant’s counterclaims; and (4)
it was entitled to attorney’s fees. Because we conclude that Travelers failed to prove that there are
no issues of material fact and that it was entitled to summary judgment as a matter of law, we reverse
the trial court’s summary judgment and remand this case for further proceedings consistent
with this opinion.
BACKGROUND
In October 1999, Restaurant opened its first “Austin’s Pizza” store. Shortly before
opening the store, Restaurant’s operations manager, Timothy McLaughlin, contacted an insurance
agency to obtain insurance for the store. McLaughlin spoke with an agent named John Bustamante,
who sold him an insurance policy provided by Travelers. McLaughlin testified in his deposition that
Bustamante informed him more than once that Travelers would insure Restaurant for only up to
four stores and that McLaughlin would have to seek different insurance if Restaurant expanded
beyond four stores. Restaurant opened its fourth store in January 2002 and its fifth store the
following June. Shortly after opening its fifth store, Restaurant began looking for a different
insurance provider for additional stores it planned to open. McLaughlin testified that Restaurant
eventually obtained insurance from insurance providers other than Travelers for the additional stores.
Restaurant continued to expand the number of its stores, so much so that by the time
of McLaughlin’s deposition in June 2005, Restaurant had opened fourteen “Austin’s Pizza” stores
and four barbecue stores. Earlier, during Restaurant’s continued expansion, Travelers conducted an
audit of Restaurant’s operations, and based on the number of stores existing at the time, assessed
premiums for seven stores in the total amount of $64,806.90. A dispute arose over whether
Restaurant owed premiums for more than the initial four stores, and in June 2004, Travelers filed
a suit on a sworn account to recover the money. Restaurant filed a counter-suit against Travelers,
alleging claims for breach of contract, common-law fraud, negligent misrepresentations, and
2
DTPA violations. Travelers filed a motion for summary judgment, which was granted by the trial
court. The trial court awarded damages and attorney’s fees. This appeal followed.
STANDARD OF REVIEW
We review the trial court’s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment, we take as true
all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. Id. A movant is entitled to summary judgment if it demonstrates
that there are no genuine issues of material fact and establishes all the elements of its claim as a
matter of law. See Tex. R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211,
215 (Tex. 2002).
DISCUSSION
In its first issue, Restaurant contends that Travelers failed to prove that there are no
issues of material fact and that Travelers was entitled to summary judgment as a matter of law on
its claim on a sworn account. A suit on a sworn account is an “action or defense . . . founded upon
an open account or other claim for goods, wares and merchandise, including any claim for a
liquidated money demand based upon written contract or founded on business dealings between the
parties . . . .” See Tex. R. Civ. P. 185. To prevail in such a suit, a plaintiff must prove that: (1) there
was a sale and delivery of merchandise or performance of services; (2) the amount of the account
is “just”; and (3) the outstanding amounts remain unpaid. See Powers v. Adams, 2 S.W.3d 496, 499
(Tex. App.—Houston [14th Dist.] 1999, no pet.).
3
In challenging Travelers’ summary-judgment evidence, Restaurant focuses only on
the first element of Travelers’ claim: that Travelers performed services for Restaurant, or more
specifically in this case, that Travelers and Restaurant entered into an agreement in which Travelers
agreed to provide insurance coverage for all of Restaurant’s stores—whether the stores were then
existing or would be opened in the future—and in return, Restaurant agreed to pay premiums for all
existing and future stores. See Tex. R. Civ. P. 185 (suit on sworn account includes claim for money
demand based upon written contract or founded on business dealings between parties).
As evidence that Restaurant agreed to pay Travelers premiums on all of
Restaurant’s locations, Travelers submitted the affidavit of Michael Kronander, the director of
Travelers’ accounting department. In the affidavit, Kronander stated that he had personal knowledge
of Travelers’ account with Restaurant “for premiums due on various policies” and that “[e]ach of
the policies covered the entire business of [Restaurant], and none were [sic] limited to any particular
location.” Kronander also stated that:
[u]nder the terms of the policies in question, [Travelers] was liable
for claims made under the policies arising out of operations at any
and all locations of [Restaurant], unless other insurance coverage
existed, and, accordingly, [Restaurant] [sic] is entitled, as is standard
custom in the insurance industry, to charge premiums based upon the
entire operations of [Restaurant], including all locations.
Restaurant contends that summary judgment was improper because an issue of
material fact exists regarding whether Restaurant had other insurance coverage during the time
period for which Travelers seeks premiums. Kronander’s affidavit states that under the terms of the
relevant insurance policies, Travelers was liable for claims made at all of Restaurant’s locations and
4
could charge premiums for all of Restaurant’s locations “unless other insurance coverage existed.”
The statement of account attached to Kronander’s affidavit describes the policies Travelers claims
to have issued to Restaurant. Based on the statement of account, the period of time covered by the
policies spans from November 12, 1999 to April 13, 2003.
Restaurant contends that exhibits attached to the affidavit and deposition of Timothy
McLaughlin, Restaurant’s operations manager, raise an issue of material fact as to whether
Restaurant had insurance coverage other than that provided by Travelers during the relevant time
period. For example, one exhibit shows payments made by Restaurant to an insurance company
named Zurich on March 1, 2003, and April 1, 2003, both dates within the relevant time period.
Another exhibit shows a payment made by Restaurant to an insurance company called American
International Group (“AIG”) on March 14, 2003. Other exhibits further support the existence of a
policy with AIG, including: (1) a letter from Restaurant to its insurance agent in which Restaurant
refers to the cancellation of an existing worker’s-compensation policy and the issuance of a new
policy with AIG effective January 13, 2003; and (2) a worker’s-compensation incident report
completed by Restaurant on January 17, 2003, identifying AIG as the worker’s-compensation carrier
and listing January 13, 2003, as the effective date of the policy. Because the exhibits reference
policies and payments falling within the relevant time period, we conclude that the exhibits raise an
issue of material fact as to whether Restaurant owed Travelers premiums on all of its locations.
Accordingly, summary judgment was improper. See Tex. R. Civ. P. 166a(c); Southwestern Elec.,
73 S.W.3d at 215.
We also agree with Restaurant’s assertion that Kronander’s affidavit is insufficient
to support summary judgment because the statements regarding the insurance policies are
5
“conclusory”—i.e., they state conclusions without providing the underlying facts on which the
conclusions are based—and Kronander did not submit copies of the policies as factual support for
his statements. Affidavits must contain specific factual bases that would be admissible in evidence
and upon which any conclusions are drawn. See Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538,
542 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Nichols v. Lightle, 153 S.W.3d 563, 570
(Tex. App.—Amarillo 2004, pet. denied); see also Paragon Gen. Contractors, Inc. v. Larco Constr.,
Inc., 227 S.W.3d 876, 883 (Tex. App.—Dallas 2007, no pet.) (statement is “conclusory” if it does
not provide underlying facts to support conclusion). Similarly, when an affidavit in a summary-
judgment proceeding refers to other documents, the affiant must attach sworn or certified copies of
those documents to the affidavit. See Tex. R. Civ. P. 166a(f); Paragon, 227 S.W.3d at 884. The
failure to attach the referenced documents can leave an affidavit devoid of factual support for
conclusions made regarding the documents, which in turn renders the affidavit substantively
defective.1 See Brown v. Brown, 145 S.W.3d 745, 752 (Tex. App.—Dallas 2004, pet. denied).
In this case, Kronander refers to certain insurance policies and the terms of the
policies in concluding that the policies covered all of Restaurant’s existing and future stores, but he
did not attach the policies to the affidavit. Without copies of the policies, Kronander fails to
provide a factual basis for his conclusions. See Paragon, 227 S.W.3d at 883-84; Brown, 145 S.W.3d
at 752-53. His statements are therefore incompetent summary-judgment evidence. See City of
San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 701 n.6 (Tex. App.—Austin 2005, no pet.)
1
Defects in the substance of an affidavit may be raised for the first time on appeal. See
Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied);
McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003,
pet. denied).
6
(statement in affidavit was incompetent summary-judgment evidence because affidavit did not
provide underlying facts to support conclusion); Brown, 145 S.W.3d at 753 (affidavit that referred
to other documents but did not attach them was incompetent summary-judgment evidence). Because
Kronander’s affidavit was the only evidence offered to prove that there was an agreement between
the parties requiring Restaurant to pay premiums on all of its locations, summary judgment was
improper. Thus, we not only reverse the trial court’s summary judgment based on Travelers’ failure
to prove that there are no issues of material fact, but we also do so based on Travelers’ failure to
prove its entitlement to summary judgment as a matter of law.
Given our reversal of the trial court’s summary judgment, we need not address
Restaurant’s second and fourth issues regarding the damages and attorney’s-fees awarded to
Travelers because both awards must also necessarily be reversed. See Powers, 2 S.W.3d at 500;
Friedman v. Atlantic Funding Corp., 936 S.W.2d 38, 42 (Tex. App.—San Antonio 1996, no writ).
Turning to Restaurant’s remaining issue regarding its counterclaims, the record shows
that the trial court erred in granting summary judgment on the claims. Although the trial court’s
judgment stated that it “finally dispose[d] of all parties and all claims and [was] appealable,”the
judgment did not in fact dispose of all of the claims in this case. The record shows that Travelers’
motion for summary judgment addressed only its own claim on a sworn account2 and that Restaurant
2
The only portion of Travelers’ summary-judgment motion that could be interpreted as
referring to at least some of Restaurant’s counterclaims was Travelers’ assertion that Kronander’s
affidavit established that “any person or persons who potentially might have made representations
to [Restaurant] concerning the locations covered by the policies are not or were not agents or
employees of [Travelers].” However, this statement was made under a heading titled “[Travelers’]
Case-in-Chief,” and in the conclusion section of the motion, Travelers stated that the evidence
attached to its motion established as a matter of law that it was entitled to judgment “on its principal
claim.” At no point in the motion did Travelers mention Restaurant’s counterclaims or state that it
was entitled to judgment on the claims.
7
did not file a summary-judgment motion on its counterclaims. There is also no indication in the
record that the counterclaims were dismissed from the suit. Thus, the trial court was correct in
stating that its judgment was appealable but erred in claiming that the judgment disposed of all
claims in the case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (concluding
that judgment containing clear and unequivocal statement that it finally disposes of all claims when
record shows otherwise must be appealed and reversed). Accordingly, in addition to reversing the
trial court’s summary judgment based on Travelers’ failure to prove that there are no issues of
material fact and that it was entitled to summary judgment as a matter of law, we also reverse the
judgment on the ground that it did not dispose of Restaurant’s counterclaims. See id.
CONCLUSION
Because we conclude that the trial court erred in granting summary judgment in favor
of Travelers, and because the trial court did not dispose of all claims between the parties, we reverse
the trial court’s summary judgment and remand this case to the trial court for further proceedings
consistent with this opinion.
___________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Chief Justice Law Not Participating
Reversed and Remanded
Filed: January 15, 2009
8
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21 N.J. Super. 318 (1952)
91 A.2d 153
VINCENT BERTUCCI, AN INFANT, BY COSMO BERTUCCI, HIS NATURAL GUARIAN AND PARENT, PETITIONER-RESPONDENT,
v.
METROPOLITAN CONSTRUCTION COMPANY, A CORPORATION, RESPONDENT-APPELLANT, AND GERALD TORLUCCI AND JOSEPH TORLUCCI, AND NATIONAL CASUALTY INSURANCE CO., RESPONDENTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued July 21, 1952.
Decided September 3, 1952.
*319 Before Judges SCHETTINO, LLOYD and WOODS.
Mr. John A. Laird argued the cause for respondent-appellant (Mr. Louis Asarnow, attorney).
Mr. Harry Cohn argued the cause for petitioner-respondent (Mr. Samuel A. Scharff, attorney).
The opinion of the court was delivered by LLOYD, J.S.C.
This is an appeal to this court from a judgment of the County Court affirming a judgment of the *320 Deputy Director of Compensation in favor of the petitioner-respondent. The question involved is whether or not a general contractor is liable for the "double" compensation due a minor for injury arising out of and in the course of his employment while illegally employed by a subcontractor who failed to carry insurance.
The undisputed facts are that petitioner-respondent, Vincent Bertucci, was a minor, 17 years of age, employed by Torlucci Brothers, subcontractors of respondent-appellant, Metropolitan Construction Co., a corporation. He was employed in violation of R.S. 34:15-10, sustained compensable injury and obtained judgment for double compensation under said section of the Workmen's Compensation Act against Metropolitan Construction Company, respondent-appellant:
R.S. 34:15-10 provides:
"* * * If the injured employee at the time of the accident * * * is a minor * * * between fourteen and eighteen years of age employed, permitted or suffered to work * * * at an occupation prohibited at the minor's age by law, a compensation * * * shall be payable to the employee * * * which shall be double the amount payable under the schedules provided in sections 34:15-12 and 34:15-13 of this Title.
* * * * * * * *
The employer alone and not the insurance carrier shall be liable for the extra compensation * * * which is over and above the amount of the compensation * * * provided under said sections 34:15; 12 or 34:15-13. Any provision in an insurance policy undertaking to relieve an employer from the liability for the extra compensation * * * shall be void."
R.S. 34:15-79 provides:
"* * * Any contractor placing work with a sub-contractor shall, in the event of the subcontractor's failing to carry workmen's compensation insurance as required by this article, become liable for any compensation which may be due an employee * * * of a subcontractor. The contractor shall then have a right of action against the subcontractor for reimbursement."
The contractor has paid the compensation due the injured employee as provided in section 34:15-12 but denies its *321 liability to pay the extra or double compensation awarded by reason of the illegal employment.
The aforementioned section, 34:15-79, was amended in 1924 to substantially its present form. Counsel and the court have been unable to find any case in this state where this question has been raised.
Corbett v. Starrett Bros., Inc., 105 N.J.L. 228 (E. & A. 1928), holds specifically that this act does not create the relationship of employer and employee as between a general contractor and an employee of a subcontractor. It further holds that:
"The Workmen's Compensation Act controls only when the relationship of employer and employee exists, and section 5 of the Insurance Act, as amended, was never intended to create such a relation between the general contractor and a person employed by the subcontractor, but does require the general contractor to see to it that a subcontractor insures his liability to pay the compensation as provided by statute, or the general contractor himself becomes liable to pay it, and in such an event, has a right of action against the subcontractor for reimbursement. Therefore, a subcontractor is liable in the first instance, and the general contractor is only secondarily liable, in the event that the subcontractor ignores the statute."
R.S. 34:15-10 refers to "extra compensation" as distinguished from "compensation" normally payable. R.S. 34:15-79 makes the contractor liable for "any compensation" in the circumstances set forth. The issue of interpretation is whether "any compensation" means the "compensation" normally payable or includes as well "extra compensation." The employer cites authority from other states to the effect that the "extra compensation," at least for the purposes involved in those cases, is not a "penalty." The ultimate question, however, is whether R.S. 34:15-79 refers only to normal compensation or includes as well extra compensation, and the penal or nonpenal quality of extra compensation is not controlling in that inquiry. The question is, upon whom did the Legislature intend to impose the burden of extra compensation? As to an insured subcontractor, the statute *322 explicitly places the burden upon the subcontractor alone. Did the Legislature intend that when a subcontractor carried no insurance, the burden should fall upon the contractor? The draftsman of a statute cannot foresee every specific situation and it is peculiarly the function of the judiciary to solve the questions which arise, not by mechanical correlation of words, but rather by giving to the words used a meaning and significance controlled by the intention of the Legislature as revealed by the underlying scheme.
Hence we must find the rational connection between the contractor's liability and the employee's claim for compensation, normal and extra. What would the employee have had if the contractor had discharged his implicit duty to require the subcontractor to carry insurance? Of what was the employee deprived by the contractor's failure to discharge that duty? In the absence of words imperatively precluding it, the answer should be dictated by those inquiries.
Had the Legislature intended to saddle the contractor with the duty of preventing illegal employment by subcontractors, it would have made the contractor liable even though the subcontractor was insured. On the contrary, the sole responsibility of the contractor relates to the fact of insurance. See Gerber v. Sherman, 120 N.J.L. 237, 241 (Sup. Ct. 1938). If the subcontractor is insured, the contractor has no liability at all. In imposing the liability for extra compensation upon the insured subcontractor (indeed to the exclusion of the carrier) and omitting to impose it also upon the contractor, the Legislature plainly indicated that the onus of illegal employment shall fall upon the subcontractor-employer. The liability imposed upon the contractor arises solely upon the lack of insurance coverage by the subcontractor. Had the contractor seen to it that the subcontractor carried insurance, the illegally employed minor could have looked only to the subcontractor for the extra compensation. The failure of the contractor to see to it that the subcontractor carried insurance is accordingly logically related only to the collection of the normal compensation *323 and logically unrelated to the liability for or the collection of a claim for extra compensation.
Hence the consequence which rationally should flow from the contractor's omission is liability for that which the employee would have had if the subcontractor were insured; and, of course, that liability would be the same liability covered by the insurance carrier and accordingly relates solely to normal compensation.
Judgment for extra compensation against defendant Metropolitan Construction Company is reversed, without costs, and the cause remanded to the Workmen's Compensation Bureau for decision in accordance with the views expressed herein.
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T.C. Memo. 1996-279
UNITED STATES TAX COURT
DENNIS P. AND DIANA C. RAQUET, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26331-88. Filed June 17, 1996.
Lavonne Lawson, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
FAY, Judge: This case is before the Court on respondent's
Motion to Dismiss for Lack of Prosecution as to petitioner
Diana C. Raquet.1 By statutory notices of deficiency dated
1
All references to petitioner are to Diana C. Raquet.
- 2 -
July 11, 1988,2 respondent determined deficiencies in
petitioners' Federal income taxes, in the amounts listed below:
Additions to Tax and Increased Interest
Sec. Sec. Sec. Sec. Sec. Sec.
Year Deficiency 6621(c) 6653(a) 6653(a)(1) 6653(a)(2) 6659 6661
1
1979 $7,010 $350.50 -- -- $2,103 --
1
1980 11,021 551.00 -- -- 3,306 --
1 2
1981 -- -- $4.55 -- --
1 2
1982 -- -- 256.00 218 $2,753
1
To be determined.
2
Fifty percent of the interest due on the deficiency.
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure. The notice of deficiency for the 1982 tax year
determined petitioners had a zero deficiency but were liable for
additions to tax pursuant to sections 6653, 6659, and 6661.
Respondent contends that the zero deficiency occurred as a result
of a clerical error in the Schedule of Adjustments, which was
attached to the notice of deficiency for the 1982 tax year. In
an Amendment to Answer, filed April 12, 1995 (Amendment to
Answer), respondent corrected the error on the statutory notice
of deficiency and stated that the correct deficiency is $29,913.
Respondent contends that she does not bear the burden of proof as
2
Respondent issued two notices of deficiency to petitioners.
Both notices are dated July 11, 1988. In the first notice of
deficiency, respondent determined deficiencies and additions to
tax in petitioners' Federal income taxes for the taxable years
1979, 1980, and 1981. In the second notice of deficiency,
respondent determined deficiencies and additions to tax in
petitioners' Federal income taxes for the taxable year 1982.
- 3 -
to the correct deficiency amount for the 1982 tax year because
the error in the deficiency was evident from the other informa-
tion set forth in the notice of deficiency. The issues for
decision are:
(1) Whether respondent bears the burden of proof when
respondent increases a deficiency in her Amendment to Answer when
the increase in deficiency was due to a clerical error in the
notice of deficiency. We hold that respondent only bears the
burden of establishing the clerical or mathematical error.
Petitioner retains the burden with regard to respondent's sub-
stantive determinations.
(2) Whether respondent's Motion to Dismiss for Lack of
Prosecution should be granted. We hold that it should.
FINDINGS OF FACT
At the time the petition was filed, petitioners resided in
Los Gatos, California. By two statutory notices of deficiency,
each dated July 11, 1988, respondent determined deficiencies,
additions to tax, and increased interest in petitioners' Federal
income taxes for the tax years 1979, 1980, 1981, and 1982. The
adjustments determined in the notices of deficiency were with
regard to petitioners' participation in two tax shelter projects:
(1) Encore Leasing Corp. and (2) Kelsey/Soda Lake Mining.
In the notice of deficiency for the taxable year 1982 (the
notice of deficiency), respondent asserted adjustments of
$93,930. Thus, respondent increased petitioners' taxable income
- 4 -
for the 1982 tax year to $102,665, from $8,735, which was the
amount reported by petitioners. Based on the increase in taxable
income, respondent determined a tax liability of $38,782 for the
1982 taxable year. Respondent set forth these determinations in
a Schedule of Adjustments for the 1982 tax year, which was
attached to the notice of deficiency. Also in the notice of
deficiency, respondent determined additions to tax for negli-
gence, overvaluation, and substantial understatement and
additional interest.
Respondent contends that, due to a clerical error, despite
the above adjustments, the amount of the deficiency, ultimately
reflected in the notice of deficiency, was zero. The error
occurred in the Schedule of Adjustments for the 1982 tax year.
Page 1 of the Schedule of Adjustments indicates that petitioners
reported taxable income of $8,735 for 1982. Page 2 of the
Schedule of Adjustments states that petitioners on the same
return reported $38,782 in Federal income taxes. This amount is
actually the amount that respondent claims is petitioners'
liability for taxes for 1982. Respondent placed the $38,782 in
the column for the amount of the reported liability on peti-
tioners' 1982 Federal income tax return. The amount of tax in
fact reported on petitioners' 1982 Federal income tax return was
zero. Respondent contends that an amount of zero should have
been placed in the space for total tax per return on the Schedule
of Adjustments. The zero, subtracted from the total corrected
- 5 -
income tax liability of $38,782, would have led to the statement
of the deficiency as $38,782.
On February 6, 1989, the parties filed with the Court a
Partial Stipulation of Settlement with regard to the Kelsey/Soda
Lake Mining issues. In the Partial Stipulation of Settlement,
petitioners agreed to an adjustment of $85,000 for the 1982 tax
year with regard to the Kelsey/Soda Lake Mining tax shelter
project. Additionally, petitioners conceded the addition to tax
for overvaluation with respect to the $85,000 adjustment.
Respondent agreed to concede the addition to tax for negligence
with regard to the $85,000 adjustment. Also, petitioners were
granted the opportunity to claim a theft loss for substantiated
cash out-of-pocket.
On October 8, 1992, petitioners' attorneys filed a Motion
for Withdrawal of Counsel. In the motion, petitioners' attorneys
state that they have tried "to obtain direction from petitioners
concerning a potential settlement of this case. To date, we have
been unable to receive any commitment from petitioner Dennis
Raquet and we have received no communication whatsoever from
Diana Raquet."3
3
The Motion for Withdrawal of Counsel also listed peti-
tioners as having separate addresses. The record is unclear as
to when petitioners were married and whether they remain married.
The only evidence of petitioners' marriage is that they jointly
filed a Federal income tax return for the 1982 tax year.
- 6 -
On August 22, 1994, respondent sent a Branerton letter,
Branerton Corp. v. Commissioner, 61 T.C. 691 (1974), to peti-
tioner, in which respondent invited petitioner to a conference at
respondent's San Jose, California, office. In the letter,
respondent also suggested that petitioner assemble all documenta-
tion which she planned to use to support her case in trial.
Respondent also sent the same Branerton letter, Branerton Corp.
v. Commissioner, supra, to petitioner Dennis P. Raquet, except
that respondent requested a conference with him on a different
date.
Petitioner Dennis P. Raquet did subsequently meet with
respondent. Petitioner Diana C. Raquet, however, failed to
attend the conference and never furnished respondent with the
requested documentation.
By means of a notice setting case for trial, served upon
petitioners, petitioners were informed that this case was
calendared for trial in Los Angeles, California, with a time and
date certain. This notice included the following paragraphs:
The calendar for that Session will be called at
10:00 A.M. on that date and both parties are expected
to be present at that time and be prepared to try the
case. YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL
OF THE CASE AND ENTRY OF DECISION AGAINST YOU.
- 7 -
Your attention is called to the Court's require-
ment that, if the case cannot be settled on a mutually
satisfactory basis, the parties, before trial, must
agree in writing to all facts and all documents about
which there should be no disagreement. Therefore, the
parties should contact each other promptly and coop-
erate fully so that the necessary steps can be taken to
comply with this requirement. YOUR FAILURE TO COOP-
ERATE MAY ALSO RESULT IN DISMISSAL OF THE CASE AND
ENTRY OF DECISION AGAINST YOU. * * *
Within the time in which discovery was allowed, respondent,
pursuant to Rule 72, served on petitioners Respondent's Request
for Production of Documents. Petitioners failed to respond to
Respondent's Request for Production of Documents and Respondent's
Request for Admissions. Thus, respondent filed with the Court a
Motion to Compel Production of Documents. Based on respondent's
Motion to Compel Production of Documents, the Court issued an
order granting respondent's Motion to Compel Production of Docu-
ments and ordering petitioners to produce within 30 days those
documents requested in respondent's Request for Production of
Documents. The order also stated: "in the event petitioners do
not fully comply with the provisions of this order, this Court
will be inclined to impose sanctions pursuant to Tax Court Rule
104, which may include dismissal of this case and entry of a
decision against petitioners."
After the Court granted respondent's Motion to Compel
Production of Documents, respondent spoke with petitioner and
discussed possible ways to settle this case. Pursuant to this
conversation, respondent wrote petitioner a letter in which
- 8 -
respondent requested that petitioner determine how she wanted to
resolve this case. In a subsequent conversation with respondent,
petitioner indicated that she had received the letter.
In another conversation, petitioner notified respondent that
she would not sign a proposed decision document to resolve this
case and that she did not plan to attend the calendar call in Los
Angeles, California. Based on this information, respondent
informed petitioner that respondent planned to file, at the
calendar call in Los Angeles, California, a Motion to Dismiss for
Lack of Prosecution with regard to petitioner.
Shortly before the case was called for trial, respondent
filed with the Court a Motion for Leave to File Amendment to
Answer and lodged the Amendment to Answer. The Court granted
respondent's Motion for Leave to File Amendment to Answer. In
the Amendment to Answer, respondent notified the Court of the
clerical error in the notice of deficiency. The Amendment to
Answer also stated that the deficiency asserted for the tax year
1982 was in the amount of $29,913. The original deficiency for
the 1982 tax year was $38,782; however, the settlement of the
Kelsey/Soda Lake Mining tax shelter issue reduced the 1982
deficiency to $29,913.
When this case was called for trial in Los Angeles,
California, petitioner did not appear. At the calendar call,
respondent filed with the Court, on behalf of petitioner
Dennis P. Raquet, a Stipulation of Settlement between Respondent
- 9 -
and Petitioner Dennis P. Raquet. In the Stipulation of Settle-
ment between Respondent and Petitioner Dennis P. Raquet, peti-
tioner Dennis P. Raquet agreed to the deficiencies and additions
to tax for the taxable years 1979 through 1982, including the
increased deficiency of $29,913 for the 1982 tax year. Also at
the calendar call, respondent filed with the Court a Motion to
Dismiss for Lack of Prosecution as to petitioner Diana C. Raquet.
OPINION
Burden of Proof
Respondent bears the burden of proof with respect to an
increased deficiency. Here, respondent increased the deficiency
determined in the notice of deficiency in her Amendment to
Answer. The increase in deficiency was due to a clerical error
in the preparation of petitioner's notice of deficiency. In the
context of a case such as the one before us, where the increase
in deficiency is based on a clerical or mathematical error in the
notice of deficiency, respondent bears only the burden of estab-
lishing the clerical or mathematical error. Petitioner retains
the burden with regard to respondent's determinations. See
Estate of Applestein v. Commissioner, 80 T.C. 331, 347 n.5
(1983); Beck Chem. Equip. Corp. v. Commissioner, 27 T.C. 840, 856
(1957); see also Kiehl v. Commissioner, T.C. Memo. 1986-54; Holtz
v. Commissioner, T.C. Memo. 1982-436. We find that respondent
has met this burden of establishing the clerical error through
- 10 -
the introduction of petitioners' 1982 Federal income tax return
which reported petitioners' amount of tax as zero.
Alternatively, if respondent were to have the burden of
proof, she could satisfy her burden of proof based on deemed
admissions. See, e.g., Doncaster v. Commissioner, 77 T.C. 334
(1981); Baldwin v. Commissioner, T.C. Memo. 1984-119. Pursuant
to Rule 90(c), each matter is deemed admitted unless within 30
days after service of the request the party to whom the request
is directed serves upon the requesting party either (1) a written
answer specifically admitting or denying the matter involved or
(2) an objection. Respondent issued requests for admissions on
February 8, 1995. Petitioner never responded to respondent's
requests for admissions. Thus, even if respondent had the burden
of proof, she would have satisfied her burden of proof with
respect to the increased deficiency, since respondent's requests
are deemed admitted pursuant to Rule 90(c), including an admis-
sion that the deficiency for the taxable year 1982 is in the
amount of $29,913.
Lack of Prosecution
With respect to respondent's Motion to Dismiss for Lack of
Prosecution as to petitioner Diana C. Raquet, Rules 123(b) and
149(a) provide as follows:
[Rule 123](b) Dismissal: For failure of a
petitioner properly to prosecute or to comply with
these Rules or any order of the Court or for other
cause which the Court deems sufficient, the Court may
dismiss a case at any time and enter a decision against
- 11 -
the petitioner. The Court may, for similar reasons,
decide against any party any issue as to which such
party has the burden of proof, and such decision shall
be treated as a dismissal for purposes of paragraphs
(c) and (d) of this Rule.
* * * * * * * *
[Rule 149](a) Attendance at Trials: The unexcused
absence of a party or a party's counsel when a case is
called for trial will not be ground for delay. The
case may be dismissed for failure properly to prose-
cute, or the trial may proceed and the case be regarded
as submitted on the part of the absent party or
parties.
We find that petitioner's failure to cooperate with
respondent during the pretrial period made it impossible for
respondent to conduct negotiations, exchange information, and
stipulate mutually agreeable facts as required by Rule 91(c).
The standing pretrial order has not been complied with by
petitioner, nor have the mandates of the Court in Branerton Corp.
v. Commissioner, 61 T.C. 691 (1974). Thus, in light of peti-
tioner's conduct in this proceeding and her failure to appear
when the case was called for trial, we conclude that dismissal is
appropriate. Accordingly, respondent's Motion to Dismiss for
Lack of Prosecution as to petitioner Diana C. Raquet will be
granted.
To reflect the foregoing,
An appropriate order will be
issued granting respondent's motion
to dismiss, and decision will be
- 12 -
entered for respondent, consistent
with the foregoing.
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951 F.2d 1112
21 Fed.R.Serv.3d 637
Charles K. ELDER; Beverly S. Elder, husband and wife,Plaintiffs-Appellants,v.R.D. HOLLOWAY; Other Unknown Employees and/or Agents,individually and in their official capacity aspolice officers for the Ada CountySheriff's Office, et al.,Defendants-Appellees.
No. 91-35146.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 8, 1991.Decided Dec. 19, 1991.
John Charles Lynn, Lynn, Scott & Hackney, Boise, Idaho, for plaintiffs-appellants.
James J. Davis, Davis, Wright & Tremaine, Boise, Idaho, for defendants-appellees.
Appeal from the United States District Court for the District of Idaho.
Before WALLACE, Chief Judge, HUG, and RYMER, Circuit Judges.
RYMER, Circuit Judge:
1
This appeal raises an unusual question: whether a summary judgment on qualified immunity in favor of a law enforcement officer which was properly granted on the record presented to the district court, should nevertheless be reversed because there are legal authorities that plaintiff did not present to the district court or to us on appeal which suggest that, contrary to what the district court found, the law was clearly established at the time of the incident. Because the plaintiff bears the burden of proof on the issue, 751 F.Supp. 858. we affirm.
2
After receiving word that Charles Elder, who was wanted on Florida warrants and considered dangerous, was in town, officer R.D. Holloway and others in the Ada County Sheriff's Office made plans to arrest him outside his place of work. Elder and his brother William got wind of the officers' plans, however, left work early, and returned to William's house (where Elder was living, too). Holloway and a number of other officers set up surveillance at the house. When William tried to ride away on horseback, he was detained. Officers found out that Elder had access to weapons in the house. Eventually, Holloway and William made telephone contact with Elder, who meanwhile had suffered two epileptic seizures. Holloway advised him that if he was unable to walk out of the house, he should crawl. Elder walked out a few minutes later, but fell face down, hitting his head and sustaining severe injuries. This happened on April 27, 1987.
3
Elder's 42 U.S.C. § 1983 action claims these events violated his constitutional right not to be arrested in his home without a valid Idaho warrant. Holloway's motion for summary judgment on the ground of qualified immunity was granted because the court found no Idaho or Ninth Circuit law that addressed the issue of whether a valid Idaho warrant was necessary to make a "constructive entry" into a home to arrest an occupant.
4
As the trial judge's memorandum opinion and order notes, Elder cited two cases to the court, State v. Holeman, 103 Wash.2d 426, 693 P.2d 89 (1985), and Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). Based on these cases and its reading of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the district court concluded that the law was not clear on the issue of "constructive crossing of the threshold." Accordingly, it ruled in Holloway's favor on qualified immunity.
5
We have no difficulty with the district court's decision on the record it was presented. Neither case Elder relied upon clearly established whether an arrest takes place inside or outside the home, when the suspect is inside but is summoned outside by law enforcement officers who have surrounded the premises.
6
There was, however, Ninth Circuit authority, long in place, which is closely on point and could make a difference in the outcome of this case. In United States v. Al-Azzawy, 784 F.2d 890 (9th Cir.1985), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986), police surrounded the suspect's house and, with weapons drawn, ordered him to leave. When he emerged, he was taken into custody. We held that, even though he had exited the house and was physically seized outside, he "was arrested inside his residence without a warrant." Id. at 893. In so holding, we reaffirmed the rule that " 'it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.' " Id. (quoting United States v. Johnson, 626 F.2d 753, 757 (9th Cir.1980), aff'd on other grounds, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). The Sixth Circuit had also held to the same effect in United States v. Morgan, 743 F.2d 1158, 1166-67 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985).1 Thus, that principle was clearly established at the time of Elder's arrest.2
7
The problem, of course, is that none of these cases were called to the attention of the district court. The question, therefore, is whether we should now reverse. We conclude that we should not, for the following reasons.
8
First, we have said that a § 1983 plaintiff bears the burden of showing that the constitutional right purportedly violated was clearly established at the time of the official's conduct. Baker v. Racansky, 887 F.2d 183, 186 (9th Cir.1989). Although the state of the law at the time the incident occurred is a question for the court, rather than a jury, to decide, in the unique context of qualified immunity it is akin to a question of fact. What the law was is inextricably intertwined with the merits of the issue, such that a court cannot properly resolve a police officer's motion for summary judgment without determining whether, on the one hand, the law was clearly established and, on the other, whether the law enforcement official would reasonably have known he was violating the plaintiff's constitutional rights by his conduct on the particular occasion. Unless the plaintiff presents legal authorities that bear on the point, he fails to carry his burden.
9
Second, it goes without repeating that we never consider facts not presented to the district court. United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990). By the same token, we normally do not consider legal issues not raised or ruled upon in the district court. Examples include those matters that can be urged by way of a Rule 12 motion that are waived unless made with the answer, see, e.g., Fed.R.Civ.P. 12(h)(1) (defenses of lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process waived if omitted from pre-answer motion, if any, or answer); Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986) (A "general appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive any defect in service or personal jurisdiction."), amended on other grounds, 807 F.2d 1514 (9th Cir.), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987); Chilicky v. Schweiker, 796 F.2d 1131, 1135-36 (9th Cir.1986) (if party files pre-answer motion but fails to raise defense of lack of personal jurisdiction in that motion, defense is waived), rev'd on other grounds, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); issues that could have been joined by a motion for directed verdict, but cannot be pressed on appeal unless that motion is made, see, e.g., Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1493 (9th Cir.1986) (sufficiency of evidence not reviewable on appeal unless motion for directed verdict was made in trial court); United States v. 33.5 Acres of Land, 789 F.2d 1396, 1400 (9th Cir.1986) (same, but noting limited exception for plain error resulting in manifest miscarriage of justice); and errors in instructions that are waived unless an objection is timely made or instructions reflecting contrary law are submitted before the jury goes out, see e.g., Fed.R.Civ.P. 51 (no party can challenge jury instructions on appeal unless objection made before jury retires); Hammer v. Gross, 932 F.2d 842, 847-48 (9th Cir.) (en banc) (party cannot challenge jury instructions on appeal if not objected to in district court prior to jury retiring; there is no plain error exception to this rule), cert. denied, --- U.S. ----, 112 S.Ct. 582, 116 L.Ed.2d 607 (1991). Furthermore, the relevant record on review of summary judgments is the record as it existed at the time the motion was considered. Harkins Amusement Enter., Inc. v. General Cinema Corp., 850 F.2d 477, 482 (9th Cir.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 817, 102 L.Ed.2d 806 (1989). We see no meaningful distinction between these procedures and this one.
10
Third, for us to reverse on account of law that could and should have been known to counsel at the time the summary judgment motion was under consideration would violate the spirit of the first rule of the Federal Rules of Civil Procedure. Rule 1 mandates that the rules "be construed to secure the just, speedy, and inexpensive determination of every action." This includes Rule 56 on summary judgments. In this case, a summary judgment was entered that is arguably erroneous because the person with the burden to do so, failed to find or produce relevant Ninth Circuit authority. Had he done so at the right time and in the right forum, the adverse judgment might have been avoided. So, too, would this appeal. In these circumstances, failing to hold Elder to the case he chose to present would fly in the face of Rule 1.
11
Fourth, given the hybrid nature of the issue, and the fact that the plaintiff has the burden of showing that the law was clearly established, for us to step in now would have the effect of putting the court on counsel's legal staff. We have great concern that this does not comport with our overriding obligation to be fair and impartial to all sides. More significantly, to reverse because of legal authority not called to the attention of the district court, when the state of the law is the heart of the qualified immunity issue on summary judgment, would necessarily mean that we expect the district court to research independently the applicable law whenever qualified immunity is at issue. While to do so is commendable and encouraged, we are reluctant to require it at the cost of reversible error, at least when the error is not so obvious or fundamental as to result in a denial of due process. To impose this burden on a district judge would put him or her back in the business of practicing law, and to that extent implicates the court's impartiality. Cf. Jacobsen v. Filler, 790 F.2d 1362, 1365 n. 7 (9th Cir.1986). It would also shift to the court the burden we have put on the plaintiff. That we are bound not to do. Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988) (only en banc court has power to reject circuit precedent).
12
Finally, in this case we cannot say that injustice has occurred. Neither counsel nor the court found Al-Azzawy. We are hard pressed to conclude that, given that failure, the law was sufficiently clear that a reasonable law enforcement officer in Holloway's shoes would understand that what he was doing violated a constitutional right.
13
AFFIRMED.
1
The Eighth Circuit is now in accord, see Duncan v. Storie, 869 F.2d 1100 (8th Cir.), cert. denied, 493 U.S. 852, 110 S.Ct. 152, 107 L.Ed.2d 110 (1989). However, Duncan was handed down after the incident at issue in this case. Therefore, it is not relevant on the question of Holloway's good faith belief, and Elder's reliance on it on appeal is inappropriate
2
Al-Azzawy went on to hold that exigent circumstances justified the warrantless arrest. 784 F.2d at 894. Holloway urges that no matter what, this renders the law uncertain. Given our disposition, it is not necessary to resolve this question
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77 F.3d 637
77 A.F.T.R.2d 96-1076, 96-1 USTC P 50,162,43 Fed. R. Evid. Serv. 1146
Gene L. MORETTI, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 415, Docket 95-4036.
United States Court of Appeals,Second Circuit.
Submitted Oct. 6, 1995.Decided Feb. 23, 1996.
Gene L. Moretti, petitioner-appellant pro se.
Loretta C. Argrett, Assistant Attorney General, United States Department of Justice, Tax Division (Gary R. Allen, William S. Estabrook, Linda E. Mosakowski, Tax Division Attorneys, on the brief), for respondent-appellee.
Before: ALTIMARI, McLAUGHLIN, and PARKER, Circuit Judges.
ALTIMARI, Circuit Judge:
1
Petitioner-appellant Gene L. Moretti ("Moretti") appeals from two orders of the United States Tax Court sustaining certain deficiencies and additions to Moretti's 1990 and 1991 federal income taxes, after a bench trial, and denying Moretti's claims to certain tax refunds and carryovers. For the reasons stated below, we affirm in part the rulings of the Tax Court, reverse in part, vacate the judgment, and remand the matter to the Tax Court for a new trial.
Background
2
Moretti and his wife, Lorraine Moretti ("Mrs. Moretti"), who were married in 1957, failed to file federal income tax returns for the 1990 and 1991 tax years. Pursuant to section 6212(a) of the Internal Revenue Code ("I.R.C."), 26 U.S.C. § 6212(a) (1994), the Commissioner of the Internal Revenue Service ("Commissioner") issued notices of deficiency to the Morettis for the two tax years. The Commissioner determined deficiencies for the years at issue in the amounts of $1,924 and $4,713, respectively, and tax additions in the amounts of $285 and $1,081.36, respectively. In making these determinations, the Commissioner deemed the Morettis' filing status as "married, filing separate."
3
The Morettis' subsequently filed income tax returns for the two years, claiming a "married, filing joint return" status. Moretti claimed earned taxable income of $17,564 for 1990, and $29,698 for 1991. The Morettis' 1990 return listed Schedule C business losses of $31,763 from Mrs. Moretti's T-shirt and souvenir business. Their 1991 return listed a $14,012 loss of income based on a carryover from the previous year of Mrs. Moretti's business loss, as well as a Schedule C loss of $1,130 from Mr. Moretti's photography business.
4
After filing the returns, Moretti petitioned the United States Tax Court for a redetermination of the Commissioner's deficiency and tax addition determinations for the two tax years at issue. According to Moretti, the Commissioner used the wrong filing status and should have considered the Morettis' Schedule C losses in determining the tax deficiencies and additions. Moretti also contended that, in light of the Morettis' correct filing status and the claimed losses, he and his wife actually overpaid their taxes in 1990 and 1991 through their employment withholdings, and were due refunds. In addition, Moretti claimed that he had overpaid his 1989 taxes by $698, for which he was entitled to a refund.
5
A trial of the issues raised in Moretti's petitions was conducted before the Tax Court on October 18, 1994; Moretti appeared pro se. The Tax Court first considered a motion by the Commissioner to dismiss Moretti's claim that he was entitled to a refund for overpaying his 1989 income taxes. The Commissioner argued that the Tax Court lacked jurisdiction to hear the claim, because the Commissioner had not sent a statutory notice of deficiency to Moretti for the 1989 tax year. Moretti contended that a proposed individual income tax assessment letter sent to him by the Commissioner dated April 15, 1993, in which Moretti was notified of the Commissioner's computation of Moretti's estimated tax, penalties and interest for the 1989 tax year, based upon income reported by banks and Moretti's employer, constituted a notice of deficiency within the meaning of I.R.C. § 6212(a). Attached to the proposed tax assessment were the Commissioner's calculations of the proposed deficiency and tax penalties. The Tax Court held that the assessment did not constitute a statutory notice of deficiency, and granted the Commissioner's motion to dismiss the claim for a refund of the alleged 1989 tax year overpayment.
6
The Tax Court next considered the issue of the Morettis' filing status. Moretti offered his marriage certificate to show that he was legally married. Despite marital difficulties resulting in his wife's moving to Florida, Moretti contended he had gone to live with his wife in Florida in 1989 and 1990. When asked by the court whether he would produce his wife as a witness, he informed the court that he would not because she was ill and he did not want to exacerbate her condition. The Tax Court found Moretti's testimony "most unbelievable," and determined that Moretti failed to overcome the presumption of correctness to which the Commissioner's determination was entitled.
7
The Tax Court then turned to Moretti's alleged Schedule C business losses. In accordance with a pre-trial order requiring documents proposed for use at trial to be identified and exchanged at least 15 days prior to trial, Moretti had submitted to the Commissioner copies of a "contract of sale" to his wife and various cancelled checks. Moretti claimed that these documents proved the $31,763 loss from his wife's T-shirt and souvenir business. On the day before the trial was to commence, and again on the morning of the trial, Moretti submitted to the Commissioner additional documents which he claimed further supported the loss and also substantiated his contention that his photography business was a for-profit business for which Schedule C business losses could be claimed. The Commissioner opposed the documents' admission.
8
With regard to the documents exchanged by Moretti immediately before the trial, the Commissioner argued that the documents should not be admitted as evidence because they were not timely provided to him as required by the pre-trial order. Moretti claimed that the documents concerning his wife's business had only recently been obtained from Florida. He also explained that the documents concerning his photography business were produced at such a late stage because the Commissioner had first contended that Moretti's photography business was a not-for-profit business which did not qualify for Schedule C business loss deductions only a week prior to the trial. The Tax Court was not persuaded by Moretti's arguments and excluded all of the documents produced immediately prior to the trial.
9
With regard to the documents which were timely produced, namely the "contract of sale" and the checks which allegedly documented the $31,763 loss from Mrs. Moretti's business, the Commissioner objected to these documents' admissibility on the grounds that they could not be authenticated, were not original copies, and contained hearsay. The Tax Court agreed with the Commissioner and, over Mr. Moretti's objections, granted the Commissioner's motion to exclude all of the documents.
10
Frustrated with the Tax Court's ruling excluding all of his documentary evidence, Moretti accused the Tax Court of being partial to the Commissioner. Thereafter, he refused to make any further arguments, stating, "I'm wasting my time in this Court." Accordingly, the case was taken under submission. Later that day, the Tax Court issued a bench opinion in which it summarized its findings and oral rulings, and included further rulings on Moretti's objections to the Commissioner's deficiency and addition determinations. In addition to the rulings that Moretti failed to meet his burden of proof concerning his marital filing status and failed to put in any evidence substantiating the claimed Schedule C losses, the Tax Court (1) held that Moretti was liable for tax additions under I.R.C. § 6651(a) for 1990 and 1991, because he failed to file his tax returns for those years by the prescribed dates and he did not show that his failure was due to reasonable cause rather than willful neglect; (2) held that Moretti was not due a refund for alleged overpayments in the 1990 tax year, because the amount of any such refund was limited to the amount of tax Moretti had paid in the two years prior to receiving his notice of deficiency for the 1990 tax year, which in this case was zero; (3) disallowed Moretti's carryover of a claimed net operating loss for the year 1991; and (4) ruled that Moretti was liable for an addition under I.R.C. § 6654(a) for the year 1991, because of insufficient withholdings of taxes that year. The Tax Court subsequently issued two orders finalizing its decision and judgment.
11
Moretti then brought the present appeal, challenging each of the Tax Court's rulings.Discussion
12
We review each of the Tax Court's rulings, keeping in mind that its "conclusions of law are examined de novo, while findings of fact are upheld unless clearly erroneous." Friedman v. Commissioner of Internal Revenue, 53 F.3d 523, 528 (2d Cir.1995). The Tax Court's application of the Federal Rules of Evidence, as well as its interpretation and application of its own procedural rules, is reviewed for abuse of discretion. See Estate of Shafer v. Commissioner of Internal Revenue, 749 F.2d 1216, 1218-19 (6th Cir.1984) (citing cases).
1. The 1989 Tax Refund
13
The Tax Court is a court of limited jurisdiction, and its jurisdiction can be exercised only pursuant to statutory authority. Belloff v. Commissioner of Internal Revenue, 996 F.2d 607, 611 (2d Cir.1993). The statutory authority granting the Tax Court jurisdiction to hear a taxpayer's claim for a redetermination of his or her tax liability is found in I.R.C. § 6213(a), which provides in relevant part that, subject to several exceptions not applicable here, "no assessment of a deficiency in respect of any tax imposed ... and no levy or proceeding in court for its collection shall be made" until a notice of deficiency has been sent to the taxpayer in accordance with I.R.C. § 6212(a) and the 90 day period within which to file a petition for redetermination has elapsed. A notice of deficiency is, accordingly, considered the "jurisdictional prerequisite to a taxpayer's suit in the Tax Court for redetermination of his tax liability." Laing v. United States, 423 U.S. 161, 165 n. 4, 96 S.Ct. 473, 477 n. 4, 46 L.Ed.2d 416 (1976). See also Deutsch v. Commissioner of Internal Revenue, 599 F.2d 44, 45 (2d Cir.1979) ("[T]he Tax Court cannot assert jurisdiction unless a petition is filed within ninety days after a deficiency notice has been mailed by the Commissioner."), cert. denied, 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980).
14
Moreover, where, as here, the taxpayer receives a notice of deficiency for a particular tax year and files a petition with the Tax Court for a redetermination of the stated deficiency, but appends to the petition a claim for a tax refund arising from overpayment of taxes in a year other than the tax year at issue in the notice, the Tax Court lacks jurisdiction to hear the refund claim. See I.R.C. § 6214(b) (providing, in pertinent part, that in redetermining a deficiency of income tax for any taxable year, the Tax Court "shall have no jurisdiction to determine whether or not the tax for any other year or calendar quarter has been overpaid or underpaid."); see also Belloff, 996 F.2d at 613; Kartrude v. Commissioner of Internal Revenue, 925 F.2d 1379, 1385 (11th Cir.1991). In order for the taxpayer to properly invoke the jurisdiction of the Tax Court to hear a refund claim, the Commissioner must have mailed to the taxpayer a notice of deficiency for the tax year in which the refund is being claimed.
15
Moretti contends that the Tax Court erred in holding that it did not have jurisdiction to consider his claim concerning the 1989 tax year refund. According to Moretti, the proposed individual income tax assessment sent to him by the Commissioner dated April 15, 1993, constitutes a "notice of deficiency" under I.R.C. § 6212(a). His argument is unpersuasive.
16
While the Tax Code "does not prescribe the appropriate content of a notice of deficiency, at a minimum it must identify the taxpayer, indicate that the Commissioner has made a determination of deficiency, and specify the taxable year and amount of the deficiency." Andrew Crispo Gallery, Inc. v. Commissioner of Internal Revenue, 16 F.3d 1336, 1340 (2d Cir.1994). In the instant case, the April 15, 1993, proposed tax assessment letter does not contain a final determination of deficiency. Rather, the letter is merely a preliminary, pre-filing notification letter of an estimated tax assessment and penalties. As such, it does not constitute a notice of deficiency under section 6212(a). See, e.g., id. at 1340-41 (distinguishing cases where "the Commissioner had made no determination of deficiency because the notice of deficiency in each case revealed on its face that it had been issued without any prior inspection of the taxpayer's income tax return."); Gaska v. Commissioner of Internal Revenue, 800 F.2d 633, 634-35 (6th Cir.1986) (following other circuits in holding "that the pre-filing notification letter was not a notice of deficiency, and so did not give plaintiffs their 'ticket to the tax court.' ").
17
Accordingly, the Tax Court was correct to hold that it did not have jurisdiction to consider Moretti's claim concerning the refund for the 1989 tax year.
2. Marital Filing Status
18
A notice of deficiency sent to a taxpayer pursuant to section 6212 "carries a presumption of correctness requiring the taxpayer to prove by a preponderance of the evidence that the Commissioner's determination was erroneous." Andrew Crispo Gallery, 16 F.3d at 1341. To rebut the Commissioner's determination that Moretti's filing status was "married filing separately," Moretti presented his marriage certificate, dated May, 1957, as evidence that he was in fact married to his wife. He also testified that although he had been separated from his wife "on and off" since the 1970s, he had "co-habitate[d]" with her in Florida during the 1989 and 1990 tax years. He further testified that he remained "legally" married to her, and that every tax return he had filed from 1957 to 1990 indicated that his status was "married, filing jointly." Finally, on cross-examination, he testified that his wife had co-signed their 1990 tax return.
19
To determine the validity of Moretti's filing status, the Tax Court inquired as to whether Mrs. Moretti would testify at the hearing. Moretti answered that she would not testify because she was physically ill, and added that he would "not let [the I.R.S.] put a nail in ... her coffin...." After considering the testimony, the Tax Court held that Moretti had "made no serious effort" to prove he was entitled to a joint filing status, and that he "utterly failed to meet his burden of proof" on the issue. The Commissioner contends that the Tax Court's ruling is not erroneous. We disagree.
20
Under the I.R.C., a taxpayer who is married is entitled to file a joint tax return with his or her spouse. See I.R.C. § 6013(a). A taxpayer is not, however, considered "married" if he or she "is legally separated from his [or her] spouse under a decree of divorce or of separate maintenance." I.R.C. § 6013(d)(2) (emphasis added). In interpreting the same language contained in the predecessor statute to section 6013(d)(2), courts have held that the section contemplates legal separation under a final decree of divorce or a decree of separate maintenance. See, e.g., Eccles v. Commissioner of Internal Revenue, 19 T.C. 1049, 1051, 1054, 1953 WL 287 (an interlocutory divorce decree under Utah law does not constitute final legal separation within the meaning of the statute, thus permitting joint filing), aff'd, 208 F.2d 796 (4th Cir.1953) (per curiam); Lane v. Commissioner of Internal Revenue, 26 T.C. 405, 407, 1956 WL 662 (1956) (same rule under California interlocutory divorce decree); Seaman v. Commissioner of Internal Revenue, 29 T.C.M. (CCH) 1331, 1333, 1970 WL 1813 (1970) ("[B]oth the statutory language and the language in [the Senate Report] couple the term 'legally separated' with the phrase 'under a decree of divorce,' and the latter phrase cannot be ignored."), aff'd, 479 F.2d 336 (9th Cir.1973).
21
Moretti clearly rebutted the correctness of the Commissioner's filing status determination when he submitted his marriage certificate and testified that (1) he had always filed jointly with his wife, and (2) he continued to cohabit with her from time to time during 1989 and 1990. Moretti having done so, it was then necessary for the Commissioner to come forward with evidence showing that Moretti was "legally separated" from his wife under a divorce decree or a decree of separate maintenance, and, thus, was not entitled to the joint filing status under section 6013(d)(2). See Demkowicz v. Commissioner of Internal Revenue, 551 F.2d 929, 931 (3d Cir.1977) (once a taxpayer overcomes the presumption of correctness by presenting competent and relevant evidence, the Commissioner has the burden of coming forward with evidence).
22
Accordingly, the Tax Court's ruling that Moretti failed to overcome the presumption of correctness is erroneous. In order for the Commissioner's determination to remain valid, the Commissioner must come forward with evidence showing Moretti is in fact legally separated or divorced from his wife within the meaning of the statute.
3. Schedule C Business Losses
23
In analyzing the Tax Court's ruling regarding Moretti's claimed business loss deductions, it is necessary to separately consider three categories of documents: (1) documents related to Moretti's photography business that were produced immediately prior to the trial; (2) documents related to Mrs. Moretti's business that were produced immediately prior to trial; and (3) documents related to Mrs. Moretti's business that were timely produced in accordance with the Tax Court's pre-trial order.
24
Preliminarily, we note that Rule 143(a) of the Tax Court Rules provides, in relevant part, that trials before the Tax Court shall be conducted in accordance with the Federal Rules of Evidence. See I.R.C. § 7453, Tax.Ct.R. 143(a); accord Ruberto v. Commissioner of Internal Revenue, 774 F.2d 61, 63 (2d Cir.1985). We also note that pro se litigants like Moretti are given some latitude in prosecuting their cases. See id. at 64 (in an action where the Tax Court precluded a pro se petitioner from submitting photocopies of checks, the Tax Court abused its discretion in "fail[ing] to give the [petitioners] a reasonable opportunity to obtain and submit the original checks which they claimed they could produce."); Christensen v. Commissioner of Internal Revenue, 786 F.2d 1382, 1384-85 (9th Cir.1986) (tax court is required to liberally construe pro se litigant's pleadings when applying its rules of practice and procedure).
25
As to the first category of documents, Moretti asserts that his production of the photography business documents was in response to the Commissioner's claim that Moretti's photography business was not-for-profit. Moretti contends that the Commissioner first asserted this claim one week prior to the trial, and as a result, he could not have produced the documents any earlier. We hold that because the issue of whether Moretti's photography business is for profit or not was raised by the Commissioner on the eve of trial, the Tax Court abused its discretion in excluding the documents on the ground that they were untimely produced. If Moretti is to be bound by the pre-trial order as to that evidence which he may seek to introduce, fundamental fairness dictates that the Commissioner is concomitantly bound by that order as to which arguments he may raise. While, ordinarily, the trial court does not abuse its discretion in denying a party's request to raise a new issue on the eve of trial when that issue could have been raised earlier, see, e.g., Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 749-50 (2d Cir.1984) (denial of motion to assert a claim of indemnification on the eve of trial is not an abuse of discretion, as the claim could have been raised earlier by moving to amend the answer); Durrett v. Commissioner of Internal Revenue, 71 F.3d 515, 518 (5th Cir.1996) (denial of taxpayers' motion eight days before trial to amend the petition in order to state a new claim for tax credit is not an abuse of discretion, where the claim could have been raised earlier), where, as here, the trial court allows one party to raise such an eleventh hour argument, it is not consistent with "sound discretion" to deny the other party the chance to introduce evidence in opposition thereto.
26
Accordingly, the Tax Court abused its discretion in excluding the documents produced by Moretti to support the for-profit nature of his business, on the ground that the documents were untimely produced. Moretti must be allowed the opportunity to offer into evidence the documents he claims will refute the Commissioner's position, provided he complies with the applicable rules of evidence.
27
As to the second category of documents, the Tax Court did not abuse its discretion in excluding documents related to Mrs. Moretti's T-shirt and souvenir business that were untimely produced under the provisions of the pre-trial order. Moretti was required to produce these documents at least fifteen days before the first day of the trial. Because he did not do so, the Tax Court acted within its discretion in excluding the documents.
28
With regard to the third category of documents--namely, the copy of an agreement for sale and copies of checks, some drafted by Mrs. Moretti and others being cashier's or bank checks,--the Tax Court abused its discretion in excluding these documents. The Commissioner objected to the admission of the sale agreement on the grounds that (1) Moretti could not authenticate the agreement, (2) the document was a copy of an original and therefore violated the best evidence rule, and (3) the document contained hearsay, because Moretti was not a party to the agreement and none of the parties listed in the agreement were present in court. Without hearing argument from Moretti, the Tax Court agreed with the Commissioner and excluded the agreement. The Commissioner raised similar objections to the admission of the copies of the checks. Again, without giving Moretti a chance to respond, the Tax Court stated that "[t]hese xerox copies have no value," and granted the Commissioner's motion to exclude the copies of the checks.
29
It was an abuse of discretion for the Tax Court not to allow Mr. Moretti the opportunity to lay a proper foundation for admitting the copies of the contract of sale and checks into evidence. With regard to authentication, Rule 901(b)(1) of the Federal Rules of Evidence provides that authentication of a document is met by the testimony of a witness with knowledge that the matter is what it is claimed to be. Moretti should be given the opportunity to produce such a witness, or to attempt to authenticate the documents by any of the means delineated in Rules 901 or 902.
30
Likewise, Moretti should be given the opportunity to lay a proper foundation for admitting the documents under one or more of the hearsay exceptions delineated in Rule 803 of the Federal Rules of Evidence. Toward this end, we note that the checks and contract for sale may well be admissible under the "business records" exception set forth in Rule 803(6). See United States v. Palmiotti, 254 F.2d 491, 497 (2d Cir.1958) (checks that were records of company's payments to extortionist and kept in ordinary course of business were properly received to corroborate testimony that payments were made to extortionist); see also United States v. Palmer, 766 F.2d 1441, 1446 (10th Cir.1985); United States v. Sheppard, 688 F.2d 952, 953 (5th Cir.1982) (per curiam ). Mrs. Moretti's testimony would cure any hearsay problem concerning the checks she drafted.
31
Lastly, notwithstanding the best evidence rule, Rule 1003 of the Federal Rules of Evidence provides that "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." The Tax Court Rules contain a similar provision, which states in relevant part that, "[a] clearly legible copy of any ... document may be offered directly in evidence in lieu of the original, where there is no objection, or where the original is available but admission of a copy is authorized by the Court;...." I.R.C. § 7453, Tax Ct.R. 143(d). By simply stating that "[t]hese xerox copies have no value," the Tax Court made no inquiry into the applicability of Rule 1003 or Tax Ct.R. 143(d). Moreover, the Tax Court's hollow explanation for the documents' exclusion precluded Moretti from rectifying his mistakes and laying the proper foundation for their admission. Moretti was entitled to more latitude. See Ruberto, 774 F.2d at 64.
32
We emphasize, however, that if Moretti wishes to pursue his claims, then he must follow the applicable evidentiary rules and lay the proper foundation for the admission of his documents into evidence, including calling all relevant witnesses. While the demands of litigation may appear great to a pro se litigant, Moretti's exasperation with the court's rulings does not excuse the need to follow the procedures necessary to establish his case.
4. Tax Additions
33
The Commissioner imposed the following tax additions on Moretti: for the tax year 1990, $285 pursuant to I.R.C. § 6651(a); for the tax year 1991, $885.25 pursuant to I.R.C. § 6651(a) and $196.11 pursuant to I.R.C. § 6654(a). Section 6651(a) provides for certain specified additions to a taxpayer's income taxes if the tax returns are not timely filed, unless the failure to timely file the return "is due to reasonable cause and not due to willful neglect." I.R.C. § 6651(a). Section 6654(a) provides for certain specified additions to income taxes if the taxpayer fails to pay, or underpays, an estimated income tax. See I.R.C. § 6654(a).
34
The Tax Court held that Moretti did not provide an explanation for his failure to timely file his 1990 and 1991 tax returns and, accordingly, affirmed the additions imposed by the Commissioner. In light of our discussion in the previous sections, the Tax Court abused its discretion in affirming the Commissioner's additions without giving Moretti a meaningful opportunity to be heard and the latitude which adheres to his pro se status. With respect to the additions imposed under section 6651(a), Moretti should be given the opportunity to explain whether his failure to timely file was "due to reasonable cause and not due to willful neglect." Likewise, the Tax Court must reconsider the addition under section 6654(a) for the 1991 tax year, because it may find that the Commissioner overestimated Moretti's tax liability by using the wrong filing status and/or because Moretti is entitled to the business loss deductions he claims, and therefore Moretti's withholdings may well have satisfied his tax liability for that year.
5. Refund for Claimed Overpayment in 1990
35
As explained earlier, Moretti claimed that, because he and his wife were entitled to a $31,763 business loss resulting from Mrs. Moretti's T-shirt and souvenir business, he overpaid his 1990 income tax withholdings and was entitled to a refund of $820.48. The Commissioner contended that, even if Moretti was entitled to the business loss, Moretti's maximum potential refund was, in this case, zero, because of the refund limitation provisions contained in I.R.C. §§ 6511(b)(2)(B) and 6512(b)(3)(B). The Tax Court agreed with the Commissioner, and held that Moretti was entitled to a zero refund.
36
Where, as here, the Commissioner issues a notice of deficiency and the taxpayer has failed to file a tax return as of the date the notice is mailed, the Tax Court, in any subsequent petition by the taxpayer seeking a refund of overpaid taxes in the Tax Court, is limited in determining the amount of the refund to the taxes paid by the taxpayer in the two years prior to the date the notice of deficiency was mailed. See I.R.C. §§ 6511(b)(2) and 6512(b)(3)(B); Commissioner of Internal Revenue v. Lundy, --- U.S. ----, ----, 116 S.Ct. 647, 652, 133 L.Ed.2d 611 (1996); Davison v. Commissioner of Internal Revenue, 64 T.C.M. (CCH) 1517, 1518-19, 1992 WL 366470 (1992), aff'd without opinion, 9 F.3d 1538 (2d Cir.1993). Moretti's notice of deficiency for the 1990 tax year was mailed on July 20, 1993, and Moretti had not filed his 1990 tax return by that date. As a result, Moretti's claimed refund is limited to the amount of 1990 taxes paid by him in the two years prior to the mailing of the notice of deficiency. According to the Commissioner, the only tax payments made by Moretti for the 1990 tax year were the withholding credits from his wages, which under the I.R.C. are deemed to have been paid as of April 15, 1991. See I.R.C. § 6513(b)(1). Because the withholding taxes were paid more than two years before the notice of deficiency was mailed, the Tax Court correctly determined that Moretti was entitled to a zero refund.
37
Moretti also contends, however, that part of the refund relates to a "worthless debt," and, therefore, the applicable limitation period is not the two year period set forth in section 6511(b)(2), but rather the seven year limitation period set forth in I.R.C. § 6511(d)(1). Under section 6511(d)(1), the limitation period for filing a refund claim is extended to seven years from the date the tax return was to be filed if the refund relates to an overpayment of tax resulting from the deduction of a debt "which became worthless." See I.R.C. § 6511(d)(1)(A). If Moretti is able to provide evidence of the alleged Schedule C business losses for the 1990 tax year, the Tax Court must also consider whether sufficient evidence was presented to support Moretti's claim that the debt was "worthless," thus triggering the seven year limitation period in section 6511(d)(1). Should Moretti present such evidence, then the amount of Moretti's refund may exceed the refund limitation under section 6511(b)(2), to the extent of the amount of the overpayment attributable to the worthless debt.
6. Carryover of 1990 Net Operating Loss
38
In his 1991 tax return, Moretti claimed a net operating loss ("NOL") deduction in the amount of $14,012.27, based on a "carryover" of the Schedule C business loss claimed in his 1990 tax return. Under the I.R.C., NOLs, generally defined as the excess of deductions allowed by the income tax law over the taxpayer's gross income, see I.R.C. § 172(c), are first applied to the year of the loss, and any unused portion of the NOL is then applied against the income of each of the three years preceding the year of the loss (the NOL is "carried back"). If there is still any unused portion of the NOL after the carryback years, it is applied to the years following the loss (the NOL is "carried over") for a maximum of fifteen years, or until the NOL dissipates. See I.R.C. § 172(b)(1)(A). The carryback of NOLs can be waived by the taxpayer, provided that the waiver is made by "the due date (including extensions of time) for filing the taxpayer's return" for the taxable year in which the NOL occurs. I.R.C. § 172(b)(3).
39
The Tax Court denied Moretti's claim for the carryover of the 1990 NOL to the 1991 tax year, on the ground that, because Moretti failed to timely file his 1990 tax return, he failed to make his election to waive the carryback of the NOL by the due date for filing the 1990 tax return, namely April 15, 1991. In addition, because Moretti failed to substantiate the carryback for the three years preceding 1990, the Tax Court disallowed the carryover. On appeal, the Commissioner contends that the Tax Court correctly decided the carryover issue, because (1) Moretti failed to establish any of the losses claimed for the 1990 tax year resulting in the NOL, and (2) assuming there was a loss shown, Moretti failed to demonstrate that some or all of the NOL could have been applied against the income of the three years prior to 1990.
40
The Tax Court correctly ruled that Moretti failed to elect to waive the carryback provisions, and therefore was not entitled automatically to carry over the NOL on the basis of such a waiver. Moretti neither made the waiver on the date the income tax return was due, nor obtained an extension. However, the Tax Court erred in disallowing Moretti's carryover of the NOL on the basis of his failure to substantiate the carryback for the three years preceding 1990. Moretti was given neither the opportunity to substantiate the claimed NOL in 1990, nor the chance to demonstrate the extent to which the NOL applied to the carryback years. Moreover, he was not allowed to demonstrate that any unused portion of the NOL remained after the carryback that could be carried forward into 1991. Provided that he is able to offer evidence to this effect, Moretti should be given the opportunity to establish that there was a NOL in 1990, and that it carried back and forward for the relevant years.
Conclusion
41
In sum we hold that the Tax Court (1) correctly held that it did not have jurisdiction to consider Moretti's claim concerning the refund for the 1989 tax year; (2) erred in ruling that Moretti did not overcome the presumption of correctness concerning the Commissioner's determination of Moretti's tax filing status; (3) abused its discretion in excluding the documents produced by Moretti to support the for-profit nature of his business, on the ground that the documents were untimely produced; (4) properly acted within its discretion in excluding documents related to Mrs. Moretti's business that were untimely produced under the provisions of the Tax Court's pre-trial order; (5) abused its discretion in excluding the documents related to Mrs. Moretti's business that were timely produced, namely the copy of an agreement for sale and copies of checks; (6) abused its discretion in affirming the Commissioner's additions under sections 6651(a); (7) committed clear error in ruling that the additions under 6654(a) were warranted; (8) correctly ruled that Moretti was entitled to a zero refund for the claimed overpayment in 1990 on the basis of the two year refund limitation set forth in section 6511(b)(2), except to the extent that Moretti can show a portion of the overpayment was attributable to "worthless debt" triggering a seven year limitation period under I.R.C. § 6511(d)(1); (9) correctly ruled that Moretti failed to elect to waive the carryback provisions, and therefore was not entitled to automatically carryover the claimed NOL on the basis of such a waiver pursuant to section 172(b)(3); and (10) abused its discretion in disallowing Moretti's carrying over the NOL on the ground that Moretti failed to substantiate the carryback for the three years preceding 1990.
42
For the reasons stated above, the judgment of the Tax Court is affirmed in part, reversed in part, vacated, and remanded for proceedings consistent with this opinion.
| {
"pile_set_name": "FreeLaw"
} |
FILED
Jun 26 2020, 10:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Frederick W. Schultz Charles C. Dubes
Greene & Schultz Larry L. Barnard
Bloomington, Indiana Carson, LLP
Fort Wayne, Indiana
Gerald W. Mayer
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Effie Rogers, Mother and a/n/f June 26, 2020
and as Personal Representative Court of Appeals Case No.
of the Estate of Deborah 20A-CT-258
Williams, deceased, Appeal from the St. Joseph Circuit
Appellant-Defendant, Court
The Honorable John E. Broden,
v. Judge
Trial Court Cause No.
Dr. D and Clinic C, 71C01-1906-CT-233
Appellees-Plaintiffs.
Riley, Judge.
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 1 of 12
STATEMENT OF THE CASE
[1] Appellant-Petitioner, Effie Rogers, Mother and a/n/f and Personal
Representative of the Estate of Deborah Williams (Rogers), appeals the trial
court’s grant of summary judgment in favor of Appellees-Respondents, Dr. D
and Clinic C (Collectively, Dr. D), concluding, as a matter of law, that Rogers’
claims are barred by the statute of limitations.
[2] We affirm.
ISSUE
[3] Rogers presents three issues on appeal, which we consolidate and restate as the
following single issue: Whether, as a matter of law, Rogers’ claims, brought
under the Medical Malpractice Act, are barred by the statute of limitations.
FACTS AND PROCEDURAL HISTORY
[4] On April 17, 2015, Deborah Williams (Williams) consulted Dr. D for
complaints of right hip pain. Williams was a returning patient as Dr. D had
previously performed a left hip decompression surgery in 2003 and a total right
hip replacement surgery in 2007. After the consultation, Dr. D scheduled
Williams for surgery and she was admitted to the Memorial Hospital of South
Bend on May 18, 2015, undergoing surgery that same day. While performing
the surgery, Dr. D noted that the stem of Williams’ prosthetic was firmly fixed,
and he made numerous attempts to cut and remove the prosthesis. During one
of these attempts, Dr. D shattered Williams’ femur. In the recovery room, a
subluxation of Williams’ right hip was discovered and she was returned to the
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 2 of 12
operating room for reduction. At all times during these proceedings, Dr. D was
acting in the course and scope of his employment with Clinic C.
[5] Williams remained in the hospital following the surgery. On May 27, 2015, Dr.
D issued his Final Progress Note, memorializing his intent to discharge
Williams later that day. However, a nurse tending to Williams requested a
consultation because of Williams’ complaints of persistent hypertension,
clumsiness, and cold limbs. Williams was not discharged and received further
treatment at the hospital by other medical professionals, with Dr. D remaining
her attending physician. She passed away on June 20, 2015. Dr. D wrote the
death discharge on June 20, 2015, summarizing the details of her admittance,
surgery, and treatment.
[6] On June 16, 2017, Rogers filed a Proposed Complaint for damages under the
Medical Malpractice Act with the Indiana Department of Insurance stemming
from the medical treatment and death of Williams. Rogers alleged that the care
and treatment Williams received from Dr. D during the surgical procedure and
post-operative follow-up were substandard and caused her death.
Subsequently, Rogers made her submission to the Medical Review Panel,
setting forth with specificity the dates on which the alleged medical malpractice
by Dr. D occurred.
[7] On June 24, 2019, before the medical review panel issued its determination, Dr.
D filed a Petition for Preliminary Determination of Law with the trial court and
moved for summary judgment, asserting that Williams’ Proposed Complaint
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 3 of 12
was barred by the two-year statute of limitations. On August 27, 2019,
Williams filed a reply in opposition to the motion for summary judgment. On
January 3, 2020, following a hearing, the trial court granted summary judgment
to Dr. D, concluding that, as a matter of law, Rogers’ claims were time-barred
by the two year statute of limitations under the Medical Malpractice Act.
[8] Rogers now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Standard of Review
[9] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 4 of 12
[10] We observe that, in the present case, the trial court entered findings of fact and
conclusions of law thereon in support of its judgment. Generally, special
findings are not required in summary judgment proceedings and are not binding
on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48
(Ind. Ct. App. 2004). However, such findings offer a court valuable insight into
the trial court’s rationale and facilitate appellate review. Id.
II. Analysis
[11] Rogers contends that the trial court erred in granting summary judgment to Dr
D based on the application of the statute of limitations under the Medical
Malpractice Act. 1 Because Dr. D was Williams’ attending physician from
Williams’ admittance to the hospital on May 18, 2015 through her passing on
June 20, 2015, and engaged in an entire course of alleged negligent conduct
during this period, Rogers maintains that the doctrine of continuing wrong
applies, resulting in a timely filing of the proposed complaint.
A. Statute of Limitations
[12] The Medical Malpractice Act’s statute of limitations is located in Indiana Code
section 34-18-7-1(b), which provides, in pertinent part, that:
1
Typically, a proposed medical malpractice complaint must first be filed with the Department of Insurance
for review by a medical panel prior to filing the complaint in court. See I.C. § 34-18-10-1. However, I.C. §
34-18-11-1(a) creates an exception that a court, as here, can acquire jurisdiction over the subject matter and
the parties to the proposed complaint to make a preliminary determination of an affirmative defense.
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 5 of 12
A claim, whether in contract or tort, may not be brought against
a health care provider based upon professional services or health
care that was provided or that should have been provided unless
the claim is filed within two (2) years after the date of the alleged
act, omission, or neglect[.]
Accordingly, the Act institutes an occurrence-based statute of limitations,
“meaning that an action for medical malpractice generally must be filed within
two years from the date the alleged negligent act occurred rather than from the
date it was discovered.” Houser v. Kaufman, 972 N.E.2d 927, 933 (Ind. Ct. App.
2012), trans. denied.
[I]n determining whether a medical malpractice claim has been
commenced within the medical malpractice statute of limitations,
the discovery or trigger date is the point when a claimant either
knows of the malpractice and resulting injury, or learns of facts
that, in the exercise of reasonable diligence, should lead to the
discovery of the malpractice and the resulting injury . . . The
issue to be determined is the point at which a particular claimant
either knew of the malpractice and the resulting injury, or learned
facts that would have led a person of reasonable diligence to have
discovered the malpractice and resulting injury. If this date is
less than two years after the occurrence of the alleged
malpractice, the statute of limitations bars the claim unless it is
not reasonably possible for the claimant to present the claim in
the remaining time, in which case the claimant must do so within
a reasonable time after the discovery or trigger date. If such date
is more than two years after the occurrence of the malpractice,
the claimant has two years within which to commence the
action.
David v. Kleckner, 9 N.E.3d 147, 152-53 (Ind. 2014) (citation omitted). “When a
defendant in a medical malpractice asserts the statute of limitations as an
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 6 of 12
affirmative defense, the defendant bears the burden of establishing that the
action was commenced outside the statutory period.” Manley v. Sherer, 992
N.E.2d 670, 674 (Ind. 2013).
[13] The designated evidence reflects that, in her submission of evidence to the
medical review panel, Rogers identified Dr. D’s alleged negligent conduct as
follows:
A. Dr. D should not have scheduled Williams for a revision
surgery given her recent cancer treatment;
B. Dr. D should not have scheduled Williams for a hip revision
surgery absent convincing evidence that a loosening prosthesis
was her problem;
C. Dr. D should have, at the least, had an internist clear
Williams for surgery or he should have done so himself, in
order to determine that she was a good surgical candidate;
D. Dr. D should have terminated the revision and closed when it
became manifest that Williams’ prosthesis was not loosening
but was in fact firmly fixed;
E. Dr. D should have had Williams followed by the hospitalist
post-op; and
F. Dr. D should have recognized that Williams’ medical
condition had deteriorated to the point that he was not able to
manage her medically.
(Appellant’s App. Vol. II, pp. 28-31).
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 7 of 12
[14] The act of malpractice, as alleged in the Proposed Complaint, is focused on Dr.
D’s revision surgery; without the surgery and subsequent post-operative
treatment, Williams might not have passed away. As such, May 18, 2015, is
the occurrence date. However, by May 27, 2015, i.e., the failed discharge date,
Williams had sufficient information that would have led a reasonably diligent
person to believe a medical mistake might have been made as a nurse tending to
Williams requested a further consultation because of Williams’ complaints of
persistent hypertension, clumsiness, and cold limbs. “A plaintiff does not need
to be told malpractice occurred to trigger the statute of limitations.” Brinkman
v. Beuter, 879 N.E.2d 549, 555 (Ind. 2008). Thus, with an alleged act of
malpractice occurring on May 18, 2015, and a trigger or discovery date of May
27, 2015, Rogers had sufficient information that would have led a reasonably
diligent person to the discovery of malpractice during the remaining 1 year, 11
months, and approximately 3 weeks of the two-year statute of limitations
period. As Rogers filed her Proposed Complaint on June 16, 2017, her action is
barred by the statute of limitations.
B. Continuing Wrong Doctrine
[15] In an effort to save her claim from being tolled, Rogers relies on the continuing
wrong doctrine by maintaining that Dr. D’s entire course of treatment as
Williams’ attending physician, from her admittance to the hospital until her
passing on June 20,1015, culminated into the resulting injury.
The doctrine of continuing wrong applies where an entire course of
conduct combines to produce an injury. When this doctrine attaches,
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 8 of 12
the statutory limitations period begins to run at the end of the
continuing wrong act. In order to apply the doctrine, the plaintiff
must demonstrate that the alleged injury-producing conduct was of a
continuous nature. The doctrine of continuing wrong is not an
equitable doctrine, rather, it defines when an act, omission, or
neglect took place.
Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012) (emphasis
added) (citations omitted). For the doctrine to apply, the physician’s conduct
must be more than a single act. See id.
[16] In Garneau v. Bush, 838 N.E.2d 1134, 1146 (Ind. Ct. App. 2005), trans. denied,
relied upon by Rogers, we reversed the trial court’s grant of summary judgment
in favor of the doctor. The patient in Garneau had her hip replaced on March
17, 1998, with an obsolete prosthesis. Id. at 1138. After the replacement, the
patient experienced pain and dislocated her new prosthesis twice. Id. Instead
of recommending revisions, the doctors treated the patient by prescribing pain
medication, ordering x-rays, evaluation, and physical therapy for more than six
months before the patient ultimately had to have a different prosthesis installed
on November 8, 1999. Id. at 1139. The patient filed a complaint for
malpractice on August 28, 2000, and the trial court considered it untimely and
granted summary judgment to the doctor. Id. On review, we first held that the
initial act of malpractice occurred on March 17, 1998, the day the obsolete
prosthesis was installed. Id. However, the patient asserted that the doctrine of
continuing wrong should apply, because the doctor’s negligent treatment was
continuous until November 8, 1999, thus tolling the commencement of the
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 9 of 12
statute of limitations. Id. at 1143-46. We held that under these facts and
circumstances, the patient had established a genuine issue of material fact as to
whether the doctor’s installation of an obsolete prosthesis, followed by
continuous treatment with pain medication and failure to recommend revision
at any point during six months or more following the surgery, constituted a
continuing wrong. Id. at 1145.
[17] On the other hand, in Anonymous Dr. A v. Foreman, 127 N.E.3d 1273, 1276 (Ind.
Ct. App. 2019), a patient instituted a medical malpractice action against a
physician, alleging that the physician surgically repaired the patient’s hip
fracture by inserting a femoral rod into the patient’s femur which he negligently
placed and which resulted in the rod’s fracture. The procedure occurred on
November 25, 2015, with the patient commencing an action on January 19,
2018. Id. After the trial court denied the physician’s motion for summary
judgment, this court reversed, concluding that the claims were barred by the
statute of limitations. Id. at 1279. We reached this conclusion by holding that
the misplacement of the femoral rod during surgery was an isolated event, not
conduct of a continuing nature. Id. at 1278. We noted that the physician’s
monitoring of the patient before and after the revision surgery did not set forth
any facts indicating that the physician’s conduct after inserting the femoral rod
amounted to malpractice. Id.
[18] Here, like in Foreman, Dr. D’s decision to schedule the surgery and his
corresponding decision not to terminate it were isolated events and not conduct
of a continuing nature. Likewise, his decision not to consult an internist to
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 10 of 12
obtain a medical clearance examination before surgery, identified as presumed
negligent in the Proposed Complaint, was an isolated event as it can be seen
independent and distinct from the surgery itself. 2 Rogers designated no
evidence in her Proposed Complaint that any treatment decisions made by Dr.
D after the surgery aggravated the injury. Thus, distinguished from Garneau,
while Dr. D monitored Williams before and after the surgery, Rogers fails to
put forth any specific facts to establish that Dr. D.’s conduct after the revision
surgery amounted to malpractice.
[19] In an effort to fit her claim within the premise of Garneau, Rogers contends that
we have to focus on Dr. D’s overall relationship with Williams as her attending
physician, who provided continuous care from the date of admittance until her
death. However, we remind Rogers that “Indiana courts understand the
[Medical Malpractice Act] to cover curative or salutary conduct of a health care
provider acting within his or her professional capacity.” Howard Reg’l Health
Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011) (emphasis added). In this light,
the Act defines malpractice as “a tort or breach of contract based on health care
or professional services that were provided, or should have been provided by a
health care provider, to a patient.” I.C § 34-18-2-18. Accordingly, the medical
malpractice act punishes negligent conduct or care provided to a patient by a
healthcare provider, regardless of the specific ongoing relationship between
2
Even if Dr. D’s decision not to consult an internist can be characterized as conduct of a continuing nature,
this event terminated on May 27, 2015 with the issuance of Dr. D’s Final Progress Note, and therefore, with
a filing date of June 16, 2017, the claim would still be barred under the statute of limitations.
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 11 of 12
them. Absent an explicit allegation of negligent treatment, Dr. D cannot be
held responsible based solely on the nature of his relationship as attending
physician to Williams.
[20] Accordingly, as we conclude that Dr. D’s act of negligence occurred on May
18, 2015, and that the doctrine of continuing wrong does not apply, Rogers’
claim is barred by the Medical Malpractice Act’s occurrence-based statute of
limitations.
CONCLUSION
[21] Based on the foregoing, we hold that, as a matter of law, Rogers’ claims,
brought under the Medical Malpractice Act, are barred by the statute of
limitations.
[22] Affirmed.
[23] Mathias, J. and Tavitas, J. concur
Court of Appeals of Indiana | Opinion 20A-CT-258 | June 26, 2020 Page 12 of 12
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10833
Summary Calendar
RAYE ELLEN STILES,
Plaintiff-Appellant,
versus
GTE SOUTHWEST INCORPORATED,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:94-CV-028-C
- - - - - - - - - -
June 27, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Raye Ellen Stiles appeals from the district court’s grant of
summary judgment, dismissing her Equal Pay Act claim under 29
U.S.C. § 206. Stiles argues that genuine issues of material fact
remain which preclude summary judgment. New alleged
inconsistencies raised on appeal are not subject to review.
Tichenor v. Roman Catholic Church of the Archdiocese of New
Orleans, 32 F.3d 953, 963 n.46 (5th Cir. 1994). We have reviewed
*
Pursuant to Local Rule 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 Local Rule
47.5.4.
No. 95-10833
- 2 -
the record and find no reversible error. Accordingly, we affirm
essentially for the reasons stated by the district court. See
Stiles v. GTE Southwest Inc., No. 6:94-CV-028-C (N.D. Tex. Aug.
17, 1995). Stiles has identified no abuse of discretion in the
district court’s denial of her postjudgment motion. See Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan.
1981).
Stiles’ motion to strike portions of appellee’s brief is
DENIED.
AFFIRMED.
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260 F.2d 117
John E. BALDWIN, Appellant,v.UNITED STATES of America, Appellee.
No. 7684.
United States Court of Appeals Fourth Circuit.
Argued Oct. 8, 1958.Decided Oct. 13, 1958.
Charles W. Laughlin, Richmond, Va. (court-appointed counsel), for appellant.
John Edward Baldwin, pro se, on brief.
Arthur G. Howe, Asst. U.S. Atty., Charleston, S.C. (N. Welch Morrisette, Jr., U.S. Atty., Columbia, S.C., on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and HARRY E. WATKINS, District Judge.
PER CURIAM.
1
The defendant entered a plea of guilty upon an indictment which charged, among other things, a violation of Title 18 U.S.C.A. 2113, in attempting to feloniously enter a bank, whose deposits were insured by the Federal Deposit Insurance Corporation, with the intention to commit a felony. Thereafter, he filed a motion under Title 28 U.S.C.A. 2255, to vacate the sentence, upon a number of grounds, which, after consideration, was denied. Judge, Wyche filed an opinion which discloses his careful consideration of the defendant's contentions. Baldwin v. United States., D.C.E.D.S.C., 141 F.Supp. 310.
2
Approximately two years later, the defendant again moved under Title 28 U.S.C.A. 2255 for an order vacating the sentence, this time complaining that he was not granted a hearing upon the first motion, challenging the accuracy of the stenographic transcript of the trial proceedings, questioning consideration by the Court of the return of the United States Attorney to the motion and of certain affidavits, and reasserting claimed jurisdictional objections urged in the first motion. The second motion received the consideration of the Court and was denied in an order dated April 14, 1958.
3
In this Court, the defendant urges principally his claimed jurisdictional objection, that the indictment does not allege a federal offense. Though the indictment is substantially in the language of Title 18 U.S.C.A. 2113, the defendant reasons that it charges a crime under state law, which is the first contention advanced in his first motion under 2255, Title 28 U.S.C.A., and in which we find no merit for the reasons stated by Judge Wyche. Baldwin v. United States, D.C.E.D.S.C., 141 F.Supp. 310.
4
The defendant's counsel, appointed by this Court to represent him in this proceeding, urged that the defendant was denied effective representation of counsel, for though a man of outstanding trial ability was appointed to represent him and did so, the appointment preceded the commencement of the trial by no more than approximately six hours. It appears, however, that the appointed counsel conferred with the defendant and with the FBI Agents who were the witnesses for the prosecution. When the case was first called, he asked for additional time, which was granted while the Court proceeded to take up other matters. When the case was again called, the defendant's counsel disclosed that there were no witnesses to be summoned and, no motion for a continuance having been made and no reason for further delay appearing, the trial was commenced. The defendant first entered a plea of not but changed his plea after the preliminary testimony of one witness had been taken.
5
We agree with the District Judge that the matter of the sufficiency of time for preparation of trial is not a matter to be raised upon a motion to vacate sentence, unless the circumstances were so extreme as to amount to a denial of due process. When the appointed counsel, who represented the defendant in the trial, affirms, as he has in an affidavit, that there were no witnesses to be summoned, and that he knew of no valid defense then and knows of none now, we cannot say that the six hours allowed were so short as to amount to a denial of due process. What may be a reasonable time in one case can be quite unreasonable in another, and the sufficiency of the time depends upon what is disclosed to counsel by his client and, in this instance, in his interviews with the witnesses for the prosecution. Apparently satisfied with his own investigation, we have no basis here for saying it was insufficient, and certainly we cannot conclude that it was so insufficient as to amount to a denial of effective representation of the defendant.
6
Affirmed.
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___________
No. 95-3035
___________
Inalene Lewis, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Benjamin Reynolds; Sharron * Western District of Arkansas.
Longino; Michael Dunaway; Arthur *
Paul Bowen; Mike Dunn; * [UNPUBLISHED]
United States of America, *
*
Appellees. *
___________
Submitted: April 26, 1996
Filed: May 2, 1996
___________
Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
___________
PER CURIAM.
Inalene Lewis appeals from the district court's1 order dismissing her
complaint with prejudice in this action arising out of the debtor-creditor
relationship between Lewis and the Farmers Home Administration (FmHA),
previous litigation between the parties, and the foreclosure on Lewis's
home. Having carefully reviewed the record and the parties' briefs, we
conclude the district court's judgment was correct. Accordingly, we
affirm. See 8th Cir. R. 47B.
1
The HONORABLE JIMM LARRY HENDREN, United States District
Judge for the Western District of Arkansas.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
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348 U.S. 296 (1955)
UNITED STATES
v.
GUY W. CAPPS, INC.
No. 14.
Supreme Court of United States.
Argued November 15, 1954.
Decided February 7, 1955.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
Solicitor General Sobeloff argued the cause for the United States. With him on the brief were Assistant Attorney General Rankin, Assistant Attorney General Burger, Oscar H. Davis, Paul A. Sweeney and Herman Marcuse.
W. R. Ashburn argued the cause and filed a brief for respondent.
MR. JUSTICE BURTON delivered the opinion of the Court.
In this case the United States District Court directed a verdict for respondent because petitioner failed to present evidence of either a breach of contract or resulting damages sufficient to sustain a verdict for petitioner. The *297 Court of Appeals, however, affirmed the judgment on the ground that the alleged contract was unenforceable. For the reasons hereafter stated, we agree with the District Court that the evidence was not sufficient to sustain the alleged breach of contract. Accordingly, we do not reach or pass upon the other grounds discussed by the Court of Appeals.
In 1948, the crops of Irish potatoes in the United States and Canada were among the largest on record. As a result, the United States, in § 1 (b) of the Agricultural Act of 1948, 62 Stat. 1247, 1248, obligated itself to support the sale of such potatoes at 90% of their parity price. This program was carried out through agreements of the Commodity Credit Corporation to purchase, from eligible growers or dealers in the United States, all Irish potatoes harvested before January 1, 1949, provided such potatoes could not be sold commercially at 90% of parity. As the unsupported Canadian prices were lower than the supported prices in the United States, it became profitable to import Canadian potatoes despite the tariff and freight charges. Recognizing that fact, Congress authorized investigations by the Tariff Commission, under the President's direction, which might lead to imposing quantitative limitations on imports or to increasing import fees. 62 Stat. 1248-1250, 7 U. S. C. § 624.
However, without resorting to that procedure, the United States acted through diplomatic channels. Its Acting Secretary of State and the Canadian Ambassador exchanged notes on November 23, 1948, purporting to consummate an executive agreement effective at once. For their text see Appendix, infra, at 305-309. Of special significance to this litigation are the undertakings made by Canada, in its note, to place its Irish potatoes under export control, to withhold export permits for the movement of table stock potatoes to the United States, and to issue export permits for the shipment of Canadian certified *298 seed potatoes to the United States only under specified circumstances. Those circumstances were that the shipments be limited to specified States where there was a legitimate demand for certified seed potatoes and to a short period before the normal seeding time. Permits were to be granted only to exporters having firm orders from legitimate United States users of Canadian seed potatoes, and those exporters were "to have included in any contract into which they might enter with a United States seed potato importer a clause in which the importer would give an assurance that the potatoes would not be diverted or reconsigned for table stock purposes." Appendix, infra, at 306. The agreement terminated June 20, 1949.
In December 1948, Guy W. Capps, Inc., a Virginia corporation, respondent herein, bought 48,544 one-hundred-pound bags of Canadian certified Irish seed potatoes from H. B. Willis, Inc., of Charlottetown, Prince Edward Island, a Canadian exporter. Before the exporter's shipment of them on the S. S. Empire Gangway to respondent at Jacksonville, Florida, respondent wired the exporter as follows: "Certified seed potatoes loaded on S. S. Gangway are for planting in Florida and Georgia." The shipment arrived at Jacksonville January 9, 1949.[1] On *299 January 11, the potatoes were all invoiced by respondent to the Atlantic Commission Company at Jacksonville as "48,544 Sax Canada No. 1 Seed Potatoes @ $3.35 f. o. b."[2]
In January 1951, the United States filed the instant action against respondent in the United States District Court for the Eastern District of Virginia, claiming that the above circumstances constituted a contract between the exporter and respondent for the benefit of the United States. The complaint alleged further, upon information and belief, that, in January 1949, respondent, in violation of such contract, "sold the 48,544 sacks of seed potatoes for table stock purposes" to the damage of the United States in the amount of approximately $150,486, "in that for each quantity of potatoes so imported from Canada and sold for table stock in the United States, a substantially equivalent quantity of potatoes produced in the United States was offered for sale to the Department of Agriculture, and had to be and was purchased by the Department under the Agricultural Act of 1948."
Respondent's motion to dismiss the complaint for failure to state a claim upon which relief could be granted was denied. 100 F. Supp. 30. However, at the close of petitioner's case and after argument of counsel, the court directed a verdict for respondent. Judgment was entered accordingly. The court's findings of fact and conclusions *300 of law were contained in its oral opinion. That opinion, which has not been published, included the following highly significant statements:
"The action here is for breach of contract made between a Canadian exporter and Capps, the American importer, and specifically of a stipulation placed in that contract which the Court has held was for the benefit of the United States.
"The expression constituting that stipulation is that certified seed potatoes loaded on the S. S. Gangway are for planting in Florida and Georgia. Now, assuming that the Court is correct in holding that that stipulation is an agreement within the meaning of the Executive Treaty or an assurance, as it is called in the Executive Treaty, to the effect that the potatoes would not be diverted or reconsigned for table stock purposesI say assuming that the Court is correct in holding that this provision is an assurance, there is no proof here sufficient to go to the jury that there has been such a diversion or reconsignment, or that there has been a lack of diligence or care on the part of this defendant to see to it that its assurance was carried out.
"In the first place, the only diversion or reconsignment was from the defendant to the Atlantic Commission Company. Now that was not a diversion or reconsignment for table stock purposes. Nor does it evidence any want of care on the part of the defendant to see that the assurance was kept, because the evidence shows that this defendant had from year to year sold to Atlantic, potatoes exclusively for seed purposes. The evidence does not justify or would not justify the jury in drawing a conclusion that it was a reckless abandonment by the defendant of its obligation to see to the use of *301 these potatoes because the defendant had the right to rely upon its previous experiences.
"But going further, and assuming that it was incumbent upon the defendant to follow up and see that this reconsignment did not lead to the use of the potatoes for table purposes, we find that the A & P, to whom Atlantic sold, did sell seed potatoes. It is true that it was not its entire trade in potatoes, but it did sell a large amount, described as its secondary function, for seed purposes, and the other sales by Atlantic to wholesalers or to the trade, as it is spoken of, were to firms which used potatoes for seed purposes or disposed of them for seed purposes, so that the sales by the defendant here were equally consistent with the compliance as with the violation of the assurance."
The Court of Appeals disagreed with the District Court on the above points.[3] However, it affirmed the judgment on the ground that the international agreement, which the contract between respondent and the exporter sought to carry out, was void. The court regarded it as not authorized by Congress and as contravening the provision for procedure through the Tariff Commission. The court also held that the suit must fail because no cause of action had been created by Congress for this type of injury. 204 F. 2d 655, 658-661. We granted certiorari to determine whether the significant constitutional and statutory questions discussed by the Court of Appeals were necessary for the decision of the case and, if so, to give them consideration. 346 U. S. 884.
We have first examined the record in order to pass upon the preliminary questions on which the Court of Appeals *302 disagreed with the trial court. See Walling v. General Industries Co., 330 U. S. 545, 547, 550, and see also, Story Parchment Co. v. Paterson Parchment Co., 282 U. S. 555, 560, 567-568.
Respondent's alleged obligation is stated in its first telegram, which must be read in the light of the above-mentioned correspondence between the United States and Canada. That correspondence recognized that importations of Canadian seed potatoes, as well as of Canadian table stock potatoes, might displace eligible American potatoes in American commercial markets and thus might add to the burden of the American price-support program. The correspondence, nevertheless, did not seek to exclude Canadian seed potatoes. On the contrary, it provided for the continuance of shipments of seed potatoes to specified States in the United States, during a short period immediately prior to the normal seeding time. In addition, Canada agreed to require its exporters to secure assurance from each importer of Canadian seed potatoes that such potatoes would not be diverted or reconsigned for table stock purposes. In effect, this agreement stopped the regular Canadian-American trade in Canadian table stock potatoes, while preserving such trade in Canadian seed potatoes. There was no suggestion that each importer, during the short open season for Canadian seed potatoes, had to take any new or extraordinary affirmative steps to see to it that the ultimate purchasers never ate their seed potatoes, or that each American retailer of Canadian seed potatoes, in its usual course of business, segregated such potatoes from table stock potatoes in any manner not customary in the sale of seed potatoes.
The undisputed evidence showed that the entire shipment to Jacksonville was made in containers with markings and tags identifying the potatoes as "Canadian No. 1 seed potatoes." There was no showing that this identification *303 was separated from the potatoes at any point short of the ultimate offering of some of the potatoes at retail. There was, in short, no evidence that any of the potatoes were at any time reconsigned or otherwise treated except as had been customary in prior commercial dealings in seed potatoes.
At Jacksonville the entire shipment was invoiced by respondent to the Atlantic Commission Company as "Canada No. 1 Seed Potatoes." Most of the 10,000 sacks (which, at the time of their delivery to that company in Jacksonville, were resold by it to respondent) were invoiced by respondent to other customers in a like manner.[4] The Atlantic Commission Company, in turn, invoiced to its purchasers, in the same manner, the sacks which it received from respondent. Of them, 13,627 sacks were invoiced by the Commission Company to its parent company, the Great Atlantic & Pacific Tea Company, at three points in Florida and one in Georgia, but 1,641 sacks were invoiced to points in Alabama. The Great Atlantic & Pacific Tea Company primarily sold foodstuffs but also dealt in vegetables for planting purposes, such as seed potatoes, onion sets and cabbage sets. It sold seed potatoes not only to home gardeners but to planters of small commercial acreages. The Commission Company invoiced the remaining 24,926 sacks to over 30 separate dealers in Florida and Georgia, but invoiced 2,309 to points in Alabama. All of the consignees were dealers in vegetables and groceries, and the primary volume of their trade was in articles for food. But there was testimony that some of these dealers customarily handled seed potatoes for planting purposes and there was no evidence that any of them did not. Respondent previously had sold seed potatoes to the Atlantic Commission Company and that company had used channels of distribution comparable *304 to those used in this instance. There was no evidence of the reconsignment of any of these seed potatoes for table stock, or of the diversion of any of them from the commercial channels theretofore usually used for sales of seed potatoes in this area during the planting season. Exception has not been taken to the States designated or to the times when the sales were to be made.
The evidence also did not support the suggestion that some of these potatoes were unsuitable for planting in the areas designated. It was not enough that one witness said that only 20% of the original shipment consisted of potatoes belonging to the three most popular varieties grown in Florida in that year.
There was no evidence of bad faith, neglect or carelessness on the part of respondent in performing its contractual obligations. There was no evidence of any intent of respondent that the potatoes be sold for table use. It freely acknowledged the existence of the international agreement and declared its purpose to cooperate with it.
It was conceded that these potatoes were specially suited for use as seed but also that they were of high-grade edible quality. There was, however, no evidence that any substantial part of these potatoes ultimately was eaten. The most that appeared was that ten pounds of the seed potatoes were sold by a grocery in St. Augustine, Florida, to two women who appeared to be housewives buying for home use. There was also evidence that a few potatoes, probably from the shipment, were sold to customers of the same type by a Jacksonville store and by an A & P market in Atlanta, Georgia.
In sum, all that respondent did was to sell seed potatoes, labeled as seed potatoes, in seeding time to concerns which normally dealt in seed potatoes. Under these circumstances, the District Court was not clearly in error in making the findings it did or in directing the verdict for respondent on the ground that no breach of contract *305 was shown. Walling v. General Industries Co., 330 U. S. 545.
In view of the foregoing, there is no occasion for us to consider the other questions discussed by the Court of Appeals. The decision in this case does not rest upon them.
Affirmed.
APPENDIX TO OPINION OF THE COURT.
Exchange of notes between the Canadian Ambassador to the United States and the Acting Secretary of State of the United States, November 23, 1948:
"The Canadian Ambassador to the Secretary of State
"CANADIAN EMBASSY
"AMBASSADE DU CANADA
"WASHINGTON, D. C.,
"No. 538
"November 23rd, 1948.
"SIR,
"I have the honour to refer to the discussions which have taken place between the representatives of the Government of Canada and of the Government of the United States of America regarding the problems which would confront the Government of the United States in the operation of its price support and other programmes for potatoes if the imports of Canadian potatoes, during this current crop year, were to continue to be unrestricted. After careful consideration of the various representations which have been made to the Canadian Government on this subject, the Canadian Government is prepared to:
"1. Include Irish potatoes in the list of commodities for which an export permit is required under the provisions of the Export and Import Permits Act.
*306 "2. Withhold export permits for the movement of table stock potatoes to the United States proper, excluding Alaska.
"3. Issue export permits for the shipment of Canadian certified seed potatoes to the United States, but only under the following circumstances:
"(a) Export permits will be issued to Canadian exporters for shipments to specified States in the United States and such permits will only be granted within the structure of a specific schedule. The schedule is designed to direct the shipment of Canadian certified seed potatoes into those States where there is a legitimate demand for certified seed potatoes and only during a short period immediately prior to the normal seeding time. A draft of this schedule is now being jointly prepared by Canadian and United States officials.
"(b) Export permits would only be granted to Canadian exporters who could give evidence that they had firm orders from legitimate United States users of Canadian seed potatoes. Canadian exporters would also be required to have included in any contract into which they might enter with a United States seed potato importer a clause in which the importer would give an assurance that the potatoes would not be diverted or reconsigned for table stock purposes.
"(c) The Canadian Government would survey the supply of Canadian certified seed potatoes by class and consider the possibility of giving precedence to the export of Foundation and Foundation A classes of certified seed.
"(d) The names and addresses of the consignees entered on the export permit would be compiled periodically and this information would be forwarded to the United States Government.
"In instituting a system which has the effect of restricting exports of Canadian potatoes to the United States, the Canadian Government recognizes a responsibility to *307 the Canadian commercial grower in certain surplus potato areas and is prepared to guarantee a minimum return on gradable potatoes for which the grower cannot find a sales outlet. Although the details of such a programme have not been finalized, it is anticipated that the Canadian Government will announce, at approximately the same time as potatoes are placed under export control, a floor price which will be effective April 1st, 1949 for certain carlot shipping areas in the East. To implement this programme the Canadian Government would inspect the potato holdings of commercial growers in Prince Edward Island, and several counties of New Brunswick, on or after April 1st and would undertake to pay a fixed price for every hundred pounds of Canada No. 1 potatoes found in the bins. It is not anticipated that any actual payment would be made at that time and it would be understood that if any of the potatoes examined were subsequently sold or used for seed purposes the owner would forfeit any claim for assistance on such potatoes. In other words, the Canadian Government would make no payment on potatoes which move into export trade, or which are used for seed purposes.
"It should be noted that the Canadian proposals to institute export permit control on Canadian potatoes and to inaugurate a price support programme are contingent upon assurances from the United States Government that:
"a) The United States Government will not hereafter impose any quantitative limitations or fees on Canadian potatoes of the 1948 crop exported to the United States under the system of regulating the movement of potatoes from Canada to the United States outlined herein.
"b) The Canadian Government proposal, as outlined herein, to guarantee a floor price to certain commercial growers in the Maritime Provinces would not be interpreted by United States authorities as either a direct or *308 indirect subsidy and that in consequence there would be no grounds for the imposition of countervailing duties under Section 303 of the United States Tariff Act of 1930.[1]]
"If the United States Government in its replying note accepts the Canadian proposals and gives to the Canadian Government the assurances required, as outlined above, this note and the reply thereto will constitute an agreement on this subject.
"Accept, Sir, the renewed assurances of my highest consideration.
"H H WRONG
"The Honourable GEORGE C. MARSHALL,
"Secretary of State of the United States,
"Washington, D. C.
"The Acting Secretary of State to the Canadian
Ambassador
"NOVEMBER 23, 1948
"EXCELLENCY:
"The Government of the United States appreciates the assurance of the Government of Canada contained in your note no. 538 of November 23, 1948, that the Government of Canada is prepared, contingent upon the receipt of certain assurances from the Government of the United States, to establish the controls outlined therein over the exportation of potatoes from Canada to the United States.
"In view of the adverse effect which unrestricted imports of Canadian potatoes would have on the potato programs of the United States and the fact that it is anticipated that the Canadian proposal will substantially reduce the quantity of potatoes which would otherwise be imported into the United States, and in the interest of *309 international trade between the United States and Canada and other considerations, the United States Government assures the Canadian Government that it will not hereafter impose any quantitative limitations or fees on Canadian potatoes of the 1948 crop imported into the United States under the system of regulating the movement of potatoes to the United States outlined in the Canadian proposal.
"The Government of the United States also wishes to inform the Canadian Government with respect to that Government's proposal to guarantee a floor price to certain commercial growers in the Maritime Provinces, that in the opinion of the Treasury Department, the operation of such a proposal as outlined by the Canadian Government would not be considered as a payment or bestowal, directly or indirectly, or any bounty or grant upon the manufacture, production, or export of the potatoes concerned and no countervailing duty would, therefore, be levied, under the provisions of Section 303, Tariff Act of 1930, as a result of such operation of the proposal on potatoes imported from Canada.
"The United States Government agrees that your note under reference, together with this reply, will constitute an agreement on this subject.
"Accept, Excellency, the renewed assurances of my highest consideration.
"ROBERT A. LOVETT
"Acting Secretary of State of the
United States of America
"His Excellency
"HUME WRONG,
"Ambassador of Canada."
Treaties and Other International Acts Series 1896, Department of State, Publication 3474.
NOTES
[1] January 10, 1949, the Acting Chief of the Potato Division, Fruit and Vegetable Branch of the United States Department of Agriculture, wired respondent:
"Have been informed ACCO [Atlantic Commission Company] representative, Jacksonville, Florida, claiming you have special permission from Department to sell Canadian seed for edible use, if no demand for seed. Please advise basis for claim. Account such disposition is contrary to the intent of U. S. Canadian agreement and to Canadian requirement regarding diversion or reconsignment."
January 11, 1949, respondent wired in reply: "Have not made such statement. Only put seed [potatoes] Jacksonville for seed purposes" and, later, on the same day:
"I realize fully the agreement with Canada, its intent and want to and expect to cooperate with the program. I am only bringing in seed for seed purposes. Canadian dealers are now quoting seed same territory I am selling. Have had quotations as low as 365 hundredweight delivered Norfolk, past week."
[2] "Less 10,000 Sax Canada No. 1 Seed Potatoes @ $3.65 f. o. b." These 10,000 sacks were immediately resold by the Atlantic Commission Company to respondent. Of them, 8,730 were invoiced by respondent on the same day as "Canada No. 1 Seed Potatoes" in seven lots to four separate dealers in Florida and Georgia, at prices between $3.75 and $4 per cwt. There was no evidence as to the disposition of the remaining 1,270 sacks.
[3] "We have little difficulty in seeing in the evidence breach of contract on the part of defendant and damage resulting to the United States from the breach." 204 F. 2d at 658.
[4] See note 2, supra.
[1] "46 Stat. 687."
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
VINCENT SANSONE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-5116
FRANK CRUM/FRANK
WINSTON CRUM
INSURANCE, INC.,
Appellees.
_____________________________/
Opinion filed November 2, 2016.
An appeal from an order of the Judge of Compensation Claims.
Mary A. D’Ambrosio, Judge.
Date of Accident: January 14, 2015.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
William H. Rogner and Paul L. Luger, Winter Park, for Appellees.
WINSOR, J.
This appeal is about attorney’s fees. Under section 440.34(3)(b), Florida
Statutes (2014), successful claimants can recover attorney’s fees from a carrier or
employer in certain circumstances. But the statute includes a grace period, providing
that “attorney’s fees shall not attach” until thirty days after the carrier or employer
receives the petition for benefits. The question we address is what happens if the
carrier or employer accepts responsibility for medical expenses within thirty days
but does not actually pay the medical bills until after thirty days. We hold that so
long as the carrier or employer accepts responsibility for medical expenses within
the thirty-day grace period, it is not liable under section 440.34(3)(b) for fees
associated with those benefits. We therefore affirm the order denying fees.
Facts and Procedural History
Vincent Sansone suffered a workplace injury when he fell from a scaffold.
After the employer/carrier initially denied compensability, Sansone retained counsel
and filed a petition seeking disability payments, payment of an outstanding hospital
bill, and attorney’s fees. Within thirty days of receiving the petition, the
employer/carrier rescinded its denial, paid the disability benefits, and accepted
responsibility for paying the hospital bill. A few weeks later, the employer paid the
hospital bill.
Sansone’s attorney then filed a separate petition for attorney’s fees, asserting
that “[a]s a result of our efforts, we obtained for [Sansone] the payment of the
hospital bill.” The employer/carrier objected, arguing that the statutory grace period
precluded fees because the employer/carrier accepted responsibility within thirty
days of receiving the petition for benefits. The judge of compensation claims denied
2
the fee petition, and Sansone appeals. Because this appeal turns on pure issues of
law, our review is de novo. See Airey v. Wal-Mart/Sedgwick, 24 So. 3d 1264, 1265
(Fla. 1st DCA 2009).
Analysis
Attorney’s fees under section 440.34(3)(b) require the “successful prosecution
of the petition,” but fees cannot attach until thirty days after the employer receives
the petition. § 440.34, Fla. Stat.; see also Neville v. JC Penney Corp., 130 So. 3d
235, 235 (Fla. 1st DCA 2013); Franco v. SCI at Palmer Club at Prestancia, 989 So.
2d 709, 710 (Fla. 1st DCA 2008). Therefore, an award under section 440.34(3)(b)
requires some part of the “successful prosecution” to occur after thirty days. In other
words, if the petition fully succeeds before the thirty days run, fees do not attach. Cf.
Franco, 989 So. 2d at 710 (“Because more than 30 days elapsed from the date the
e/sa received the petition and claimant successfully achieved acceptance and
payment of the claim, all of the statutory requirements of section 440.34(3), Florida
Statutes (2006), have been met.”). The question here, then, is whether Sansone’s
petition finally succeeded when the employer accepted responsibility for the hospital
bill (which was before the thirty days ran) or when the employer actually paid the
hospital bill (which was after).
3
Sansone relies on this court’s decisions holding that “successful prosecution”
under section 440.34(3) is not achieved until there has been acceptance and payment.
See, e.g., Franco, 989 So. 2d at 710; McDonald’s Rest. #7160 v. Montes, 736 So. 2d
768, 769 (Fla. 1st DCA 1999). And to be sure, we have said that “timeliness of
payment of benefits is determined not by the date on which the E/C notifies a
claimant’s attorney that the claim is accepted and benefits will be paid, but by ‘the
date checks of payment are placed in the mail.’” Williams v. State Dep’t of Corr./Div.
of Risk Mgmt., 97 So. 3d 923, 926 (Fla. 1st DCA 2012) (quoting Amerimark, Inc. v.
Hutchinson, 882 So. 2d 1114, 1115 (Fla. 1st DCA 2004)). But those cases addressed
claims for benefits payable directly to claimants. The payment at issue here was to
the hospital—not to Sansone himself. 1
The actual benefit Sansone received was not the employer/carrier’s payment
to the hospital; it was his being relieved of any obligation to pay the hospital himself.
Sansone became “insulated from financial responsibility” for the hospital bill after
the employer/carrier accepted responsibility. See Bergstein v. Palm Beach Cty. Sch.
Bd., 97 So. 3d 878, 879 (Fla. 1st DCA 2012); see also § 440.13(3)(g), (13)(a), Fla.
Stat. (2014). At that point, when or whether the employer/carrier actually paid the
1
Sansone also sought indemnity benefits, which the employer/carrier actually
paid before the thirty days ran. Those benefits are not at issue here.
4
bill became immaterial to Sansone; it was then only a matter between the hospital
and the employer/carrier.2
Conclusion
When it comes to medical benefits, a claimant’s successful prosecution ends
when the carrier or employer accepts responsibility, regardless of when the carrier
or employer actually pays the medical providers. In this case, that happened within
thirty days after the employer/carrier received the petition for benefits, so Sansone’s
attorney’s fee petition was properly denied.
AFFIRMED.
B.L. THOMAS and WETHERELL, JJ., CONCUR.
2
Although not necessary for resolution of this appeal, we note Sansone’s
position—that the date of payment controls—would mean in some instances fee
entitlement could turn on medical providers’ billing practices. In this case, the
employer/carrier had the bill in time to pay it within the thirty days. But in another
case, a carrier or employer might not even receive the bill until after the thirty days
has run.
5
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00316-CV
In re Don Bonifay, Individually and d/b/a Bonifay & Associates
ORIGINAL PROCEEDING FROM BLANCO COUNTY
ORDER
PER CURIAM
On August 4, 2016, relator Don Bonifay, individually and d/b/a Bonifay &
Associates, filed an emergency motion for a temporary stay in connection with a previously filed
petition for writ of mandamus. See Tex. R. App. P. 52.1, 52.10. Bonifay’s motion to stay did not
inform the Court that the real party in interest Blacktopper Technology, Inc. had scheduled a
deposition for August 11, 2016. In the absence of any information stating the “emergency” nature
of the relief requested, the Court requested a response from Blacktopper by noon on August 8, 2016.
See Tex. R. App. P. 52.10(b) (allowing appellate court to grant any just temporary relief without
notice, on motion of any party or on its own initiative). On August 5, 2016, Blacktopper moved for
an extension of time to respond to Bonifay’s motion to stay. Blacktopper’s motion for extension
of time also failed to inform the Court that Blacktopper had scheduled a deposition for
August 11, 2016. On August 8, 2016, Bonifay filed a response to Blacktopper’s motion for
extension of time and informed the Court for the first time of the August 11 deposition.
We grant the motion for temporary relief and stay all proceedings in the trial court,
including all discovery and the deposition scheduled for August 11, 2016, pending further order of
this Court. Blacktopper may still file its response to Bonifay’s motion to stay on August 16, 2016,
at which time the Court will consider the response. Both parties are advised of the importance of
informing the Court of any potentially relevant dates when seeking relief in the future.
It is so ordered August 9, 2016.
Before Chief Justice Rose, Justices Goodwin and Bourland
2
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
OMAR N. BEYAH, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-109 (ESH)
)
GENE L. DODARO, )
Acting Comptroller General, )
U.S. Government Accountability Office, )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
Plaintiff Omar N. Beyah is an African-American male who was previously employed by
the United States General Accounting Office (“GAO” or “the agency”). He claims that his
employer discriminated against him on the basis of his race and gender and retaliated against him
for opposing that discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”). Having considered defendant’s motion for summary
judgment, the record herein, and for the reasons set forth below, the Court will grant the motion.
BACKGROUND
Since approximately 1988, plaintiff worked for the U.S. General Services Administration
as an architect and a program manager. (See Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Opp’n”),
Decl. of Omar N. Beyah (“Beyah Decl.”) ¶ 2.) In April 2003, while attending a Senior Executive
Fellows program at Harvard University, plaintiff met Mark Goldstein, a director in GAO’s
Physical Infrastructure (“PI”) team. (See Opp’n, Statement of Genuine Issues and Affirmative
Statement of Material Facts (“Pl.’s SMF”) at 1-2 ¶ 3.) Goldstein actively recruited plaintiff to
apply for a position with GAO, and in June, Goldstein met with plaintiff to discuss an
1
employment opportunity as a GAO analyst working on PI issues. (See id. at 2 ¶¶ 4-5.) Goldstein
informed plaintiff about the GAO website’s description of the position, gave him the website
address for the online application, and encouraged him to apply. (Id. at 2 ¶ 6; Opp’n,
Attachment 29 (Beyah Dep., Apr. 11, 2008) (“Beyah Dep.”1) at 49:11-14). Thereafter, plaintiff
applied for the position, which was at the “Band II” level. (Pl.’s SMF at 2 ¶ 7.) GAO classifies
employees in one of three “bands” (Bands I, II, and III) instead of using the General Schedule
(“GS”) pay system; during the relevant period, the pay range for employees at the Band II level
was approximately equivalent to the salary range covered by the GS-13 and GS-14 grades.
(Def.’s Mot. for Summ. J. (“Mot.”), Ex. 3 (Decl. of Margaret Braley) (“Braley Decl.”) ¶ 2.)
Around July 2003, plaintiff interviewed with Goldstein and Terrell Dorn, then an
assistant director in PI, among other GAO officials. (Pl.’s SMF at 2 ¶ 8.) After interviewing
plaintiff and other applicants, Goldstein and Dorn decided that plaintiff was the best candidate
for the Band II “senior analyst” position. (Def.’s SMF ¶ 9.)2 Consequently, Goldstein and Dorn
recommended to Mike Gryszkowiec, PI’s managing director, that plaintiff be hired, and plaintiff
thereafter accepted an offer to join GAO as a Band II Senior Analyst. (Pl.’s SMF at 2-3 ¶¶ 9-
10.) Consistent with GAO regulations at the time, plaintiff was informed on July 23 that he
1
Defendant also submitted excerpts from this deposition as Exhibit 5 to his motion.
2
Plaintiff denies that the position was a Band II position (see Pl.’s SMF at 2 ¶ 9), but this
denial does not comply with Local Civil Rule 7 because it is not supported with a citation to
record evidence. See Local Civ. R. 7(h) (“An opposition to [a motion for summary judgment]
shall be accompanied by a separate concise statement of genuine issues setting forth all material
facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall
include references to the parts of the record relied on to support the statement.” (emphasis
added)). As such, plaintiff has not raised any genuine issue with respect to this factual assertion
by defendant. See Adesalu v. Copps, 606 F. Supp. 2d 97, 103 & n.4 (D.D.C. 2009) (Friedman,
J.) (declining, in Title VII case, to recognize plaintiff’s denial of defendant’s asserted material
fact where he failed to comply with Rule 7(h)(1)’s requirement that denials must be supported by
citation to record evidence).
2
would be serving a one-year probationary period. (See id. at 3 ¶¶ 11-12.)
Plaintiff’s effective start date at GAO was September 21, 2003. (Opp’n, Ex. 1
(Notification of Personnel Action) at 1.) Dorn served both as plaintiff’s supervisor and his
Designated Performance Manager (“DPM”), and thus was responsible for monitoring and
assessing plaintiff’s performance. (Pl.’s SMF at 4 ¶ 18.) Dorn reported to Goldstein, who in
turn reported to Gryszkowiec. (Id. at 4 ¶ 19.) After plaintiff had completed orientation and
initial training, Dorn and Goldstein assigned Maria Edelstein, a Band II Senior Analyst on the PI
team who had been with GAO for approximately 15 years, to be plaintiff’s day-to-day
supervisor. (See Def.’s SMF ¶ 17; see also Pl.’s SMF at 3-4 ¶ 17.)3 Plaintiff was told to report
directly to Edelstein, with whom he worked on “most of” his projects. (Beyah Dep. 115:11-13,
115:23-116:16.)
Plaintiff’s first assignment was an internal PI engagement for which he was tasked with
developing a GAO guidance document regarding the design process (“the Guide”). (See Pl.’s
SMF at 4-5 ¶ 22; Beyah Dep. at 105; Mot., Ex. 18 (Pl.’s Resps. To Def.’s 1st Interrogs.) at 41.)
On this engagement, Edelstein was the analyst-in-charge and Dorn was the assistant director.
(Mot., Ex. 18 at 41.) From October 2003 to February 2004, plaintiff prepared multiple drafts of
sections of the Guide. (Pl.’s SMF at 5 ¶ 24.) Although the Guide initially focused on the design
3
Although plaintiff denies that Edelstein was his supervisor and cites to his 2009
declaration as support (see Pl.’s SMF at 3-4 ¶ 17), this denial is expressly contradicted by his
2008 deposition testimony, which was cited in defendant’s statement of facts. (See Beyah Dep.
at 115:4-6 (Q: “[W]ould you say that Ms. Edelstein had been your supervisor since day one,
since when you started?” A: “Yes.”).) “Plaintiff cannot contradict clear answers to unambiguous
questions given at deposition for the purpose of creating disputed factual issues and thereby
avoid summary judgment.” See Hendricks v. Paulson, 520 F. Supp. 2d 65, 79 n.17 (D.D.C.
2007), aff’d sub nom. Hendricks v. Geithner, 568 F.3d 1008 (D.C. Cir. 2009); see also Reetz v.
Jackson, 176 F.R.D. 412, 414 (D.D.C. 1997) (“‘[A] party’s affidavit which contradicts [her] own
prior deposition testimony should be disregarded on a motion for summary judgment.’” (quoting
Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987)).
3
phase, by January 2004 the focus had shifted to conceptual planning. (Beyah Dep. at 105:3-6.)
Plaintiff received negative comments on his sentence structure and use of industry terms and
references, and he was specifically criticized for not connecting the design phase to the
construction process. (Pl.’s SMF at 5 ¶ 24.) After the Guide was finalized, plaintiff was also
tasked with “indexing” its contents, a process by which GAO verifies and documents that all
information contained in a GAO product is supported by source material. (Id. at 5 ¶ 25.)
Following his first indexing attempt, plaintiff received comments from the index reviewer that
the index was not consistent with GAO’s indexing rules. (Mot., Ex. 21 (Pl.’s Resps. To Def.’s
2nd Interrogs.) at 4.) Edelstein subsequently criticized plaintiff’s work and required him to re-
index the entire document. (Id. at 4-5.)
In February 2004, plaintiff was assigned to work on an engagement involving PI issues at
the John F. Kennedy Center for the Performing Arts (“Kennedy Center”). (Pl.’s SMF at 5-6 ¶
27.) Plaintiff’s principal role was to develop an estimate of operations and management
(“O&M”) costs and draft a section for the report on this issue. (Id. at 6 ¶ 28.) Edelstein was the
project’s analyst-in-charge. (Beyah Dep. at 117:9-15.) In March, Susan Fleming joined the
project as the assistant director; she served as plaintiff’s second-level supervisor, setting
objectives and deadlines, and reported to the project’s director, who was Goldstein until Peter
Guerrero took over in April. (See Beyah Dep. at 143-45; Mot., Ex. 19 (Fleming EEO Aff., May
16, 2005) (“Fleming Aff.”) ¶¶ 2-3, 6.) That same month, plaintiff was involved in a dispute with
a GAO librarian. (See Def.’s SMF ¶ 47.)4 At another point during plaintiff’s time with GAO, a
U.S. State Department official called and complained to John Brummet, an assistant director on
4
Plaintiff appears to deny the fact of an argument (see Pl.’s SMF at 9 ¶ 47), but his
declaration confirms that he had an interaction with the librarian where she supposedly was
“rude,” “hostile,” and “disrespectful,” and which involved a “miscommunication” for which she
faulted plaintiff. (Beyah Decl. ¶ 50.)
4
GAO’s International Affairs and Trade (“IAT”) team, about plaintiff’s confrontational conduct
while attending a meeting with IAT and State Department officials. (Id. at 9 ¶ 46; see also
Opp’n, Ex. 8 (Brummet EEO Aff., May 10, 2005) (“Brummet Aff.”) ¶ 3.)
On April 7, 2004, Fleming and Edelstein met with plaintiff to discuss the expectations for
his performance on the Kennedy Center engagement. (See Pl.’s SMF at 11 ¶ 56.) During the
meeting, when Fleming learned that plaintiff was working on seven projects, she “cautioned
[him] about working on too many jobs,” and they discussed that he had to “be careful to manage
them to meet job expectations for the Kennedy Center.” (Mot., Ex. 53 (Apr. 7, 2004 Beyah
mem.) at 1-2.) Following the meeting, plaintiff gave Fleming a memorandum containing his
minutes of that meeting. (See id.; Pl.’s SMF at 11 ¶ 56.) At plaintiff’s request, he and Fleming
met again that same day to discuss why expectations were being set for his work. (Pl.’s SMF at
11 ¶ 56.) On April 16, plaintiff emailed Fleming a memorandum of minutes from that second
April 7 meeting. (Id. at 12 ¶ 57; see Mot., Ex. 54 (Apr. 16, 2004 Beyah mem. & cover letter).)
The email explained that plaintiff intended to put in writing “matters that could impact personnel
actions with or against” him, specifically disagreements involving “observation[s] of behavior”
that would “impact[] [his] decision making” or his “ability to do work in a supporting
environment.” (Mot., Ex. 54 at 1.)
That same month, plaintiff met with Kennedy Center officials on at least two occasions.
(See Mot., Ex. 17 (Edelstein EEO Aff., May 12, 2005) (“Edelstein Aff.”) ¶ 5.) During one
meeting, plaintiff asked an official whether the Center might be “wasting money in those
instances when it does not know what it is spending money on.” (Beyah Decl. ¶ 55.) Fleming
concluded that the officials were offended because plaintiff inappropriately “informed them that
they were not following industry standards and best practices and most likely wasting money.”
5
(Fleming Aff. ¶ 6.) Edelstein similarly felt that plaintiff made inappropriate recommendations
and requests that upset the officials. (See Edelstein Aff. ¶ 5.) Fleming and Edelstein told Dorn
and Goldstein about these concerns and what they perceived to be plaintiff’s defensiveness when
receiving feedback and his inability “to complete basic paperwork without supervision.” (Mot.,
Ex. 27 (“Dorn DPM Notes”) at 1; see also Fleming Aff. ¶ 6; Edelstein Aff. ¶ 5.)
On June 9, 2004, Edelstein circulated to the Kennedy Center PI team a timetable for
completing their work on the report, including a June 18, 2004 deadline for first drafts of each
section. (Pl.’s SMF at 6 ¶ 31.) On Friday afternoon of June 18, plaintiff emailed Edelstein and
Fleming what he described to be “[a] working draft of sec. 3,” which was a three-page outline.
(See id. at 6 ¶¶ 32-33; Mot., Ex. 30 (June 18, 2004 draft) at 2-4.) On June 22, plaintiff submitted
to Edelstein his first revised draft section, which did not contain any O&M cost estimates for the
proposed Kennedy Center buildings. (Pl.’s SMF at 7 ¶ 34; see Mot., Ex. 33 (June 22, 2004 draft)
at 14 (estimating O&M costs “to be approximately $X million in 2012”).) When reviewing this
first revised draft, Edelstein commented that plaintiff needed to better explain and “set up” his
substantive discussions. (Pl.’s SMF at 7 ¶ 35.) In a June 30 meeting with Dorn and Edelstein,
plaintiff gave an oral presentation of his section of the report, after which Dorn concluded that
plaintiff’s work was “unacceptable and could not be supported” because he lacked “backup for
his work,” used “flawed” methodology, and could not “explain what is behind the numbers he
[was] using.” (Dorn DPM Notes at 1; see also Pl.’s SMF at 7-8 ¶¶ 36-38.)
On July 1, 2004, plaintiff gave Edelstein another draft of his section of the report, which
he titled his “second revised draft.” (Pl.’s SMF at 8 ¶ 39.) This draft did include an O&M cost
estimate. (See Mot., Ex. 35 (July 1, 2004 draft) at 2 (estimating $4-5 million in O&M costs).)
Edelstein provided substantive comments on this draft. (Pl.’s SMF at 8 ¶ 40.) Dorn also
6
requested that plaintiff adjust his O&M calculations to reflect the higher costs associated with the
Washington, D.C. area. (Id. at 8 ¶ 41; see Beyah Decl. ¶¶ 37-39; Opp’n at 13-14.) On July 5,
plaintiff submitted another draft that contained the locality-adjusted O&M numbers. (Pl.’s SMF
at 8 ¶ 41; see Mot., Ex. 37 (July 5, 2004 draft) at 1 (estimating $6-8 million in O&M costs).) In
his cover email for this third revised draft, plaintiff stated: “I am optimistic that out of the many
tries to nail down the potential costs in current dollars I think we might have something worth
your review and consideration.” (Pl.’s SMF at 8 ¶ 41.) Dorn and Fleming then made substantive
comments on the July 5 draft. (Id. at 8 ¶ 42.) Thereafter, Fleming asked Ron Stouffer, an
experienced PI employee who was not part of the Kennedy Center engagement team, to meet
with plaintiff to try to assist him in writing his portion of the report. (See id. at 8-9 ¶ 43; see also
Beyah Decl. ¶ 45.) On July 7, Dorn met again with plaintiff and discussed plaintiff’s work on
the Kennedy Center report. (See Pl.’s SMF at 9 ¶ 44.)
On July 15, 2004, Gryszkowiec conducted a meeting with Dorn, Fleming, Edelstein,
Guerrero, and Goldstein, to discuss what they perceived to be plaintiff’s performance and
interpersonal problems. (Def.’s SMF ¶ 49; see also Mot., Ex. 44 (“Gryszkowiec Meeting
Notes”) at 2.)5 As PI’s managing director, Gryszkowiec was ultimately responsible for deciding
whether to recommend the termination of PI employees to GAO’s Human Capital Office. (Pl.’s
SMF at 9-10 ¶ 48.) GAO regulations at the time stated that a probationary employee should be
separated from GAO “whenever the employee’s work performance or conduct fails to
demonstrate the fitness or qualifications for continued GAO employment.” (Id. at 11 ¶ 54.) At
5
Plaintiff denies that his interpersonal problems were discussed at the meeting (see Pl.’s
SMF at 10 ¶ 49), but the denial is not supported by his citation to the portion of Gryszkowiec’s
deposition wherein Gryszkowiec states he does not recall whether plaintiff’s interpersonal issues
were specifically raised. (See Mot., Ex. 43 (Gryszkowiec Dep., Sept. 30, 2008) (“Gryszkowiec
Dep.”) at 43:11-44:23.) See supra note 2; Local Civ. R. 7(h). Further, Gryszkowiec’s notes
from that meeting explicitly reference interpersonal issues.
7
the July 15 meeting, Goldstein, Dorn, Fleming, and Edelstein expressed concerns about
plaintiff’s performance, with Goldstein and Dorn recommending that plaintiff’s employment be
terminated. (See id. at 10 ¶¶ 50-51; Gryszkowiec Dep. at 35-36.) Based on the information
received during the meeting and the applicable GAO regulations, Gryszkowiec decided that
plaintiff should be terminated for poor performance and problematic interpersonal skills. (See
Pl.’s SMF at 10 ¶ 52.)
As a result of Gryszkowiec’s decision, on July 15, 2004, Goldstein informed plaintiff that
his employment would not be extended beyond his probationary period. (Pl.’s SMF at 10-11 ¶
53.) The next day, plaintiff contacted an Equal Employment Opportunity (“EEO”) counselor in
GAO’s Office of Opportunity and Inclusiveness. (See id. at 12 ¶ 59.) This was his first contact
with an EEO representative at GAO. (Id.) In early August, plaintiff filed a charge with GAO’s
Personnel Appeals Board (“PAB”), challenging the actions leading up to and including his
termination. (See Opp’n, Ex. 25 (“PAB Documents”) at 1.) On August 20, Gryszkowiec sent a
memorandum to GAO’s Chief Human Capital Officer, Jesse Hoskins, recommending the
termination of plaintiff’s appointment during his probationary period for unsatisfactory
performance and interactions, stating that plaintiff had “continued difficulties” in the GAO
performance competencies of “Achieving Results,” “Presenting Information Orally,” “Presenting
Information in Writing,” “Representing GAO,” and “Collaborating with Others.” (Pl.’s SMF at
11 ¶ 55.)6 On August 23, Hoskins issued a letter to plaintiff notifying him that he would be
terminated effective September 10, 2004, for unsatisfactory performance. (See Opp’n, Ex. 7
(“Hoskins Letter”).) On September 9, the PAB granted two ex parte requests by its General
6
The performance competencies describe the level of performance necessary to “Meet
Expectations” in each competency at each band level, which is the minimum level of acceptable
performance in GAO’s Competency-Based Performance System. (Pl.’s SMF at 1 ¶ 2.)
8
Counsel to stay plaintiff’s termination date, so that the General Counsel could investigate
whether plaintiff’s terminations arose from “one or more prohibited personnel practices.” (PAB
Order at 13 n.1.) Plaintiff’s termination was stayed until the end of business on October 18,
2004. (Id. at 17.) He subsequently exhausted his administrative remedies and timely initiated
this action on January 17, 2007.
ANALYSIS
I. LEGAL STANDARDS
A. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment
shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine issue of material fact, and that the moving party is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). “A dispute about a material fact is not ‘genuine’ unless ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Haynes v. Williams, 392 F.3d
478, 481 (D.C. Cir. 2004) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled
to summary judgment against “a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir.
2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255; see also Wash. Post. Co. v. U.S. Dep’t of Health and Human Servs., 865 F.2d 320, 325
(D.C. Cir. 1989). The non-moving party’s opposition, however, must consist of more than mere
9
unsupported allegations or denials and must be supported by affidavits or other competent
evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ.
P. 56(e); Celotex, 477 U.S. at 324. If the non-movant fails to point to “affirmative evidence”
showing a genuine issue for trial, Anderson, 477 U.S. at 257, or “[i]f the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50
(internal citations omitted). “While summary judgment must be approached with special caution
in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by
affidavits or other competent evidence showing that there is a genuine issue for trial.” Calhoun
v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff’d No. 99-5126,
1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 1999) (internal citation omitted).
B. Title VII
Under Title VII of the Civil Rights Act of 1964, it is an “unlawful employment practice”
for employers “to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). It is also unlawful to retaliate against an
employee because he “has opposed any practice made an unlawful employment practice” by
Title VII or because she “has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing” under Title VII. Id. § 2000e-3(a). Traditionally, courts
have examined Title VII claims for discrimination under the three-step burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However,
where an employer has asserted legitimate, non-discriminatory reasons for the actions being
challenged by the plaintiff,
the district court must resolve one central question: Has the employee produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-
10
discriminatory reason was not the actual reason and that the employer
intentionally discriminated against the employee on the basis of race, color,
religion, sex, or national origin?
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). “[T]hese principles
apply equally to retaliation claims . . . .” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009).
A plaintiff has the burden of persuasion to show that a defendant’s proffered non-
discriminatory reason for the challenged action is a pretext. Morgan v. Fed. Home Loan
Mortgage Corp., 328 F.3d 647, 654 (D.C. Cir. 2003). A plaintiff can carry this burden by
showing that a non-discriminatory reason offered by a defendant is false, Montgomery v. Chao,
546 F.3d 703, 707 (D.C. Cir. 2008), or otherwise “presenting enough evidence to allow a
reasonable trier of fact to conclude that the employer’s proffered explanation is unworthy of
credence.” Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir. 2008) (internal quotation marks
omitted). A plaintiff may also “attempt[] to produce evidence suggesting that the employer
treated other employees . . . more favorably in the same factual circumstances” than the
employer treated the plaintiff. Brady, 520 F.3d at 495. Where “the employer’s stated belief
about the underlying facts is reasonable in light of the evidence, however, there ordinarily is no
basis for permitting a jury to conclude that the employer is lying about the underlying facts,” and
summary judgment is appropriate. Id.; see also Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d
23, 27-28 (D.C. Cir. 1997) (“[I]f [a plaintiff] is unable to adduce evidence that could allow a
reasonable trier of fact to conclude that [the defendant’s] proffered reason was a pretext for
discrimination, summary judgment must be entered against [the plaintiff].”)
II. DISCRIMINATION
Title VII “establishes two elements for an employment discrimination case: (i) the
plaintiff suffered an adverse employment action (ii) because of the employee’s race, color,
religion, sex, or national origin.” Brady, 520 F.3d at 493. “A plaintiff must prove both elements
11
to sustain a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.
2008).
Plaintiff alleges that defendant discriminated against him on the basis of his race by not
hiring him at the Band III level,7 and that defendant terminated him from his Band II senior
analyst position because of his race and/or gender. Defendant contends that there were
legitimate, non-discriminatory reasons for not selecting plaintiff for a Band III position and for
later terminating him from his Band II position. (Mem. of P. &. A. in Supp. of Def.’s Mot. for
Summ. J. (“Mem.”) at 2.) The Court finds that plaintiff has failed to “produce sufficient
evidence that his employer’s asserted legitimate non-discriminatory reason[s] . . . [were] not the
actual reason[s] and that [plaintiff] suffered discrimination on an impermissible ground.”
Baloch, 55 F.3d at 1197. Accordingly, summary judgment shall be granted with respect to
plaintiff’s discrimination claims.
A. Count IV: Non-Selection
Plaintiff alleges that defendant discriminated against him on the basis of his race by
hiring him as a Band II analyst, because this position was at a band or salary “lower than those
levels at which [the agency] appointed similarly situated, Caucasian members of the Physical
Infrastructure Team who held positions comparable to plaintiff’s[.]” (Compl. ¶ 67.) As
evidence of discrimination, he points to the fact that a Caucasian applicant, Bradley James,
joined the agency at the Band III level in a temporary three-year Comptroller General
appointment dedicated to construction issues related to the U.S. Capitol Visitor’s Center. (Opp’n
at 5; see Opp’n, Ex. 11 (Decl. of Bradley James) (“James Decl.”) ¶¶ 1-2.) Even if the supposed
failure to consider plaintiff for the position on the Visitor’s Center project constituted an adverse
7
The pay range for the Band III level was approximately equivalent to the salary range
covered by the GS-15 grade. (Braley Decl. ¶ 2.)
12
action,8 defendant has proffered the legitimate, non-discriminatory reason that James was the
more qualified applicant, and based on the undisputed evidence, the Court concludes that
plaintiff has failed to create a reasonable inference that this was not the true reason for his
supposed non-selection.
“[A]n ‘employer has discretion to choose among equally qualified candidates, provided
the decision is not based upon unlawful criteria.’” Porter v. Fulgham, 601 F. Supp. 2d 205,
219 (D.D.C. 2009) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981)).
Here, the undisputed facts show that the plaintiff did not even meet the standard of being
“equally qualified.” Plaintiff had approximately 14 years of experience as an architect and held
no professional license, while James was a licensed professional engineer with over 29 years of
experience as a civil engineer for the Army Corps of Engineers. (Pl.’s SMF at 3 ¶¶ 14-15.)
Thus, even assuming that plaintiff was qualified to fill the Visitor’s Center position,9 the fact that
James was more experienced than plaintiff undercuts any possible inference of discrimination.
8
The Court need not resolve defendant’s alternative contention that plaintiff cannot
establish the necessary element of an adverse action because he did not apply for a Band III
position. (Mem. at 34.) However, plaintiff has admitted that he “never applied” for James’s
position. (Pl.’s SMF at 3 ¶ 13.) Further, Dorn had no authority to hire anyone for a permanent
Band III position (Mot., Ex. 15 (Decl. of Terrell Dorn) (“Dorn Decl.”) ¶ 10), and there is no
indication that plaintiff – who had been recruited for permanent employment – expressed an
interest in a temporary position during his recruitment or subsequent interviews. (See Beyah
Dep. at 64; Beyah Decl. ¶¶ 9-11.)
9
Plaintiff has not established that he was qualified to fill the position on the Visitor’s
Center project. He argues that James “engaged in the type of work that [plaintiff] was qualified
to perform” (Opp’n at 8), but his sole support for this claim is his observation that James did “[a]
lot of the kinds of work that [plaintiff] did for construction projects at GSA . . . .” (Beyah Dep.
at 76:19-77:11.) Because plaintiff denied ever seeing the description of James’s position or ever
working on the project with James (see id. at 76:16-18, 77:20-22), there is no basis to conclude
that James’s responsibilities were limited to the activities that plaintiff observed. Indeed,
Goldstein explained that James’s position was “not at all similar” to plaintiff’s position because
“[t]hey performed differen[t] functions and were hired under a different hiring authority.” (Mot.,
Ex. 12 (Goldstein EEO Aff., May 24, 2005) (“Goldstein Aff.”) ¶ 13.)
13
See Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (“In order to justify an inference of
discrimination, the qualifications gap must be great enough to be inherently indicative of
discrimination.”); accord Porter, 601 F. Supp. 2d at 219.10 The Court will therefore grant
summary judgment as to Count IV.
B. Counts I and II: Termination
Plaintiff also alleges that the agency terminated his employment because of his race or
gender. (Compl. ¶¶ 39-54.) In response, defendant explains that plaintiff was terminated
because his performance as a probationary employee was unsatisfactory, based on his
supervisors’ “reasonabl[e] and sincere[] belie[f]” that he lacked the performance skills and
interpersonal abilities necessary for the position. (Mem. at 36.) Given the evidence, the Court
agrees with defendant’s argument that plaintiff has not “produced evidence sufficient for a
reasonable jury to find that [his] employer’s stated reason [for terminating him] was not the
actual reason and that the employer intentionally discriminated against [him] based on his race”
or gender. Brady, 520 F.3d at 495.
With respect to plaintiff’s performance skills, defendant asserts that plaintiff’s
supervisors perceived “that he often completed his work in an untimely fashion,” “that he
struggled to complete his work in a manner consistent with GAO guidelines,” “that his written
work was unorganized and failed to cite adequate support or background,” and “that his oral
presentation skills were deficient on at least one occasion . . . .” (Mem. at 36.) The facts
underlying these perceptions are supported by the record. For example, plaintiff admits that his
10
Any inference that Goldstein and Dorn’s decision to hire plaintiff at the Band II level
instead of the Band III level was motivated by racial animus is further undermined by the fact
that Goldstein personally recruited plaintiff to join the agency. Cf. Waterhouse v. District of
Columbia, 124 F. Supp. 2d 1, 13 (D.D.C. 2000) (noting that allegation of discriminatory
termination was “undercut[]” by the fact that “the same individuals hired and terminated
plaintiff”), aff’d, 298 F.3d 989, 996 (D.C. Cir. 2002).
14
work on the conceptual planning guide was criticized for his sentence structure, use of industry
terminology, failure to link important concepts, and failure to comply with GAO indexing rules.
(See Pl.’s SMF at 5 ¶¶ 24-25; Pl.’s Resps. To Def.’s 2nd Interrogs. at 4-5.) Dorn also concluded
that “[i]t simply took [plaintiff] too many iterations of the draft Guide and too long to produce a
final draft that met GAO standards.” (Mot., Ex. 15 (Decl. of Terrell Dorn) (“Dorn Decl.”) ¶ 3.)
In addition, it is not disputed that when working on the Kennedy Center engagement, plaintiff
missed the deadline for submitting the final draft of his section of the report; his initial draft
lacked O&M cost estimates and its analyses were criticized as insufficiently substantiated; he
prepared two more drafts which were also deemed inadequate; following plaintiff’s oral
presentation of his section of the report, Dorn concluded that plaintiff was overly formal,
scripted, and unable to recover when interrupted; and Dorn also concluded that plaintiff’s section
of the report was poorly written, unsupported, based on flawed methodology, and lacking a basic
understanding of the need to employ locality adjustments when estimating costs for high-cost
areas. (See Pl.’s SMF at 6 ¶¶ 31-35, 8-9 ¶¶ 39-44; Beyah Decl. ¶¶ 41-42 (noting Dorn and
Edelstein’s criticisms); Dorn DPM Notes at 1-2; Mot., Ex. 13 (Dorn EEO Aff., May 16, 2005)
(“Dorn Aff.”) ¶ 6; Fleming Aff. ¶ 7; Edelstein Aff. ¶¶ 4-6; Mot., Ex. 25 (Fleming Dep., Sept. 11,
2008) at 85-91.)
Plaintiff does not dispute the factual basis for many of these criticisms. He argues instead
that there were mitigating circumstances surrounding his failure to meet various deadlines and
comply with GAO document guidelines. Regarding the Guide engagement, he asserts that the
project’s focus changed in January 2004, with the purported effect of rendering “all” of his prior
work “useless,” and that he missed two other deadlines because he was required to prioritize his
responsibilities on the Kennedy Center engagement. (Beyah Decl. ¶¶ 21, 24; see Opp’n at 10-
15
11.) He also asserts that although GAO gave him some training on how to index materials when
he first joined the agency, “he never received more specific training from PI on how to index a
document.” (Opp’n at 11.) Similarly, regarding the Kennedy Center engagement, he attributes
his inability to timely develop O&M cost estimates to the fact that Kennedy Center officials “did
not produce this information,” and he argues that the final draft of his section of the report was
delayed because he had to seek clarification of his supervisors’ sometimes contradictory
comments. (See id. at 12-17.) These explanations do not assist plaintiff, because “plaintiff’s
perception of himself, and of his work performance, [are] not relevant.” Smith v. Chamber of
Commerce of the United States, 645 F. Supp. 604, 608 (D.D.C. 1986). “It is the perception of
the decisionmaker which is relevant,” id., and plaintiff “cannot establish pretext simply based on
[his] own subjective assessment of [his] own performance . . . .” Waterhouse, 124 F. Supp. 2d at
7, aff’d, 298 F.3d at 995; accord Talavera v. Fore, No. 07-CV-720, 2009 WL 2731275, at *15
(D.D.C. Aug. 31, 2009) (Bates, J.).
Plaintiff does, however, challenge the factual basis for the criticisms of his written work.
He has submitted a report by William Lawson, “an expert in the fields of buildings and real
estate” (Opp’n at 2), which concludes that plaintiff’s written work for the Guide and Kennedy
Center engagements consisted of “well written drafts for their level of development,” and that
plaintiff properly employed BOMA standards when calculating O&M costs for the Kennedy
Center engagement. (Mot., Ex. 50 (“Lawson Report”) at 1.) Lawson’s opinion about the quality
of plaintiff’s writing is not based upon expert knowledge or special familiarity with GAO
practices and requirements. In fact, Lawson never worked at GAO or previously evaluated the
performance of a GAO Band II analyst. (See Lawson Report at 13-14 (Lawson c.v.); Mot., Ex.
49 (Lawson Dep., Feb. 10, 2009) (“Lawson Dep.”) at 58.). Nor could Lawson say what
16
deadlines or oral feedback plaintiff was given, how many drafts he had written, or how many
drafts would have been acceptable for GAO employees in plaintiff’s situation. (See Lawson
Dep. at 40-41, 45-46, 49-50, 54.) Defendant also notes that Lawson evaluated plaintiff’s writing
abilities based upon the incorrect premise that plaintiff was responsible for nearly all of the final
draft of the Kennedy Center report (see id. at 82-84), when in fact, plaintiff was only responsible
for one section. (See also Mot., Ex. 22 (Decl. of Maria Edelstein) ¶ 8.) Because Lawson’s
opinion about the quality of plaintiff’s written work merely second-guesses the subjective
judgments of plaintiff’s supervisors, it cannot be relied upon to create any triable issues of fact.
See Sykes v. Napolitano, 634 F. Supp. 2d 1, 7 (D.D.C. 2009) (striking report by plaintiff’s expert
in Title VII case where “[plaintiff’s expert’s] opinion is not ‘expert’” but rather “merely the
conclusion of a lay person who reviewed limited information on behalf of a person with an
interest in the outcome”); Nance v. Librarian of Congress, 661 F. Supp. 794, 796 (D.D.C. 1987)
(finding that plaintiff’s expert in Title VII case had “no probative value” where he “had no
experience” rating defendant agency’s employees, was unfamiliar with actual responsibilities
position in question, and “made inaccurate assumptions as to what qualities the job entailed”).
Arguably, Lawson’s conclusion that plaintiff’s use of BOMA standards when estimating
O&M costs “is considered a normal industry practice” (Lawson Report at 1) would be competent
evidence. But even this does not aid plaintiff. First, the accuracy of plaintiff’s Kennedy Center
cost estimations were merely one factor among many that his supervisors considered when
evaluating his performance. Second, to the extent that plaintiff contends that he was criticized
for his decision to use the BOMA standards (see Pl.’s SMF at 16 ¶ U), the evidence he relies
upon shows that his supervisors did not object to the choice of BOMA standards per se. As
Edelstein explained, “[u]sing the BOMA information was not a concern. [The concern] was . . .
17
applying the information correctly so it was applicable to the local area.” (Opp’n, Attachment 32
(Edelstein Dep., July 15, 2008) at 69:10-13.)11 Plaintiff similarly explains in his declaration that
Dorn did not criticize him for using the BOMA standards but for supposedly failing to include a
locality adjustment when employing those standards. (Beyah Decl. ¶¶ 37-39.) While plaintiff
asserts that his original BOMA-based calculations did account for the locality adjustment (id. ¶¶
35, 38), Lawson stated that “reasonable people [can] disagree about whether the proper standard
was used,” and that the choice of standard is ultimately a question of “professional judgment.”
(Lawson Dep. at 36:5-9.)12
Given this record, it is not the Court’s job to second-guess Dorn and Edelstein’s decisions
to instruct plaintiff to include a locality adjustment. (See Beyah Decl. ¶¶ 37-38.) “Once the
employer has articulated a non-discriminatory explanation for its action, as did the [agency] here,
the issue is not ‘the correctness or desirability of the reasons offered but whether the employer
honestly believes in the reasons it offers.’” Fischbach v. Dist. of Columbia Dep’t of Corr., 86
F.3d 1180, 1183 (D.C. Cir. 1996) (quoting McCoy v. WGN Continental Broad. Co., 957 F.2d
368, 373 (7th Cir. 1992) (brackets and ellipses omitted). In other words, a district court judge
11
The portions of Goldstein’s deposition cited in plaintiff’s statement of facts establish
only that there were criticisms of plaintiff’s “estimation of the O&M costs for the Kennedy
Center engagement . . . .” (Opp’n, Attachment 34 (Goldstein Dep., Sept. 5, 2008), at 116:19-
117:6.) Similarly, the cited portions of Dorn’s deposition show only that Dorn criticized
plaintiff’s perceived misuse of the “Means Cost Guide” standards, not the BOMA standards.
(See Opp’n, Attachment 30 (Dorn Dep., July 17, 2008) at 152:20-153:1 (“The estimate that I was
working with Omar on or had a problem with Omar on was based upon the Means Cost Guide,
not on the BOMA Experience Exchange Report.”); accord Dorn Aff. ¶ 6 (“[Plaintiff] was to
provide cost estimates using the MEANS book [a reference book that all professionals in the
construction field use]. He failed at this miserably . . . . He told me that he called someone who
works for the MEANS Company and they told him that he did not have to consider some very
basic factors.”).)
12
Lawson also stated that he did not know whether plaintiff’s calculations had originally
included a locality adjustment. (Lawson Dep. at 62:18-22.)
18
does not sit as a “‘super-personnel department that reexamines an entity’s business decisions.’”
Id. at 1183 (quoting Dale v Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986); accord
Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008).
As for plaintiff’s interpersonal problems, defendant asserts that plaintiff’s supervisors
perceived that he was “at times confrontational in team meetings,” “that he had problems
interacting in a professional and cordial manner with coworkers,” and “that he was unsuccessful
in appropriately representing GAO to outside persons, including other agencies . . . .” (Mem. at
36.) The record establishes that plaintiff’s supervisors indeed concluded that he had difficulty
accepting constructive criticism or input from others and that he had negative or otherwise
inappropriate interactions with a number of other GAO teams and employees, including a GAO
librarian and John Brummet of the IAT team. (See Goldstein Aff. ¶ 20; Dorn Decl. ¶¶ 5-6, 18;
Fleming Aff. ¶¶ 9-10, Edelstein Aff. ¶¶ 3, 8-10, 12; Brummet Aff. ¶ 4 (offering first-hand
opinion that plaintiff had been “abrasive”); see also Edelstein Aff. ¶¶ 5-6 (describing plaintiff’s
inappropriate email tone and body language during meetings).) Plaintiff’s supervisors also
received complaints or concluded from personal observations that plaintiff had confrontational or
otherwise inappropriate interactions with officials from the State Department and Kennedy
Center. (See Dorn Aff. ¶¶ 5, 14, 18; Dorn DPM Notes at 1; Fleming Aff. ¶ 6; Edelstein Aff. ¶ 5;
Brummet Aff. ¶ 3 (describing call from State Department contact who complained about
plaintiff).)
Again, plaintiff does not challenge the fact that he was involved in a dispute with the
librarian; that the State Department client complained about him; or that his supervisors on the
Guide and Kennedy Center engagements had concerns about his interpersonal abilities based on
incidents they observed or learned about. Rather, he counters that the librarian dispute was not
19
his fault; that the employee who previously informed Dorn about the State Department’s
complaints later concluded that no further action was warranted; and that different GAO
employees with whom plaintiff worked on other projects had positive views of or interactions
with him. (See Opp’n at 19-21.) This does nothing to undermine defendant’s contention that
those who worked with and supervised plaintiff on the Guide and Kennedy Center projects – his
two “most important assignments” (Opp’n at 2) – reasonably and sincerely believed that that his
interpersonal abilities were a source of concern. See Singh v. U.S. House of Representatives, 300
F. Supp. 2d 48, 59 (D.D.C. 2004) (finding that statements about quality of plaintiff’s work by
individuals “who did not supervise . . . or work closely enough” with her were insufficient to
defeat summary judgment where plaintiff’s supervisors held different view).
In sum, “[t]he critical issue here is not whether [plaintiff’s] work . . . was actually
deficient,” but whether the agency’s “decision-makers on personnel issues[] were of that opinion
when they terminated [him]. There is no evidence that they were not.”13 Singh, 300 F. Supp. 2d
at 59. (See, e.g., Goldstein Aff. ¶ 20 (“I felt that after the training and time here at GAO,
management, myself included, had not seen enough growth in his ability to think conceptually,
to write, or to get his work accomplished.”).) The fact that Goldstein personally recruited
plaintiff and that he and Dorn recommended plaintiff’s hiring also seriously undercuts any
13
In addition, the Court notes that “probationary employees may be terminated for
problems even if those problems would not be good cause for terminating a permanent
employee.” George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005). The decision to terminate
plaintiff was made while he was a probationary employee and would originally have been
effective on September 10, 2004, shortly before the one-year anniversary of his effective GAO
start date. (See Hoskins Letter at 1.)
Although the PAB extended the termination’s effective date to October 18, this was due
to plaintiff’s administrative appeal and not the decisions of his supervisors. There is therefore no
merit to plaintiff’s argument that the agency improperly terminated him as a probationary
employee instead of as a permanent employee. (See Opp’n at 36.)
20
inference that their recommendation to terminate plaintiff, less than one year later, was
motivated by discriminatory animus. See Waterhouse, 298 F.3d at 996 (finding that probative
value of allegedly discriminatory statements by supervisor “was seriously undercut by the
undisputed fact that [the supervisor] approved the decision to hire [the plaintiff] earlier that same
year,” and citing supportive cases from other circuits). “Moreover, [Goldstein and Dorn were]
not the only one[s] to complain of [plaintiff’s] deficiencies,” id., as plaintiff’s performance on
projects besides the Guide and Kennedy Center was also criticized. (See, e.g., Goldstein Aff. ¶
22 (citing criticism by Band III Assistant Director Kathleen Turner); Gryszkowiec Meeting
Notes at 1, 3-4 (citing timeliness or other criticisms on projects involving “electronic waste,”
D.C. jail, and USDA’s Natural Resources and Environment mission area).)
“Because [plaintiff] did not contravene – and in fact admitted – many of the deficiencies
the defendants cited concerning [his] performance, [he] failed to establish that [his] employer’s
proffered explanation was unworthy of credence. At best, [his] responses constitute[] an
argument that, notwithstanding those failings, the [agency] should not have terminated [him]
because there were extenuating circumstances and there were some positive attributes to [his]
performance. But courts are without authority to second-guess an employer’s personnel decision
absent demonstrably discriminatory motive. And [plaintiff’s] responses offer[] no grounds for a
rational juror to conclude that the reason [he] was fired was racial [or gender-based]
discrimination rather than poor performance.”14 Waterhouse, 298 F.3d at 995 (internal quotation
14
Plaintiff’s argument that discrimination should be inferred from his “replacement” by a
female analyst, Maureen Luna-Long, is unpersuasive because she was not similarly situated.
(See Opp’n at 25.) “Employees are ‘similarly situated’ when ‘all of the relevant aspects’ of their
employment situations are ‘nearly identical.’” McFadden v. Ballard, Spahr, Andrews &
Ingersoll, LLP, 580 F. Supp. 2d 99, 109 (D.D.C. 2008) (quoting Neuren v. Adduci, Mastriani,
Meeks, & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)). It is undisputed that the PI team had
different subgroups including a facilities group, in which plaintiff worked, and a transportation
21
marks, brackets, and citations omitted). Accordingly, the Court shall grant summary judgment
on Counts I, II, and IV.
IV. RETALIATION
“To prove retaliation, the plaintiff generally must establish that he or she suffered (i) a
materially adverse action (ii) because he or she had brought or threatened to bring a
discrimination claim.” Baloch, 550 F.3d at 1198. Plaintiff contends that he was terminated
because he documented his April 7, 2004 meetings with Fleming and Edelstein, during which
they set performance expectations for him. (Opp’n at 23.) He argues that this was protected
“opposition” to discrimination15 because he separately informed Fleming “that he documented
their discussions because he believed that his race and sex motivated the setting of the
expectations,” and later informed Dorn and Goldstein that he submitted the memorializing
document to Fleming.16 (Id.) Because the Court has already concluded that plaintiff has not
produced evidence that would cast doubt upon defendant’s proffered reason for terminating him,
group. (See Beyah Dep. at 131:23-132:2.) Luna-Long was hired by different GAO officials to
fill a transportation specialist’s position that arose two months before plaintiff’s termination had
been proposed. (See Reply at 15-16; id., Ex. F-H (vacancy announcements and Luna-Long
application).) The most relevant aspect of Luna-Long’s employment – namely, the position she
was hired to fill – is therefore not “nearly identical” to plaintiff’s position.
15
The Court notes that plaintiff cannot base his retaliation claim on a theory that he
“participated” in statutorily protected activity. First, his statement that he “participated in
protected activity” by “inform[ing] his supervisors that he was documenting their discriminatory
behavior” (Opp’n at 4) does not fall under the statutory definition of participating in an EEO
“investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). Second, he failed to oppose
defendant’s argument that his retaliation claim cannot be based upon EEO participation because
he only contacted an EEO counselor after he learned that his supervisors recommended his
termination. (See Mem. at 40.) Plaintiff has thus conceded any argument based on Title VII’s
“participation clause.” See Franklin v. Potter, 600 F. Supp. 2d 38, 60 (D.D.C. 2009) (citing
authorities and treating defendant’s argument in motion for summary judgment as conceded
where plaintiff failed to address it in his opposition).
16
The April 7 meeting memoranda did not reference race or gender. (See generally Mot.,
Exs. 53 & 54.)
22
the Court grants summary judgment on his retaliation claim.17
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion. A separate Order will
accompany this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 26, 2009
17
In the alternative, the Court agrees with defendant that plaintiff’s actions did not
constitute “opposition” to discrimination on the basis of race or gender. Title VII provides that it
is unlawful to retaliate against an employee “because he has opposed any practice made an
unlawful employment practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a) (emphasis
added). “To come within the opposition clause of Section 2000e-3(a), one must demonstrate an
objectively reasonable belief that the practice ‘opposed’ actually violated Title VII; otherwise,
the activity . . . was not statutorily protected activity.” Burton v. Batista, 339 F. Supp. 2d 97, 114
(D.D.C. 2004). Section 2000e-2(a) defines unlawful practices as (1) discrimination “against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin,” or (2) classification of
an employee that would “adversely affect his status as an employee, because of such individual’s
race, color, religion, sex, or national origin.” Id. § 2000e-2(a)(1).
Plaintiff has not demonstrated that he had an objectively reasonable belief that merely
setting expectations for a probationary employee’s performance can constitute discrimination in
the terms and conditions of employment or an adverse effect upon employment status. See also
Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (“An ‘adverse employment action’ within
the meaning of McDonnell Douglas is ‘a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing significant change in benefits.’” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998). Nor would it be objectively reasonable to hold such a belief. “An employer
should be entitled to discuss and even critique employees about legitimate job performance
problems without being subjected to suit, because Title VII’s anti-retaliation provision was not
intended to immunize insubordinate, disruptive, or nonproductive behavior at work.” Rattigan v.
Holder, 604 F. Supp. 2d 33, 49 (D.D.C. 2009) (internal quotation marks and citations omitted).
23
| {
"pile_set_name": "FreeLaw"
} |
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00253-CR
____________________
CLEVERT LEE TYLER, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 12-14509
________________________________________________________ _____________
MEMORANDUM OPINION
A grand jury indicted Clevert Lee Tyler1 (Tyler) for “intentionally and
knowingly caus[ing] the death of . . . [S.V.], hereafter styled the Complainant, by
shooting Complainant with a deadly weapon, to wit: a firearm[.]”2 A jury convicted
1
Clevert Lee Tyler is also known as Cleveland Lee Tyler.
2
We identify the victim and family members by using initials. See Tex. Const.
art. I, § 30(a)(1) (granting crime victims the “right to be treated with fairness and
with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
1
Tyler of murder and assessed punishment at life in prison. See Tex. Penal Code Ann.
§ 19.02(b)(1) (West 2011). Tyler timely filed a notice of appeal. In his first two
appellate issues, Tyler challenges the legal sufficiency of the evidence supporting
his conviction. In his third issue, he argues the trial court abused its discretion in
denying his request for a jury instruction on the lesser-included offense of
manslaughter. We affirm.
The Evidence
Angie Conley, a Beaumont 911 dispatch supervisor, testified that on or about
June 12, 2012, she received a call through the 911 system from a person who
identified himself as Tyler, and Conley dispatched officers to 1208 Harrison Street
in reference to the call. A recording of the 911 call was admitted into evidence and
published to the jury. In the recording played for the jury, the caller reported that he
had just killed his girlfriend by shooting her “between the eyes with a 9.”
Officer Matthew Bean with the Beaumont Police Department testified that on
or about the evening of June 12, 2012, he was an officer with the street crimes unit
and was dispatched to 1208 Harrison Street in reference to a shooting. Officer Bean
testified he came into contact with Tyler in the back yard of the residence and
ordered Tyler to the ground for the safety of the officers at the scene. According to
Officer Bean, after Tyler complied and was placed in handcuffs, Officer Bean
2
located a pistol on top of the trunk of a vehicle in the driveway area and officers read
Tyler his Miranda rights. Officer Bean testified that Tyler attempted to direct the
officers to the location of the victim’s body, but the officers could not discern the
directions. According to Officer Bean, Tyler accompanied the officers in a patrol car
and guided them to a remote location where the officers located the victim’s
deceased body face-down in the roadway with blood pooled around her head. Officer
Bean testified that he learned from other officers that the victim was S.V.
S.V.’s twenty-five-year-old daughter, J.A., testified that she went to her
mother’s home in Beaumont on the morning of June 12, 2012, and that at that time
her mother lived about a block away from Tyler, whom her mother had been dating
for almost a month. According to J.A., she had stopped by her mother’s home
because her mother was concerned about text messages sent by Tyler. J.A. testified
that on that morning her mother seemed nervous and scared of Tyler, and J.A.
advised her mother before leaving that she should leave Tyler alone. J.A. testified
that after she got home from work that evening, she went to her grandmother’s home
and received a disturbing call from her sister regarding their mother. According to
J.A., she and her grandmother went to S.V.’s home and saw police cars at Tyler’s
home. J.A. testified she was concerned and went to talk to the police, who asked her
3
to go back home and wait. J.A. testified that she learned from law enforcement later
that night that her mother had been a victim of a possible homicide.
S.B., Tyler’s niece, testified that Tyler was living with her grandmother at
1208 Harrison Street on or about June 12, 2012, and that S.B. had been at the house
all day. According to S.B., Tyler and his girlfriend, S.V., were at the house that day
for a couple of hours, and Tyler had told S.B. that he thought S.V. was cheating on
him. S.B. testified that she witnessed them talking outside and Tyler was being
“stern[]” and “[g]etting that point across.” S.B. testified that Tyler seemed “[k]ind
of aggravated[,]” and S.V. seemed “[t]imid.” S.B. testified that Tyler had a gun in
his pants that day, and although she did not remember him pulling the gun out, she
acknowledged at trial that in her statement to law enforcement she had reported that
Tyler waived a gun in S.V.’s face and then put it back in his pants. According to
S.B., Tyler then started drinking beer with a smirk on his face. According to S.B.’s
statement, before Tyler and S.V. left, Tyler asked S.V. to go into the bathroom, S.V.
looked scared, they argued in the bathroom, S.V. left the bathroom and looked like
she was crying, S.V. left the house, Tyler stayed in the bathroom a little longer, and
then Tyler also left the house. S.B. acknowledged at trial that at the time Tyler felt
like S.B. was taking S.V.’s “side[,]” that Tyler told S.B. that she should be on “his
4
side[]” because they were family, and S.B. told Tyler that “right is right and wrong
is wrong[.]”
Stacie Gardener testified that on June 12, 2012, she was a crime scene
technician with the Beaumont Police Department and was dispatched to 1208
Harrison in regards to a victim of a shooting. Video recordings and photos taken by
law enforcement of 1208 Harrison after the 911 call and the scene where the body
was located were admitted into evidence. She testified that there was a 9mm gun on
the trunk of a vehicle “in a driveway that was kind of far back from the house[.]”
Gardener testified that Tyler said that between the time he shot S.V. and when the
gunshot residue kit had been administered on him he had driven a car, smoked a
cigarette, and drank a beer.
Officer Christopher Daniels with the Beaumont Police Department testified
that he responded to 1208 Harrison Street and read Tyler his Miranda warnings.
Daniels testified that his patrol car video system recorded Tyler being transported to
where Tyler said the body was located. According to Officer Daniels, Tyler said that
he “murdered somebody[,]” he and S.V. had had an argument, and he shot her
between the eyes. The patrol car video recording was admitted and played for the
jury. Officer Daniels testified that he retrieved a spent 9mm casing from near S.V.’s
body.
5
Officer Robert Riley, who was a police officer with the Beaumont Police
Department in 2012, testified that he arrived at 1208 Harrison Street after Tyler had
been read his Miranda warnings. According to Officer Riley, Tyler said he had
murdered his girlfriend by shooting her and that he could take the officers to where
the body was located, which was about three-fourths of a mile away. Officer Riley
testified that Tyler was taken to the Beaumont Police Department to speak to
detectives and that he appeared calm during the recorded interview. According to
Officer Riley’s report, Tyler stated that when he realized he had pulled the trigger
he blacked out and went into shock.
Detective Charla Phillips with the Beaumont Police Department testified that
she arrived on the scene at about ten o’clock at night on June 12, 2012, she was
advised to go to the station, and she learned that Tyler wanted to speak with
detectives. Detective Phillips testified that Tyler was given his Miranda warnings,
stated that he understood the warnings, signed the warnings, and voluntarily agreed
to an interview by Detective Phillips and Detective Pratt. According to Detective
Phillips, Tyler told them that he murdered S.V. Detective Pratt testified that Tyler
appeared to be honest and calm during the interview. According to Detective Pratt,
Tyler stated that S.V. dropped to her knees and raised her hands prior to him pulling
the trigger.
6
Juan Rojas, a trace evidence examiner with the Texas Department of Public
Safety Crime Lab, testified that he tested the gunshot residue kit in this case collected
from Tyler, and the kit tested positive for gunshot residue. Sue Kelly, a crime scene
technician for the Beaumont Police Department, testified that she attended the
autopsy of S.V. and took photographs. According to Kelly, the photographs she took
show that S.V. had a wound to her forehead, and the doctor performing the autopsy
removed a bullet from S.V.’s head and gave it to Kelly for evidentiary purposes.
Deputy Bradley Bruns with the Harris County Sheriff’s Department testified that in
2012 he was a firearms and tool mark examiner, he examined the 9mm firearm and
the shell casing recovered in this case, and that, in his opinion, the shell casing was
fired from the 9mm firearm submitted for testing.
Tyler testified that he was diagnosed with schizophrenia, has problems with
his memory and has blackouts, hears voices, and “experience[s] extreme paranoid
thoughts.” According to Tyler, he did not remember all of the events on the day of
S.V.’s death, but that he remembered that he intended “to scare her and not to shoot
her and all of a sudden the gun just went off.” He testified he did not remember
pulling the trigger and he explained he was “deeply remorseful.”
7
Legal Sufficiency
In issues one and two, Tyler argues the evidence was legally insufficient to
prove that he knowingly and intentionally committed the alleged offense of murder.
Specifically, Tyler contends that the evidence the State presented arguably could
support a conviction for causing S.V.’s death recklessly or by criminal negligence,
but not that Tyler had the requisite mens rea or that he intentionally or knowingly
caused S.V.’s death.
In reviewing the legal sufficiency of the evidence, we review all the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). The fact finder is the ultimate authority on the credibility
of witnesses and the weight to be given their testimony. See Penagraph v. State, 623
S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We give deference to the fact
finder’s responsibility to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must
presume that the fact finder resolved such facts in favor of the verdict and defer to
8
that resolution. Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We also “‘determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214
S.W.3d at 16-17). “Direct and circumstantial evidence are treated equally:
‘Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.’”
Id. (quoting Hooper, 214 S.W.3d at 13).
As previously discussed, the jury is the sole judge of the witnesses’ credibility
and the weight to be given to their testimony. Jackson, 443 U.S. at 318-19; see also
Hooper, 214 S.W.3d at 13. Viewing the evidence in the light most favorable to the
verdict, the jury could have reasonably concluded, beyond a reasonable doubt, that
Tyler committed the offense of murder. See Tex. Penal Code Ann. § 19.02(b)(1);
Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13; see also Brooks, 323
S.W.3d at 899; Clayton, 235 S.W.3d at 778. We overrule issues one and two.
Request for Jury Instruction
In his third issue, Tyler contends the trial court abused its discretion by
denying Tyler’s request for a jury instruction for the lesser-included offense of
9
manslaughter. According to Tyler, he was entitled to the lesser-included offense
instruction because there was some evidence that he recklessly, not intentionally or
knowingly, caused S.V.’s death, and that “[i]t was up to the jury to determine the
strength and believability of this evidence[.]”
“[A] lesser-included offense instruction shall be included in the jury charge
if: (1) ‘the requested charge is for a lesser-included offense of the charged offense;
and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the
lesser offense.’” Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006)
(quoting Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005)).
To determine whether the requested charge is for a lesser-included offense of
the charged offense, we examine the pleadings and make this determination as a
question of law. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Because
manslaughter is a lesser-included offense of murder, the first prong of the test is
satisfied. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012);
Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); see also Tex. Code
Crim. Proc. art. 37.09(3) (West 2006). In order to satisfy the second prong of the
test, there must be some evidence that would allow a rational jury to find that if Tyler
was guilty, he was guilty only of manslaughter. See Guzman, 188 S.W.3d at 188-89.
In this step, anything more than a scintilla of evidence may be sufficient to entitle a
10
defendant to a lesser-included charge. Hall, 225 S.W.3d at 536. “[T]he evidence
must establish the lesser-included offense as ‘a valid, rational alternative to the
charged offense.’” Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.
App. 1999)).
On appeal, Tyler does not point this Court to any specific evidence in support
of his argument. Manslaughter would require a finding that Tyler recklessly caused
S.V.’s death. See Tex. Penal Code Ann. § 19.04 (West 2011). In determining
whether there is evidence to support a charge on recklessness, a statement that a
defendant did not intend to kill the victim “cannot be plucked out of the record and
examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App.
1986).
To raise manslaughter, Tyler must have presented affirmative evidence that
he recklessly caused S.V.’s death, specifically that he was aware of, but consciously
disregarded, a substantial and unjustifiable risk that the result—a death—would
occur. See Roy v. State, 509 S.W.3d 315, 317-18 (Tex. Crim. App. 2017). Tyler
testified that he only intended to scare S.V. According to Tyler, he blacked out when
he pulled the trigger, and he does not remember what happened. This evidence,
however, does not demonstrate that Tyler recklessly caused the death of S.V. See
Tex. Penal Code Ann. § 6.03(c) (West 2011) (defining “recklessly”); Schroeder v.
11
State, 123 S.W.3d 398, 400-01 (Tex. Crim. App. 2003) (Appellant who testified that
he remembered the events leading up to the shooting but suddenly “blacked out” and
had no recollection of actually shooting the victim could not have been aware of
having caused the victim’s death at the time of the shooting; the trial court did not
err by not submitting to the jury a manslaughter charge as a lesser-included offense
because “[e]vidence of a defendant’s inability to remember causing the death of the
victim does not entitle the defendant to a charge on the lesser-included offense of
manslaughter[.]”).
Tyler’s niece testified that Tyler and S.V. had argued that day and that Tyler
was upset with S.V. because he believed she was “cheating on him[.]” In his
statement to law enforcement, Tyler admitted that he drove S.V. to a remote location,
he intended to scare her, that he pointed the gun at her, that she got on her knees and
put her hands up, and that he shot S.V. in the head. In light of the other evidence
showing that Tyler acted intentionally and knowingly, and considering the entire
record, we conclude that the evidence does not show that, if Tyler is guilty, he is
guilty only of acting recklessly. See Cavazos, 382 S.W.3d at 385 (“Pulling out a gun,
pointing it at someone, pulling the trigger twice, fleeing the scene . . . , and later
telling a friend ‘I didn’t mean to shoot anyone’ does not rationally support an
inference that Appellant acted recklessly at the moment he fired the shots. The
12
evidence here does not support a finding of recklessness and does not rise to level
that would convince a rational jury to find that if Appellant is guilty, he is guilty of
only the lesser-included offense.”); see also Cardenas, 30 S.W.3d at 393.
Under the circumstances of this case, we cannot say that the trial court
improperly denied Tyler’s request for a jury instruction on the lesser-included
offense of manslaughter. We overrule issue three. We affirm the trial court’s
judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on July 31, 2017
Opinion Delivered March 7, 2018
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
13
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3 Ariz. App. 229 (1966)
413 P.2d 288
TEMP-RITE ENGINEERING COMPANY, Inc., a corporation, Appellant,
v.
CHESIN CONSTRUCTION COMPANY, a corporation, and Tucson Land and Development Company, a corporation, Appellees.
No. 2 CA-CIV 117.
Court of Appeals of Arizona.
April 21, 1966.
Rehearing Denied May 25, 1966.
Cusick & Watkins, by Hugh W. Stewart, Tucson, for appellant.
Lesher, Scruggs, Rucker, Kimble & Lindamood, by D. Thompson Slutes, Tucson, for appellees.
MOLLOY, Judge.
This is an appeal from a judgment rendered in favor of the defendants after a retrial ordered in an appellate decision. The Supreme Court of the State of Arizona in Temp-Rite Engineering Co. v. Chesin Construction Co., 91 Ariz. 360, 372 P.2d 701 (1962), determined that there should be a new trial, after a previous judgment in favor of the defendants. In the appellate opinion, our Supreme Court held that the construction contract which is the subject of this action was ambiguous and indefinite as to whether the contract was entire or severable, i.e., as to whether the heating and cooling work to be performed by the *230 plaintiff under the contract pertained to all houses built by the defendant in a certain subdivision or only to whatever work might be performed by the plaintiff at the direction of the defendant. The Supreme Court held that the contract was ambiguous and that the trial court erroneously failed to admit evidence as to the meaning of the ambiguous language.
Prior to retrial, the parties stipulated as to the amount of the plaintiff's damage in the event that the plaintiff should prevail and further stipulated that the only issues to be tried were these:
"a. Was the work performed by the Plaintiff for the Defendants in compliance with the contract?
"b. Was the said contract entered into by the parties on April 8, 1958, an entire or severable (divisible) contract?"
It was further stipulated:
"That if it is determined by the court that the contract was breached by the plaintiff, then the plaintiff will take nothing by his Complaint."
At the commencement of the trial, the plaintiff requested findings of fact and conclusions of law and at the conclusion of the trial to the court the following findings were made, among others:
"5. The defendants requested the plaintiff to install one unit each in five separate houses;
"6. Heating systems were installed in five houses but the heating systems installed were not as called for by the plan;
"7. It was a physical impossibility to install the heating system, as called for in the plan, in the type of house being built;
"8. Therefore, the work performed by the plaintiff for the defendants was not in compliance with the contract;
"9. The parties were mutually mistaken at the time they signed the Contract which was impossible to perform."
On the basis of the foregoing findings of fact the court made the following conclusions of law:
"1. The Contract between the parties was breached by the plaintiff in that the heating systems installed by the plaintiff in five houses of the defendants were not in compliance with the Contract;
"2. Because the work performed by the plaintiff was not in compliance with the Contract, the question of the legal issue of whether or not the Contract was entire or severable is immaterial and moot;
"3. The plaintiff is entitled to take nothing by its Complaint and that the defendants are entitled to Judgment in the above-entitled matter."
The court entered judgment for the defendants and this appeal follows. The questions raised on appeal are whether the trial court erred in making a finding of fact and in basing its judgment in part upon impossibility of performance and/or mutual mistake of the parties. It is the contention of appellant that this was error because (1) impossibility of performance and mutual mistake were not in issue under the stipulation of the parties and (2) the injection of these concepts into the decision of the trial court violated the law of the case, as enunciated by our Supreme Court in the decision cited above.
We find in the records sufficient evidence to warrant the court in finding that the work performed by the plaintiff upon the five houses was not in accordance with the contract. There was evidence that the contract required duct work for heating and cooling which would be "sized-down" or "stream-lined" while that installed in the five houses completed was of the square plenum type, with "tap-ins," the latter being a less expensive type of construction. There was also testimony that the contract called for a damper to change from heating to cooling with a chain control which could be worked from the inside of the house *231 while that which was installed was a slide damper which had to be operated from the roof. Additionally, there was testimony that the general workmanship was "sloppy" and that the work performed by the plaintiff was inordinately slow in making corrections so that the work of other subcontractors was adversely affected. There was showing that the defendants had to employ another contractor to remedy some of the work on two of the houses upon which the plaintiff worked.
On appeal, this court is constrained to resolve all conflicts in the evidence in favor of the trial court's resolution thereof and therefore we must uphold the decision of the trial court, unless reversible error was committed by the trial court in going outside of the issues stipulated by the parties in finding that it was impossible to do the work as required by the contract.
The only testimony that it was impossible to perform this work according to the contract was injected into the record by Raymond S. Ash, the president of the plaintiff-corporation, who testified on rebuttal that it was impossible to install the sized-down ducts in the particular houses. Under these circumstances, we hold that the variance, if any, between the proof and the pretrial stipulation was one brought about by the plaintiff itself, and it therefore cannot complain on appeal. In Loya v. Fong, 1 Ariz. App. 482, 404 P.2d 826 (1965), this court dealt with a situation where a trial court permitted evidence into the record, over objection, which was outside of the issues framed by a stipulated pretrial order. There we held that reversible error was committed in not limiting the issues as stipulated. In this decision, however, we indicated that such a stipulation could be waived by the parties. We said:
"The second justification asserted for the court's ruling is that when issues are tried with the consent of the parties, the giving of instructions to the jury based upon such issues so tried is proper. With this law the court also agrees. Grammas v. Colasurdo, 48 N.J. Super. 543, 138 A.2d 553 [1958]; Jackson v. Cope, 1 Utah 2d 330, 266 P.2d 500 [1954]. And this court also accepts the law to be that if issues are tried with the implied consent of the parties, it is proper to amend the pleadings to conform thereto, either during or after trial, and that the amendment of such pleadings does not affect the validity of the trial of such issues. Electrical Advertising, Inc. v. Sakato, 94 Ariz. 68, 71, 381 P.2d 755 [1963]; Grammas v. Colasurdo, supra."
1 Ariz. App. at 485, 404 P.2d at 829.
The converse of Loya v. Fong is presented here. There is no question but what the plaintiff has consented to any broadening of the issues as represented by the interjection of the testimony under discussion. Accordingly, we hold that no error was committed by the trial court in buttressing its judgment with the testimony so volunteered.
The appellant has also relied upon the doctrine that an appellate decision, right or wrong, is controlling in subsequent litigation. With this law, we agree. But we have read the cited opinion of our Supreme Court, and find that it no way dealt with the problem now before this court. The question of whether or not the plaintiff had conformed to the contract in question and, if not, why not, was not before our Supreme Court in the previous appeal. We believe the following to be a proper statement of the law:
"In the absence of a mandate or opinion to the contrary, the fact that the matter has been on appeal does not prevent an enlargement or restriction of the issues after the case has been remanded for new trial."
Harbel Oil Company v. Steele, 1 Ariz. App. 315, 317, 402 P.2d 436, 438 (1965)
Judgment affirmed.
KRUCKER, C.J., and HATHAWAY, J., concurring.
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MATTHEW D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.D., Appellees.
No. 1 CA-JV 17-0372
FILED 1-30-2018
Appeal from the Superior Court in Maricopa County
No. JD30985
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
Law Office of Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee Department of Child Safety
MATTHEW D. v. DCS, L.D.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
W I N T H R O P, Presiding Judge:
¶1 Matthew D. (“Father”) appeals the juvenile court’s order
terminating his parental rights to L.D. Father contends there was
insufficient evidence to terminate his parental rights due to chronic, and
likely persisting, drug abuse and due to his alleged failure to remedy the
circumstances which caused L.D. to remain in an out-of-home placement
for fifteen months. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the biological parent of L.D., born in 2015.1 At birth,
L.D. tested positive for methamphetamine and THC and was hospitalized
with withdrawal-related symptoms. The Department of Child Safety
(“DCS”) immediately took custody of L.D. and placed him in foster care
where he has remained.
¶3 In July 2015, Father tested positive for methamphetamine.
DCS subsequently filed a dependency petition, alleging L.D. was
dependent as to Father on the ground of substance abuse. Father contested
the dependency, but the juvenile court granted DCS’ petition, finding L.D.
dependent as to Father. DCS then established a case plan for family
reunification concurrent with an alternative plan for termination and
adoption. In order to reunify with L.D., Father was required to demonstrate
sobriety, stability, and effective parenting skills.2 Following the
dependency hearing, Father tested negative for controlled substances on
1 Mother’s parental rights were terminated concurrently with
Father’s; however, she is not a party to this appeal.
2 To help Father accomplish these goals, DCS offered the following
services: parent aide after 30 days sobriety; parenting classes; substance
abuse assessment/treatment through TERROS; substance abuse testing
and urinalysis; and domestic violence counseling.
2
MATTHEW D. v. DCS, L.D.
Decision of the Court
numerous urinalysis tests. However, before Father could continue DCS
services, he was sentenced to six months in prison stemming from his drug-
related arrest in March 2015.3
¶4 While in prison Father participated in numerous
rehabilitation and self-improvement programs. In December 2015, Father
completed a Maricopa Workforce Connections Employability Skills
Workshop. Additionally, Father obtained certificates for his successful
participation in domestic violence training, ALPHA Program for criminal
behavior modification and substance abuse, Thinking for a Change, Pre-
ALPHA anger management, and ALPHA parenting training. After being
released from prison, however, Father was unable to remain sober and
relapsed in August 2016. Father then attended a 45-day drug treatment
program at Chicanos Por La Causa, but relapsed after completion of the
program in spring 2017.
¶5 In September 2016, DCS moved to terminate Father’s parental
rights pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-533 (2016).
First, DCS alleged Father abandoned L.D. and failed to provide L.D. with
reasonable support, regular contact, and normal parental supervision. See
A.R.S. § 8-533(B)(1). Second, DCS alleged Father failed “to discharge [his]
parental responsibilities because of . . . a history of chronic abuse of
dangerous drugs, controlled substances or alcohol and [because] there are
reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period.” A.R.S. § 8-533(B)(3). Third, DCS moved
to terminate Father’s parental rights because L.D. had been in an out-of-
home placement for a period of six months and Father had “substantially
neglected or willfully refused to remedy the circumstances that cause[d] the
child to be in an out-of-home placement.” A.R.S. § 8-533(B)(8)(b). DCS
further alleged termination would be in L.D.’s best interest because it
would provide L.D. with permanency and stability.
¶6 Father contested the termination and a two-day evidentiary
hearing was held in July 2017. At the hearing, Father acknowledged that
he struggled with substance abuse and admitted to using
methamphetamine for over ten years. Father further acknowledged that,
in general, parents make bad decisions while under the influence of drugs,
but testified that he is working on his substance dependency, and provided
proof of the services he engaged in while incarcerated. Additionally, Father
3 Additionally, in 2014, Father was convicted of possession of
methamphetamine and placed on probation.
3
MATTHEW D. v. DCS, L.D.
Decision of the Court
testified that his participation and completion in a 60-day inpatient drug
treatment program, which he completed only a couple days before the
termination hearing, would allow him to stay sober because he had
maintained sobriety for a longer period; thus, he is better equipped to
maintain sober living in the future. Father further testified that he plans to
continue his sobriety by moving into the Garfield house, a sober living
home, for four months. In the meantime, he has taken steps to secure
employment by obtaining his food handler’s license.
¶7 The DCS case supervisor testified that Father’s participation
in services had been inconsistent throughout the case; she recognized,
however, that Father was unable to participate in the referred services while
incarcerated. The case supervisor further testified that although Father
alleged he was searching for employment, he had not provided
employment verification or housing information to DCS. In addition, the
DCS case manager testified that it was unlikely Father would maintain
sobriety due to his history of chronic substance abuse and repetitive failure
to maintain sobriety after engaging in substance abuse treatment programs
in the past.
¶8 The juvenile court took the matter under advisement, and
subsequently terminated Father’s parental rights on the grounds of
prolonged substance abuse, pursuant to A.R.S. § 8-533(B)(3), and out-of-
home placement for a period of fifteen months, pursuant to A.R.S.
§ 8-533(B)(8)(c).4 In terminating Father’s rights on the basis of prolonged
substance abuse, the court found that “Father’s participation in inpatient
drug treatment came as a consequence of his failure to comply with
probation terms . . . [he] did not seek out this treatment affirmatively.” The
court further found it was in L.D.’s best interest to terminate Father’s
parental rights because L.D. was in an adoptive placement and had no
reasonable prospect of reunifying with Father in the near future.
¶9 Father timely appealed, and we have jurisdiction pursuant to
the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A) (2014); and
Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
4 The juvenile court found DCS did not meet its burden of proof to
terminate Father’s rights based on abandonment or out-of-home placement
for six months.
4
MATTHEW D. v. DCS, L.D.
Decision of the Court
ANALYSIS
¶10 On appeal, Father argues the juvenile court erred in finding
he was unable to discharge his parental responsibilities because of a history
of substance abuse and that there was insufficient evidence to find his past
substance abuse was a condition that would continue for a prolonged
indeterminate period.
¶11 We view the evidence in the light most favorable to sustaining
the juvenile court’s order and will overturn the court’s findings only if they
were clearly erroneous, meaning not supported by reasonable evidence.
Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998). See
also Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002)
(“The juvenile court, as the trier of fact in a termination proceeding, is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.” (citation
omitted)). Although parents have a fundamental right to raise their
children as they see fit, that right is not without limitation. Minh T. v. Ariz.
Dep’t of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001). To terminate this
fundamental right, the juvenile court must determine by clear and
convincing evidence that one of the statutory grounds for termination
exists, and by a preponderance of the evidence that termination is in the
best interest of the child. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249, ¶ 12 (2000).
¶12 As relevant here, a juvenile court may terminate a parent’s
rights if it finds by clear and convincing evidence “[t]hat the parent is
unable to discharge parental responsibilities because of . . . a history of
chronic abuse of dangerous drugs, controlled substances or alcohol and
there are reasonable grounds to believe that the condition will continue for
a prolonged indeterminate period.” A.R.S. § 8-533(B)(3). To find a parent
has a history of “chronic” abuse of dangerous drugs, the drug usage need
not be constant, but must be long lasting. Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). Periods of temporary abstinence
from drugs are insufficient to outweigh a parent’s significant history of
abuse. Id. at 379, ¶ 29. Further, a child’s interest in permanency prevails
over a parent’s uncertain battle with addiction. Jennifer S. v. Dep’t of Child
Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016).
¶13 Contrary to Father’s assertions, reasonable evidence supports
the juvenile court’s findings. The record reflects that Father has struggled
to maintain sobriety for over ten years, even with the help of multiple
substance abuse treatment programs. In addition, Father has serial criminal
5
MATTHEW D. v. DCS, L.D.
Decision of the Court
convictions stemming from his drug use. Although Father has participated
in numerous treatment programs, he has not demonstrated sustained
success in sobriety. After his release from prison in March 2016, Father
relapsed. He then attended a 45-day inpatient drug treatment program,
and relapsed again. Before the termination hearing, Father had just
completed another inpatient substance abuse program, which he alleges
will allow him to finally overcome his substance dependency. In
terminating Father’s parental rights, the juvenile court found that Father
attended inpatient treatment programs largely as a result of his failure to
comply with probation terms, not as an affirmative decision to overcome
his substance abuse. We cannot say, on this record, that the court abused
its discretion in terminating Father’s parental rights based on his history of
substance abuse and the likelihood that his substance dependency would
continue.
¶14 Father also argues the juvenile court relied on insufficient
evidence to terminate his parental rights pursuant to A.R.S. § 8-533(B)(8)(c),
arguing he remedied the circumstances which caused L.D. to be in an out-
of-home placement. In support, Father reiterates the arguments he raised
to contest termination pursuant to A.R.S. § 8-533(B)(3)—that his recent and
presumably successful participation in a substance abuse treatment
program will allow him to maintain sobriety. We, however, need not
address this argument because there is sufficient evidence to affirm the
court’s termination pursuant to A.R.S. § 8-533(B)(3). See Raymond F., 224
Ariz. at 376, ¶ 14 (finding we will affirm a termination of parental rights if
“any one of the statutory grounds is proven and if the termination is in the
best interest of the child[]” (citing Jesus M., 203 Ariz. at 280, ¶ 2)).
¶15 Father does not challenge the juvenile court’s finding that
termination was in L.D.’s best interest. Nonetheless, we note the record
supports the finding. The court found L.D. is in an adoptive placement and
will benefit from the permanency that foster care provides, especially
because there is no evidence that family reunification will occur in the near
future.
6
MATTHEW D. v. DCS, L.D.
Decision of the Court
CONCLUSION
¶16 The juvenile court’s order terminating Father’s rights to L.D.
is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
7
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722 F.Supp.2d 1322 (2010)
TIANJIN MAGNESIUM INTERNATIONAL CO., LTD., Plaintiff,
v.
UNITED STATES, Defendant, and
US Magnesium LLC, Defendant-Intervenor.
Slip Op. 10-87. Court No. 09-00012.
United States Court of International Trade.
August 9, 2010.
*1326 Riggle & Craven (David A. Riggle, David J. Craven, Chicago, IL, and Shitao Zhu), for Plaintiff Tianjin Magnesium International Co., Ltd.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, United States Department of Justice (David S. Silverbrand and Patryk J. Drescher), for Defendant United States.
King & Spalding, LLP (Stephen A. Jones, Jeffrey B. Denning, and Jeffrey M. Telep), Washington, DC, for Defendant-Intervenor, U.S. Magnesium LLC.
*1327 Before: TSOUCALAS, Senior Judge.
OPINION
TSOUCALAS, Senior Judge.
Plaintiff Tianjin Magnesium International Co., Ltd., ("TMI") and Defendant Intervenor U.S. Magnesium LLC ("USM") each move for judgment on the agency record pursuant to USCIT R. 56.2, challenging the final determination of the Department of Commerce (the "Department" or "Commerce") in Pure Magnesium from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 73 Fed.Reg. 76,336 (Dep't Commerce Dec. 16, 2008) ("Final Results").
Plaintiff asserts that Commerce acted arbitrarily, capriciously, and not in accordance with law when it revoked its previous decision to defer administrative review by one year and also caused TMI irreparable harm when it failed to provide notice of the rescission. Plaintiff further claims that the Department incorrectly calculated the surrogate financial ratios. See Mem. in Supp. of the Mot. for J. on the Agency R. Submitted by Pl. TMI ("TMI's Br."); see also Def.'s Resp. in Opp'n to Pl.'s and Def. Intervenor's Mots. for J. Upon the Agency R. ("Def.'s Br."); USM's Resp. to TMI's Br. in Supp. of Mot. for J. on the Agency R. ("USM's Resp."); Reply of Pl. TMI ("TMI's Reply"). Defendant Intervenor moves that Commerce's actions were not supported by substantial evidence and in accordance with law when it (1) assessed the surrogate value for TMI's magnesium byproduct; (2) used Indian domestic data to assign a surrogate value for dolomite; (3) failed to select the best available financial statement to value the financial ratios; and (4) refused to apply a combination rate to TMI. See USM's R. 56.2 Confidential Br. in Supp. of Mot. for J. on the Agency R. ("USM's Br."); see also Resp. Br. of TMI to the R. 56.2 Mot. of USM ("TMI's Resp."); Reply Br. of USM ("USM's Reply").
PROCEDURAL HISTORY
In accordance with Section 751 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675 (2006)[1] and 19 C.F.R. § 351.213(b), Commerce published notice of an opportunity to request administrative review for exporters or producers covered by the antidumping duty order for pure magnesium from the People's Republic of China ("PRC") during the period of review from May 1, 2006, through April 30, 2007 (the "POR"). See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 72 Fed.Reg. 23,796 (Dep't Commerce May 1, 2007). Pursuant to that announcement, both TMI and Economic Consulting Services, LLC ("ECS"), an agent of USM, requested review of TMI's exports. See PR 2.[2] Plaintiff also asked that the review be deferred for one year and consolidated with the next administrative review ("TMI's deferral request"). See PR 3.
On June 29, 2007, the Department initiated administrative review with respect to another respondent, Shanxi Datuhe Coke & Chemicals Co., Ltd., ("Datuhe") and, in the same notice, granted TMI's deferral request.[3]See Initiation of Antidumping and Countervailing Duty Administrative Reviews, Request for Revocation in Part and Deferral of Administrative Review, 72 Fed.Reg. 35,690 (Dep't Commerce June 29, 2007). However, several months later, *1328 the Department proceeded to initiate administrative review with respect to TMI. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 73 Fed.Reg. 4,829 (Dep't Commerce Jan. 28, 2008).[4] On June 9, 2008, the Department published its preliminary determination. See Pure Magnesium from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 73 Fed.Reg. 32,549 (Dep't Commerce June 9, 2008) ("Preliminary Results"). Later that year, Commerce issued the Final Results, incorporating by reference an internal issues and decisions memorandum ("Decision Mem."). See PR 119.
This consolidated action ensued. In the meantime, Defendant sought leave of the Court to purportedly correct ministerial errors affecting TMI's dumping margin, which was denied because of the Department's failure to adequately prove that the corrections it intended to effect were in fact "ministerial". Notwithstanding USM's June 4, 2009, motion for the Court's reconsideration, the Court conclusively determined that the Department's acts the Final Results were intentional.
JURISDICTION & STANDARD OF REVIEW
The Court exercises jurisdiction under 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(B)(iii). The Court will uphold Commerce's determination unless "unsupported by substantial evidence on the record, or otherwise not in accordance with law." § 1516a (b)(1)(B)(i). This standard requires that Commerce thoroughly examine the record and "articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n of the U.S., Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation omitted). Substantial evidence is "more than a mere scintilla." Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). It means "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Longkou Haimeng Mach. Co. v. United States, 33 CIT ___, 617 F.Supp.2d 1363, 1366 (2009) (quoting Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003)).
DISCUSSION
A. Initiation of Administrative Review
In accordance with 19 C.F.R. § 351.213(c),[5] TMI requested a one year postponement of its administrative review, serving its deferral request on the Department and on USM's legal counsel of the previous review, King & Spalding, LLP. See PR 3. Commerce granted TMI's deferral request, noting that it received no timely objections. See 72 Fed.Reg. at 35,690, 92. However, shortly thereafter, *1329 ECS wrote a letter protesting the fact that it was not served with TMI's deferral request and asking Commerce to permit an objection out of time. See PR 6. Once the objection was filed, Commerce granted ECS the extension and initiated review of TMI, effectively rescinding its previous postponement of TMI's administrative review. See PR 17; Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request For Revocation in Part, 72 Fed.Reg. 4,829 (Dep't Commerce Jan. 28, 2008).
TMI urges that it satisfied the regulatory directive to serve the deferral request "on the petitioner"[6] when it completed service on King & Spalding. Plaintiff further maintains that serving ECS would have been improper since ECS engaged in the unauthorized practice of law by filing documents containing legal arguments before Commerce. See TMI's Br. at 15. Additionally, TMI was aware that King & Spalding was USM's counsel in the previous administrative review. Since communication through a party's attorney is mandated when a licensed attorney knows that the other party is represented by counsel, TMI claims that serving ECS would have risked an ethical breach. See id. at 14-19. TMI also stresses that Commerce's regulations do not require service on more than one representative of the petitioner, nor had the Department issued a service list at that time. See id. at 14. Further, Plaintiff avers that it had "no certain knowledge" that USM had any other representative. Id.
Lastly, TMI maintains that it was reasonably entitled to rely on Commerce's original determination, duly published in the Federal Register. Prior to revoking that deferral, claims Plaintiff, the Department was obligated to provide notice and an opportunity to comment, without which TMI was unduly burdened and deprived of its due process rights. See id. at 21. Considering the sheer volume of information that had to be processed within the constraints of the statute of limitations, TMI asserts that it was unprepared to participate in an administrative review, thus suffering substantial injury. See id. at 20-25.
While TMI's claims may be valid, they are rendered moot. 28 U.S.C. § 2637(d) provides that "the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies." By failing to raise this issue at the administrative level TMI has foreclosed an avenue of possible relief and precluded review at this forum. Although the decision to apply exhaustion principles in trade cases is not mandatory, this Court "generally takes a strict view of the requirement that parties exhaust their administrative remedies before the Department of Commerce in trade cases." Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed.Cir.2007); See also Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1356 n. 17 (Fed.Cir.2006). Commerce's regulations augment the guidance of the pertinent statute and case law, unequivocally requiring TMI to raise these arguments administratively. See 19 C.F.R. § 351.309(c)(2) ("[t]he case brief must present all arguments that continue in the submitter's view to be relevant to the Secretary's final determination . . . including any arguments presented before the date of publication of the preliminary determination").
TMI does not dispute that it failed to raise this issue to the agency. Rather, *1330 TMI contends that its claim fell outside the parameters of section 351.309(c)(2). Since the administrative review was already initiated, TMI reasons that its deferral request was irrelevant to the Department's final determination of the antidumping duty rate. See TMI's Reply at 9. Plaintiff states "it is clear that Commerce had made a decision granting an extension of time and rescinded the deferral, which matter could not be remedied administratively" and "[t]he facts of the record make it clear that Commerce would not change its position in the final results as the review had, in fact, already been conducted." Id. at 7.
Futility is indeed an exception to the exhaustion doctrine. See Gerber Food (Yunnan) Co. v. United States, 33 CIT ___, ___, 601 F.Supp.2d 1370, 1381 (2009). This exception, however, is a narrow one. An inadequate administrative remedy is where the agency is incapable of providing relief. See Statistical Phone Philly v. NYNEX Corp., 116 F.Supp.2d 468, 480 (2000). The mere fact that an adverse decision may have been likely does not excuse a party from satisfying statutory or regulatory requirements to exhaust administrative remedies. See Commc'ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 433 (D.C.Cir.1994).
Plaintiff's argument is not compelling. TMI fails to cite authority for the proposition that Commerce cannot overrule its own decision, once made. Plaintiff assumed that raising its contentions to Commerce would have been pointless, however it is not plainly obvious that the Department would not have been amenable to TMI's deferral request claims. It is also inconsistent for Plaintiff to assert that invoking this issue before the Department would have been irrelevant to Commerce's final determination and then proceed to petition this Court to invalidate these same Final Results. The fact that Commerce was the agency that initiated TMI's administrative review supports addressing related arguments directly to the decision making body. Lastly, TMI deprived Commerce an opportunity to reconsider the matter and state the reasoning for its determination. See Unemployment Comp. Comm'n of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L.Ed. 136 (1946); See also Gerber Food, 601 F.Supp.2d at 1379. The Department could have set forth its position in a detailed manner that would facilitate judicial review. As a result, the Court is placed in the position of expending judicial resources for a dispute that might have been resolved earlier.
It would not have been futile for Plaintiff to have raised its claim regarding deferral of administrative review to Commerce. Plaintiff did not exhaust its administrative remedies nor does an exception apply on these facts. In an antidumping case, where "`Congress has prescribed a clear, step by step process for a claimant to follow, . . . the failure to do so precludes [the claimant] from obtaining review of that issue in the Court of International Trade.'" Ta Chen Stainless Steel Pipe, Ltd. v. United States, 28 CIT 627, 645, 342 F.Supp.2d 1191, 1206 (2004) (quoting JCM, Ltd. v. United States, 210 F.3d 1357, 1359 (Fed.Cir.2000)). Accordingly, the Court is precluded from substantively addressing TMI's claim that Commerce erroneously initiated administrative review.
B. Calculation of Normal Value
Ordinarily, normal value is the price at which the subject merchandise is sold in the exporting country. However, nations operating under non market economy ("NME") principles invalidate the Department's normal methodologies for price comparisons because of governmental control. See Preliminary Results at 32,553. *1331 Thus, Commerce constructs surrogate values from the factors of production that go into producing the merchandise and then extrapolates normal value from that information. See 19 U.S.C. §§ 1677b(c)(1)(B), (3); Dorbest Ltd. v. United States, 30 CIT 1671, 1678, 462 F.Supp.2d 1262, 1268 (2006).
Valuation of the factors of production must be based "on the best available information" of values prevailing in a surrogate country that the Department finds is both economically comparable to the NME country in question and a significant producer of the merchandise in question. See §§ 1677b(c)(1), (4); See also Dorbest, 30 CIT at 1675, 462 F.Supp.2d at 1268 ("[t]he term `best available' is one of comparison, i.e., the statute requires Commerce to select, from the information before it, the best data for calculating an accurate dumping margin"). Commerce's regulations specify that it normally uses publicly available information. See § 351.408(c)(4). Beyond this preference, the Department's general practice is to consider the quality, specificity, and contemporaneity of the financial statement, as well as whether its overall experience is representative of the respondent's operation. See Dorbest, 30 CIT at 1716, 462 F.Supp.2d at 1301.
Since PRC was determined by Commerce to be a NME, the Department chose India as the surrogate country. See Final Results at 76,337. Thus, Commerce's task was to assess the "prices or costs" for the factors of production of pure magnesium in India in an attempt to construct a hypothetical market value of that product in the PRC. See Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 1377-78 (Fed.Cir.1999).
1. Valuation of Dolomite
Commerce determined that it would base the surrogate values, in general, on contemporaneous import data from the World Trade Atlas® ("WTA").[7]See Preliminary Results at 32,554. Despite that decision, the Department concluded that the WTA was not the best available information to value dolomite, a raw material consumed in the production of the subject merchandise. This determination was based on its finding that "internationally traded dolomite is likely to be a different quality product than the dolomite used for magnesium production." Decision Mem. at cmt. 1. Specifically, Commerce concluded that "internationally traded dolomite is likely to be [a] high end high quality product."[8]Id. Accordingly, Commerce based the surrogate value on the average purchase price of dolomite reflected in the financial statements of two domestic Indian companies. See id.
Commerce reached its decision, in part, on the preceding administrative review's finding that the volume of dolomite imports is minuscule compared to Indian domestic production, in addition to the finding *1332 that the WTA data represents a very small quantity compared to other values on record in that proceeding. See Pure Magnesium from the People's Republic of China: Final Results of 2004 2005 Antidumping Duty Administrative Review, 71 Fed. Reg. 61,019 (Dep't Commerce Oct. 17, 2006), Issues & Decision Memorandum at cmt. 1 ("2004 2005 Review"). USM asserts that the Department's reliance on the 2004 2005 Review are misguided since circumstances of this review differ significantly. See USM's Br. at 22. First, Defendant Intervenor contends that there has been a substantial increase in trade volume. USM specifically points to the fact that dolomite imports during the 2004 2005 Review were only 53 Metric Tons ("MT") whereas the volume of imports during the POR totaled 12,603 MT. See id. at 24, 26. This larger quantity of traded dolomite is more representative of all types of dolomite and suggests that the WTA may include some low value dolomite. See id. at 24 25, 28. Additionally, USM claims that this data undermines the Department's overall conclusion that dolomite is not frequently traded on the international market.
Commerce has an obligation to evaluate the relative accuracy of domestic and import data in valuing factors of production. See Yantai Oriental Juice Co. v. United States, 26 CIT 605, 617, 2002 WL 1347018, *9 (2002). Commerce specifically addressed USM's claims, stating that a "significant increase in the trade volume since the previous review period fail to rebut the conclusion that we again derive from the [evidence]." Decision Mem. at cmt. 1. Despite an increase in volume, Commerce reasonably determined that generally low import statistics of dolomite indicate that India's requirements are satisfied domestically. Moreover, the Department found TMI's dolomite consumption ratio to be approximately the same as during the 2004-2005 Review, "indicating that TMI continued to use low value high bulk dolomite to produce pure magnesium." Id. These conclusions comport with court precedent establishing that using import data to value factors of production may not be reasonable when it is unlikely that the domestic industry would use imports and where domestic data is available. Dorbest, 30 CIT at 1688-89, 462 F.Supp.2d at 1278-79.
Defendant Intervenor attempts to utilize values from the Infodrive data on the record to corroborate the WTA and establish that it includes low value product. USM asserts that the dolomite, which TMI described as "crude uncalcined dolomite block," is classified under 2518.1000, HTS, as "dolomite not calcined or sintered." See USM's Br. at 24. According to USM, the Infodrive data further identifies 2518.1000 as "Dolomite Block(s)" or "Dolomite in Bulk," thus supporting the imports as consisting of crude, unprocessed dolomite. See USM's Br. at 25. Therefore, Defendant Intervenor infers, contrary to the Department's conclusion, that some of the dolomite shipped internationally in blocks or bulk are comprised of low value.
However, with regard to this argument, Commerce found that "Petitioner has not put forth any evidence to support its contention that dolomite shipped in `bulk' or `blocks' internationally are of high bulk, low value commodity product." Decision Mem. at cmt. 1. Although this Court has held that Infodrive India data can be "illuminating as to the nature of the product" being valued within a specific tariff subheading, Dorbest, 30 CIT at 1698, 462 F.Supp.2d at 1286, the Department specifically stated that:
We examined the Infodrive data on the record and found that the Infodrive data only describes the physical characteristics of the imported dolomite as "dolomite in bulk" and "dolomite blocks", and *1333 there is no record evidence to conclude that dolomite shipped in "bulk" or "blocks" is a low value commodity. Thus, we are not pursuaded [sic] that the data from Infodrive establishes that the shipments in the WTA data are of low value commodity product.
Decision Mem. at cmt. 1. Therefore, Commerce found that USM's argument fell short of establishing the necessary link that dolomite shipped in bulk is a low value commodity, thus represented adequately by the WTA data. The weight that the Department should afford the Infodrive data is a factual question, which is most appropriate for the technical expertise of the Department. See Dorbest, 30 CIT at 1676, 462 F.Supp.2d at 1268. The Court defers to the determination of the Department as the "master of antidumping law." Thai Pineapple Pub. Co. v. United States, 187 F.3d 1362, 1365 (Fed.Cir.1999).
Finally, USM asserts that the Department deviated from its general preference to use WTA data. See USM's Br. at 23. Defendant Intervenor seems to conclude that since the WTA import data generally satisfies Commerce's established preferences governing the selection of data sources, it follows that the Department prefers to use it, unless the WTA data is unreliable or distorted. See id. USM relies on Dorbest, in which the Department rejected WTA data as the best available information opting instead to use Monthly Statistics of Foreign Trade in India, which was publicly available, contemporaneous and had been used in previous investigations but also included all Indian imports. Dorbest, 30 CIT at 1687, 462 F.Supp.2d at 1277. USM interprets Dorbest as illustrating Commerce's preference in situations where it is faced with a choice between using data that fails to capture all of the inputs used by the NME producer and between data that broadly comprises all of the producer's inputs but includes some inapplicable data, the Department will choose the overinclusive data. See USM's Br. at 23 (citing Dorbest, 30 CIT at 1687, 462 F.Supp.2d at 1277).
It may be true that Commerce's practice is to use WTA data when selecting among import data sources. However, when the Department has a choice between domestic data and import statistics, Commerce's preference is to use domestic data. See generally Hebei Metals & Minerals Imp. & Exp. Corp. v. United States, 29 CIT 288, 299, 366 F.Supp.2d 1264, 1273 (2005) ("A domestic price is preferred for the calculation of surrogate values by prior practice, policy, and logic"); Rhodia Inc. v. United States, 25 CIT 1278, 1287, 185 F.Supp.2d 1343, 1352 (2001) ("Commerce has a stated preference for the use of the domestic price over the import price, all else being equal"). Further, a mere preference can never overcome Commerce's paramount obligation under the statute to use the best available information to calculate dumping margins as accurately as possible. See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990). A surrogate value must be "as representative of the situation in the NME country as is feasible." Nation Ford Chem. Co. v. United States, 21 CIT 1371, 1375, 985 F.Supp. 133, 137 (1997).
Here, the Department attempted to capture TMI's experience by carefully considering the particular facts of the industry and made a reasoned determination that the WTA data did not represent the best information based on its conclusion that TMI's dolomite is not traded internationally. Commerce examined trade publications in order to determine the type of dolomite traded internationally; analyzed the prices paid by Indian producers for dolomite compared with the dolomite average unit value in the WTA data; employed Infodrive data at USM's request to further clarify the dolomite included in the WTA *1334 data set; and compared consumption levels for TMI from the prior period of review against the POR at issue. Additionally, the Department considered its prior precedent. None of this is contrary to any preference for WTA data by Commerce. The Court also notes that Defendant Intervenor complains of the Department's failure to use WTA data without affirmatively alleging that there are flaws in the domestic financial statement employed or demonstrating that the WTA data will provide a more accurate picture, comparatively speaking. Commerce persuasively rejected USM's contentions.
The Court's role is not to "evaluate whether the information Commerce used was the best available, but rather whether a reasonable mind could conclude that Commerce chose the best available information." Goldlink Indus. Co. v. United States, 30 CIT 616, 619, 431 F.Supp.2d 1323, 1326 (2006). As the finder of fact, the Department had discretion to choose between these data sets and its conclusion does not violate the boundaries set by section 1677b.
2. Valuation of TMI's Magnesium Byproduct
Commerce's practice is to offset the normal value calculation for a respondent whose manufacturing process generates a byproduct that it either sells or reuses in the production of the subject merchandise. See 19 C.F.R. § 351.401. The Department ultimately granted such a credit for Plaintiff's byproduct, classifying it under 8104.11, HTS, "Magnesium and articles thereof, including waste and scrap: Unwrought magnesium: Containing at least 99.8 percent by weight of magnesium."[9] See Final Results at 76,337; PR 121 at attach. 1; PR 122 at attach. I(i). USM challenges this classification, contending instead that TMI's production process generates a low value waste residue that is best classified under 2620.40, HTS, as "Slag, ash and residues (other than from the manufacture of iron or steel), containing arsenic, metals or their compounds: Containing mainly aluminum." Alternatively, USM submits that 8104.20 would have been a more appropriate choice than 8104.11.[10]See USM's Reply at 1-2. Subheading 8104.20, HTS, encompasses "Magnesium and articles thereof, including waste and scrap: Waste and scrap."[11]See PR 82 at attach. 1; PR 84 at attach. 1.
USM posits that different production methods of creating the subject merchandise generate scrap with differing levels of magnesium, consequently affecting their classification. See USM's Br. at 14. During the POR, TMI had [Redacted]. See CR 6 at D 2, D 3. TMI's [Redacted]. See *1335 id. at D 3, D 4, Ex. D1 A. [Redacted]. See PR 34 at D 3.[Redacted]. See CR 6 at D 3; D 4; Ex. D 1A. TMI [Redacted]. See CR 6 at D 3, D 4, Exs. D1 B, D 11; CR 4 at 18.[Redacted]. See USM's Br. at 14 15; CR 6 at D 3; Ex. D 1B. [Redacted]. See CR 12 at 16; CR 6 at D 3; Ex. D 1B. The parties here do not contest that [Redacted]. See PR 122; Decision Mem. at cmt. 3.
The [Redacted] fail to support the Department's ultimate determination assigning the same HTS provision "regardless of whether the scrap constituted a purchased input or by product." PR 121 at 2-3. Commerce stated in its analysis memorandum of TMI for the Final Results that:
In the Preliminary Results, we valued magnesium scrap using the Indian WTA data for HTS 8104[.]20. We valued magnesium scrap using HTS 8104[.]20 regardless of whether the scrap constituted a purchased input or by product. However, after the Preliminary Results, both Petitioner and TMI argued that HTS 8104[.]11, unwrought magnesium containing 99.8 percent magnesium, more closely reflects the type of magnesium scrap used in the production of pure magnesium. Thus, we valued magnesium scrap using this HTS number from the WTA for the [POR].
Id. (footnotes omitted). The Department thus determined as a factual matter that the value for TMI's [Redacted].
USM claims that [Redacted] byproduct output is a sludge comprised of flux and impurities containing only about ten percent magnesium, unlike the [Redacted]. In support of this assertion, USM submitted expert testimony in two affidavits. See PR 97 at Exs. 1 and 2. The first, Cameron Tissington, USM's Vice President of Sales and Marketing, explains the low market value for magnesium waste byproduct and the specific experience of magnesium producers from the PRC. According to Tissington, [Redacted]. See PR 97 at Ex. 2. Tissington also concludes that the residue created during the pidgeon process has too low a value to be classified under magnesium waste and scrap. See PR 97 at Ex. 2. USM's other affidavit was by Dr. Ramaswami Neelameggham, Technical Development Scientist at USM and a professional metallurgist with over thirty years experience. Dr. Neelameggham does not consider the residue produced by the pidgeon process to be magnesium scrap, "as it contains too little magnesium." PR 97 at Ex. 1. Rather, "it is in the nature of a slag." Id.
USM proffers that 2620.40, HTS is the most appropriate subheading to classify TMI's magnesium byproduct. According to USM, the propriety of 2620.40, HTS, is supported by Commerce's consistent past finding that aluminum products are comparable to magnesium. See USM's Br. at 17. Record evidence establishes that Commerce considered and rejected Heading 2620 with respect to respondent Datuhe's magnesium byproduct, concluding that Heading 8104 was more exact. Commerce stated, in pertinent part:
there is no record evidence which indicates that the values for aluminum residue, zinc ash, or brass dross are more specific to magnesium residue than HTS [8104.20.00] which covers "Magnesium Waste and Scrap." Unlike the values of aluminum residue, zinc ash and brass dross proposed as surrogate values, the value for "Magnesium Waste and Scrap" relates to magnesium and not to a different material.
Decision Mem. at cmt. 8.[12] Thus, the Department determined that the provisions *1336 relating directly to magnesium were generally more specific than those of Heading 2620 and accordingly were the best information available to value Datuhe's magnesium byproduct. USM contends that [Redacted] to produce the subject merchandise, consume the same raw material inputs, and generate the same scrap byproducts. USM's Br. at 21 22; USM's Reply at 5-6. However, it is not clear, based on record information, that Datuhe and TMI's [Redacted] used the same production process thus the Court cannot utilize the Department's reasoning.
Next, USM asserts that the Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") precludes classification of TMI's magnesium byproduct under Heading 8104. See USM's Br. at 14-16. EN 81.04 specifically excludes "slag, ash and residues from the manufacture of magnesium (heading 26.20)." Defendant Intervenor asserts that, as a matter of law, Commerce must credit "the unambiguous text of relevant explanatory notes absent persuasive reasons to disregard it" and accordingly classify TMI's magnesium byproduct under 2620.40. USM's Reply at 4.
In contrast to Customs classification cases where determining the proper classification is paramount, antidumping cases involve the HTS merely to approximate the cost of a factor of production. See Dorbest, 30 CIT at 1725, 462 F.Supp.2d at 1308. Further, it has been established that ENs are only persuasive and not binding authority. See, e.g., Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994); Michael Simon Design, Inc. v. United States, 501 F.3d 1303, 1307 (Fed.Cir.2007). On the other hand, it is well settled that "substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Hynix Semiconductor Inc. v. United States, 29 CIT 995, 999, 391 F.Supp.2d 1337, 1342 (2005) (internal quotation omitted). Commerce's analysis does not address USM's arguments regarding the ENs, yet an examination of the ENs accompanying the subheadings appear to support Defendant Intervenor's argument. Furthermore, such an analysis would buttress Commerce's statutory duty to use the best available information.
The antidumping statute does not prescribe a method for calculating byproduct offsets instead leaving the decision to the technical expertise of the Department. Commerce's goal is to "acquire an accurate reading of the actual costs of a company operating in a state controlled economy." Tehnoimportexport v. United States, 15 CIT 250, 254, 766 F.Supp. 1169, 1174 (1991). Thus, the Department is prevented from using information that may cause inaccuracies or distortions. In reviewing the record and arguments for both sides, the Court finds that the administrative record does not support such a high value for the magnesium byproduct at issue. For the Department, the decision not to differentiate between the magnesium input and byproduct was not reasonable because it did not first establish an adequate connection between them. The Department assumed, rather than demonstrated that the input and byproduct were identical. In the absence of such a finding, Commerce has no basis to conclude that Heading 8104 constituted the best available information on the record. This issue is accordingly remanded to the Department in order for it to further explain its reasoning. Commerce failed to adequately explain its decision to value the magnesium byproduct at issue here under HTS classification 8104.11, as unwrought magnesium containing at least 99.8% by weight. In light of the above analysis, the Court holds that Commerce's findings were not reached by reasoned decision making supported by a stated connection between the facts found and the choice made.
*1337 3. Surrogate Financial Ratios
To capture indirect costs and recreate the full experience of the respondent, section 1677b(c)(1) directs Commerce to supplement the factors of production with "an amount for general expenses and profit plus . . . other expenses." The value that Commerce assigns to these indirect costs is known as the surrogate financial ratios, which, put simply, reflect a percentage of overhead; selling, general and administrative expenses ("SG & A"); and profit expenses. See Dorbest, 30 CIT at 1715-16 n. 36, 462 F.Supp.2d at 1301 n. 36.
Prior to the Preliminary Results, the parties submitted financial statements of four companies, including aluminum producers Madras Aluminum Co. Ltd. ("Malco"), Hindalco Industries Ltd. ("Hindalco"), National Aluminum Co. Ltd. ("Nalco"), and Sterlite Industries (India) Ltd. ("Sterlite"). See Preliminary Results at 32,555. Before the Final Results, an additional twelve were placed on the record, including Hindustan Zinc, Ltd., ("Hindustan"). See Decision Mem. at cmt. 6. Commerce evaluated all sixteen statements but ultimately determined that Malco's financial statement constituted the best available information upon which to base the financial ratios because it found that Malco is profitable, has contemporaneous data, does not use countervailable subsidy programs, and produces a comparable product. See id. at cmt. 6(B).
Commerce rejected the financial statement of zinc producer Hindustan although it has also previously held zinc to be comparable to magnesium.[13] However, this finding was not the sole support for the Department's conclusion since the Department "still would not use the [zinc financial statements] for [various] reasons." See Decision Mem. at cmt. 6(E). In the case of Hindustan, the Department disfavored the fact that its financial statement reported no raw material consumption. See id. USM counters that, logically speaking, it is impossible to produce primary zinc without consuming any raw materials and Hindustan's raw material costs are included within its reported mining expenses. This is because Hindustan mines, rather than purchases, the raw material inputs used in its manufacture of zinc. See USM's Br. at 35. Thus, according to USM, Hindustan's financial statement, read closely, does not contain the flaws alleged by Commerce.
USM further contends that Commerce contradicts Wuhan Bee Healthy Co. v. United States, 31 CIT 1182, 2007 WL 2071537 (2007), by eliminating Hindustan's financial statement while accepting Malco's. See USM's Reply at 12-13. In Wuhan Bee Healthy, a surrogate producer bought raw honey from members of its cooperative before processing and selling the product. Although zero was listed in the surrogate producer's financial statement, Commerce went beyond the reported line item to formulate a raw material cost. Defendant Intervenor finds Commerce's decision arbitrary because of the Department's willingness to construct a line item in Wuhan Bee Healthy yet was unwilling to do so for Hindustan. See id.
USM becomes more frustrated given Commerce's inconsistent treatment of integrated operations. Malco generates some of its own energy, which in turn caused its financial statement to reflect lower costs. USM asserts that nothing distinguishes Hindustan's mining of raw materials from Malco's report of energy generation: the financial statement of both companies reflect integrated operations. See USM's *1338 Br. at 36. As such, USM maintains that Commerce's elimination of Hindustan was discordant with Commerce's acceptance of Malco's financial statement.
The Court disagrees. The Department properly used its standard methodology to consider both the line item of raw material cost and integrated operations. Since Hindustan's financial statement "did not otherwise explain how it accounted for its direct material consumption," Commerce could not assess the "validity of its material consumption during the POR." Decision Mem. at cmt. 6(E). The fact that Hindustan mines, rather than purchases, raw materials does not fully explain why Hindustan listed zero consumption. It would be unreasonable for Commerce to construct a value for Hindustan's raw material consumption. Moreover, in direct contrast to Defendant Intervenor's assertion, the very cases that USM cite affirm the Department's practice to accept financial statement information on an "as is" basis. On its face, Hindustan's financial statement reported zero whereas Malco's statement contained a value, albeit a below market rate. "In situations in which a statute does not compel a single understanding . . . `our duty is not to weigh the wisdom of, or to resolve any struggle between, competing views of the public interest, but rather to respect legitimate policy choices made by the agency in interpreting and applying the statute.'" Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442, 1446 (Fed.Cir. 1994) (citing Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 665 (Fed.Cir.1992)). Commerce was consistent in its policy not to deconstruct financial statements.
However, the Court reaches a different conclusion with respect to the Department's analysis of the Malco financial statement. Malco's statement had just a nine month closing rather than the usual twelve month period. See USM's Br. at 30. USM asserts that using an abbreviated closing period is inherently unreliable and a full year of data would be most representative of a company's full production experience. See USM's Reply at 13-14. Defendant Intervenor cites to both agency rulings and Court decisions acknowledging a preference to use a full year of operations, which the Department subsequently counters by arguing that each case acknowledges Commerce's deviation from standard practice would be reasonable where the evidence compels such a determination.[14]See USM's Br. at 30-31; Def's Resp. at 25.
The sole exception of Commerce employing a financial statement covering less than a year involved the same nine month Malco statement at issue in this case. See Magnesium Metal from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 73 Fed.Reg. 40,293 (Dep't Commerce July 14, 2008). Otherwise, no other precedent demonstrates that a nine month period is adequate. Although the Department *1339 does not have an explicit preference to use a full year of financial statements, it has certainly been its practice. See Furfuryl Alcohol, 60 Fed.Reg. at 22,560-61 ("[T]he Department generally looks to a full year period in computing [SG & A expenses for costs of production and constructed value]"). Commerce must apply its criteria in a consistent and uniform manner, otherwise its selection could become arbitrary and capricious. See Dorbest, 30 CIT at 1716, 462 F.Supp.2d at 1301.
USM points to several indications of possible distortion in Malco's financial statement. First, Malco experiences erratic production levels throughout the year for its products. For example, Malco's aluminum ingot production was over four hundred percent greater than the prior twelve month period. See USM's Br. at 32. Further, Malco commissioned a dry scrubbing unit during the nine month period, causing a disruption in production operations that may have affected its profits. See id. at 33. Finally, the cost of raw materials tend to fluctuate, and many expenses, such as insurance and bonus payments, are incurred sporadically throughout the fiscal year. For example, the management salaries in Malco's truncated statement were only half of the amount incurred in the prior twelve month period. See id.
Commerce determined that the nine month closing remedied any irregularities because Malco made "year end adjustments," specifically intended to address such distortions. Commerce explicitly reasoned:
[W]e disagree with Petitioner's argument that MALCO's financial statements are incomplete. According to the information on page 55 of MALCO's audited financial statements, MALCO changed its accounting year from July to June to April to March in fiscal year 2007-2008. Therefore, MALCO's 2006-2007 fiscal year included the nine month period of July 2006 to March 2007, after which MALCO had a nine month closing. As a result, these audited financial statements include all the appropriate year end adjustments even though they cover a nine month period. Therefore, we are satisfied that MALCO's financial statements are complete.
Decision Mem. at cmt. 6(B).[15] However, such "year end adjustments" do not sufficiently address distortions, nor do they account for events that occurred during the missing three month period. See USM's Reply at 13. USM asserts that "year end adjustments" are a means for accountants to identify and match revenues and expenses for the period incurred and to determine a company's assets and liabilities on a specific date. See id. Malco's financial statement itself, in the Notes on Accounts section, specifically states that, due to the nine month closing, "the figures are not comparable with those of the previous year." PR 64 at Ex. 10. Commerce "cannot use a surrogate value if it is also distorted, otherwise defeating the purpose of using a surrogate value rather than the actual export value." Goldlink Indus., 30 CIT at 629, 431 F.Supp.2d at 1334-35.
Commerce's conclusion that Malco's audited financial statement reflects all the appropriate year end adjustments is speculative. The Department makes a leap in *1340 logic of why adjusting the fiscal year dates from July to June and April to March, causing an abbreviated accounting year of nine months, resulted in the appropriate year end adjustments. A declaration that accounting year 2006 2007 was considered closed after nine months does not indicate that it was a representative sample of the sporadic costs that emerge during different times of a fiscal year. Nowhere does Commerce suggest that, for accounting purposes, a fiscal year can be less than a typical twelve month annual time period.
Considering Malco's allegedly flawed financial statements, Commerce's rejection of aluminum producers Nalco and Hindalco as surrogates is equally confounding to USM. See USM's Br. at 33-34. Commerce eliminated these financial statements due to its policy not to "rely on financial statements where there is evidence that the company received countervailable subsidies" and there exists "other sufficient reliable and representative data on the record for purposes of calculating the surrogate financial ratios." Decision Mem. at cmt. 6(C). Although the Department has repeatedly held that financial statements of a company that is receiving subsidies does not constitute the best available information, when the circumstances warrant, Commerce has employed financial statements exhibiting receipt of subsidies. See id. In such situations, Commerce "must explain its determination that [the] financial ratios are not distorted by the subsidies it received." Goldlink Indus., 30 CIT at 629, 431 F.Supp.2d at 1334-35. The subsidization of the two producers was de minimis yet they were only afforded brief consideration because of Malco. See Oral Arg. Tr. at 31.
The Court acknowledges that its review is limited to sustaining Commerce if one could reasonably conclude that Commerce chose the best available information, even if the Court would have chosen other data. However, there is no clear indication that Malco's flawed financial statement is significantly better than the rejected surrogates. Commerce failed to meet its obligation to satisfactorily explain its decision, c Thus, based on the arguments provided here, a reasonable mind would be unable to conclude that the Department chose the best available information and that Commerce's decision was supported by substantial evidence. The Court remands this issue to Commerce to further explain its determination in detail. In light of this remand to Commerce regarding the surrogate financial statements used to derive the financial ratios, the Court reserves judgment regarding subsidiary aspects of Commerce's calculation of the financial ratios since the Department's re examination of the financial statements may affect this outcome.
C. Combination Rate
Since country wide cash deposit rates in NMEs can vary considerably from separate company rates, Commerce attempted to prevent circumvention of high cash deposit rates by firms diverting exports through intermediaries with lower rates. A combination rate involves specific pairs of exporters and producers in situations where a specific producer supplied the merchandise which was then exported by the firm in question during the POR. See 19 C.F.R. § 351.107(c). TMI was assessed a separate cash deposit rate of 0.63%, a significant difference from the country wide PRC rate of 108.26%. See Final Results at 76,337.
USM contends that Commerce should have assigned a combination cash deposit rate for these circumstances because [Redacted], an action termed "funneling."[16] USM claims that [Redacted] *1341 created the need for a combination cash deposit rate. See USM's Br. at 37.
Commerce generally refrains from issuing combination rates for administrative reviews. See Decision Mem. at cmt. 10. The preamble to the Department's regulations expresses that "if sales to the United States are made through an NME trading company, we assign a non combination rate to the trading company." Id. Further, the Department has discretion in administering combination rates. See § 351.107(b) ("the Secretary may establish a `combination' cash deposit rate" (emphasis added)).
USM cites to Final Results of Antidumping Duty Administrative Review: Certain In Shell Raw Pistachios From Iran, 70 Fed.Reg. 7,470 (Dep't Commerce Feb. 14, 2005) ("Pistachios From Iran"), the sole example where Commerce issued a combination rate in an administrative review. However, Commerce explicitly distinguishes Pistachios From Iran and the facts of the case at bar. First, the exporter in Pistachios From Iran sold its product exclusively to the United States whereas no record evidence establishes that Plaintiff does so. See Decision Mem. at cmt. 10. Second, TMI "is a well established exporter that has participated in previous reviews" unlike the exporter in Pistachios From Iran, who, was participating in a new shipper review. Id. These departures were significant enough in the eyes of the Department to forego a combination rate.
USM submits that the Department's limited use of combination rates is arbitrary, since no clear rationale distinguishes Commerce's refusal to employ them during administrative reviews as opposed to new shipper reviews. See USM's Reply 14-15. However, Commerce has published a policy bulletin regarding combination rates in new shipper reviews, as well as one for combination rates in new antidumping investigations. See Policy Bulletin 03.2 (Dep't Commerce Mar. 4, 2003); Policy Bulletin 05.1 (Dep't Commerce Apr. 5, 2005). The Department's policy is paramount because no law has been established directly addressing the procedure for issuing combination rates or limiting the agency's power. Commerce has broad discretion to determine when and how to administer combination rates. See U.S. Magnesium, LLC v. United States, 31 CIT 988, 992 (2007). We must defer to Commerce's interpretation "based upon the recognition that `Commerce's special expertise in administering the antidumping law entitles its decisions to deference from the courts.'" Allegheny Ludlum Corp. v. United States, 27 CIT 1034, 1040, 276 F.Supp.2d 1344, 1350 (2003) (citing Ta Chen Stainless Steel Pipe Inc. v. United States, 298 F.3d 1330, 1335 (Fed. Cir.2002)).
USM requests a preemptive measure on the chance an antidumping violation will be committed, based solely on hearsay at this point in time. The only indication substantiating USM's argument is [Redacted]. While it is clear that [Redacted], no evidence of actual funneling exists on the record. Unfortunately for USM, the Court's review of Commerce's determination is limited to the record of the underlying proceeding. See §§ 1516a(a)(2)(B)(iii), (b)(2)(A).
The Court cannot force Commerce to alter its combination rate policy for administrative reviews. Even if the Department were to broaden its application of combination rates in the future, the matter remains solely in the discretion of Commerce. See U.S. Magnesium, 31 CIT at 992; see also Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 65, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (holding that an agency can be compelled to act but a court cannot dictate what that action *1342 must be). The Court will not strong arm Commerce into rendering a premature decision, nor does it have the authority to declare agency policy.
In addition to its established practice of not administering combination rates, Commerce consistently applied its prior rulings as a benchmark to deem the combination rate unnecessary under these circumstances. See Decision Mem. at cmt. 10. Therefore, Commerce acted well within its authority. While particular circumstances may create the need for a combination rate, this discretion is completely within the purview of Commerce and is evaluated on a case by case basis. See Tung Mung Dev. Co. v. United States, 26 CIT 969, 979, 219 F.Supp.2d 1333, 1343 (2002).
The Court holds that Commerce acted within its authority when it did not issue a combination rate for TMI. USM has failed to prove that Commerce did not act in accordance with law and substantial evidence. Thus, the Court dismisses Defendant Intervenor's motion on this issue.
CONCLUSION
For the foregoing reasons, Commerce's final results of antidumping administrative review for pure magnesium from the PRC is affirmed in part and remanded in part.
NOTES
[1] Further citations to the Tariff Act of 1930 are to the relevant provisions of Title 19 U.S.C. Similarly, citations to the U.S.C. or C.F.R. are to the 2006 editions.
[2] Citations to the public record are designated "PR" and the confidential record "CR."
[3] Datuhe is not a party to this action.
[4] TMI sought to enjoin administrative review of its entries, invoking the CIT's residual jurisdiction under 28 U.S.C. § 1581(i). This Court denied TMI's claims as unripe for judicial review. See Tianjin Magnesium Int'l Co., v. United States, 32 CIT ___, 533 F.Supp.2d 1327 (2008).
[5] Section 351.213(c) provides:
The Secretary may defer the initiation of an administrative review, in whole or in part, for one year if:
(i) The request for administrative review is accompanied by a request that the Secretary defer the review, in whole or in part; and
(ii) None of the following persons objects to the deferral: the exporter or producer for which deferral is requested, an importer of subject merchandise of that exporter or producer, a domestic interested party and, in a countervailing duty proceeding, the foreign government.
[6] A party requesting administrative review "must serve a copy of the request . . . on each exporter or producer specified in the request and on the petitioner by the end of the anniversary month or within ten days of filing the request for review, whichever is later." 19 C.F.R. § 351.303(f)(3)(ii).
[7] The WTA is an online database tracking globally traded commodities. It 7 enables users to determine the value of a specific product and identify countries that the product is being imported from or exported to using all levels of the HTS. See http://www. gtis.com/english/GTIS-WTA.html (last visited Aug. 9, 2010).
[8] Commerce reasoned that (1) dolomite is generally a low-value high-bulk commodity, which does not normally lend itself to long transport; (2) dolomite that is traded internationally is likely to be in the high-end value-added range; (3) the WTA data set represents internationally traded dolomite values; therefore (4) the WTA primarily represents highend, value-added dolomite; (5) TMI's dolomite is a high-bulk low-value commodity product; thus (6) the type of dolomite used by TMI is unlikely to be shipped internationally; and (7) the WTA data set is unlikely to be representative of TMI's dolomite. See Decision Mem. at cmt. 1.
[9] "Unwrought" includes metal, whether or not refined, in the form of ingots, blocks and similar manufactured primary forms but does not cover rolled, cast or sintered forms which have been machined or processed otherwise than by simple trimming, scalping or descaling. See Section XV, Additional U.S. Note 1, HTS.
[10] Despite this Court unequivocally ruling on two occasions that Commerce intentionally valued TMI's magnesium byproduct under subheading 8104.11, HTS, USM insists that the Department made a ministerial error in the Final Results. See USM's Br. at 14 n. 17; USM's Reply at 1 n. 3. Based on this assumption, USM refers to 8104.20, HTS, as the classification that Commerce "intended to select for this factor." USM's Br. at 14 n. 17. The Court again rejects this belabored argument and proceeds to determine whether the Department's valuation of TMI's magnesium byproduct under 8104.11 is in accordance with law and supported by substantial evidence.
[11] The HTS defines "waste and scrap" as the results of the "manufacture or mechanical working of metals, and metal goods definitely not usable as such because of breakage, cutting-up, wear or other reasons." Section XV, Note 8(a), HTS.
[12] The Department erroneously referenced 8014.20.00 instead of HTS Subheading 8104.20.00.
[13] TMI agrees that Commerce correctly rejected Hindustan on the alternate ground that Hindustan is related to Sterlite, who received countervailable subsidies. See TMI's Resp. at 25.
[14] See Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From Thailand, 60 Fed.Reg. 22,557, 22,560 (Dep't Commerce May 8, 1995) ("Furfuryl Alcohol") (the respondent failed to demonstrate why it should deviate from its normal practice of using annual financial data where the respondent attempted to report SG & A based on a six months instead of a twelve month period); Bethlehem Steel Corp. v. United States, 24 CIT 375, 383 (2000) (Commerce had discretion to use two years of financial statements where the POR covered substantially more than one year); Stainless Steel Sheet and Strip in Coils from Mexico; Final Results of Antidumping Duty Administrative Review, 74 Fed.Reg. 6,365 (Dep't Commerce Feb. 9, 2009), Issues & Decision Memorandum at cmt. 5 ("In certain instances, an unusual fact pattern may present itself where it may be appropriate to deviate from the Department's normal practice").
[15] Commerce cites Malco's financial statement to support this conclusion. See Decision Mem. at cmt. 6(B). However, the page Commerce refers to merely states the financial quarter results, publication dates and annual accounts, and states that "[Malco] has changed its accounting year from July-June to April-March from the financial year 2007-08 and hence for the present financial year 2006-07, the Company will have nine months' closing." PR 64 at Ex. 10.
[16] See CR 13 at Ex. 1 [Redacted].
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338 U.S. 411 (1949)
WILMETTE PARK DISTRICT
v.
CAMPBELL, COLLECTOR OF INTERNAL REVENUE.
No. 75.
Supreme Court of United States.
Argued November 15-16, 1949.
Decided December 12, 1949.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
*412 Henry J. Brandt argued the cause for petitioner. With him on the brief was Gilbert H. Hennessey, Jr. Edward R. Johnston was also of counsel.
Lee A. Jackson argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Helen Goodner and Melva M. Graney.
MR. JUSTICE CLARK delivered the opinion of the Court.
Section 1700 (a) (1) of the Internal Revenue Code, as amended, provides for the imposition, except as to certain classes of persons under circumstances not important here, of "A tax of 1 cent for each 10 cents or fraction thereof of the amount paid for admission to any place, including admission by season ticket or subscription."[1] Paragraph (2) of the subsection declares that the tax "shall be paid by the person paying for such admission." And § 1715 requires that "Every person receiving any payments for admission . . . subject to the tax imposed by section 1700 . . . shall collect the amount thereof from the person making such payments."
This suit, brought to recover penalties paid by petitioner for noncollection of federal admissions tax, presents two questions for determination: Whether § 1700 (a) is applicable to paid admittances to a bathing beach operated without purpose of gain by a local park district of Illinois; and, if the Code provision is to be so interpreted, *413 whether the imposition of admissions tax in connection with such state activity is within the constitutional power of Congress.
Petitioner is Wilmette Park District, a body politic and corporate located within the Village of Wilmette, Cook County, Illinois. Organized and administered pursuant to Illinois statutes, the District includes within its jurisdiction four park areas. The largest, Washington Park, extends for approximately three-fourths of a mile along Lake Michigan and was acquired partly by grant from the State of Illinois, partly by purchase, and partly by exercise of the power of eminent domain. At the north end of Washington Park, petitioner has operated a public bathing beach during the summer months for many years, under authority conferred by the Illinois Legislature. The beach has been used primarily by residents of the District, but also has been open to nonresidents.
Among the facilities which the District provided at the beach during the period under review were a bath house, automobile parking area, life-saving equipment, flood lighting, drinking fountains, showers, spectator benches, bicycle racks, first aid, and supplies. The operation and maintenance of the area and its various services were solely by the District, which employed the necessary personnel.
Petitioner charged all persons for admittance to the beach. Its charges were of two types: a daily fee of fifty cents on weekdays and one dollar on Saturdays, Sundays and holidays, for which no ticket was issued; and a flat rate for a season ticket which could be purchased on an individual or family basis. These charges were made to cover the expense of maintenance and operation of the beach and of some capital improvements. Over the years the charges were intended merely to approximate these costs and not to produce net income or profit to petitioner; during the period 1940-1944 the accounts of the beach, *414 maintained on a cash receipts and disbursements basis, reflected an excess of receipts over expenditures of $42.11.
In July 1941 the Collector notified petitioner to collect a tax of 10 per cent on all tickets to the beach sold on or after July 25 of that year. Petitioner had not previously collected such taxes, and it refused to do so after the Collector's notice. Subsequently the Commissioner under § 1718 of the Code assessed over petitioner's protest penalties in the amount of the tax which the Commissioner claimed should have been collected under § 1700 (a) from July 25, 1941 through 1945, plus interest and sums due under § 3655 (b) of the Code for failure to pay the tax on demand. These penalties amounted to $6,139.93 and were paid out of petitioner's general funds raised by property taxes.
Petitioner filed timely claims for refund which were rejected, and in 1946 brought this suit against the Collector. The District Court entered judgment for petitioner. 76 F. Supp. 924.[2] The Court of Appeals for the Seventh Circuit reversed. 172 F. 2d 885. Because the questions presented have importance in the administration of the admissions tax sections of the Code, we granted certiorari. 337 U. S. 937.
First. The Government raises no issue as to petitioner's standing to sue for refund. As recovery is here sought of penalties paid from petitioner's general revenue fund after its failure to collect the tax, we deem petitioner's financial interest clearly sufficient.[3]
Second. Section 1700 (a) is applicable if the charge made by petitioner for admittance to the beach was, *415 within the meaning of the statutory language, an "amount paid for admission to any place."
The words of the provision when taken in their ordinary and familiar meaning reflect a legislative purpose of comprehensive application. By its terms the section embraces every payment made in order to secure admittance to a specific location. And this purpose of broad application is not less certain because of anything in the legislative history of the initial adoption of that language.[4] In this view it is unnecessary to consider whether petitioner's beach area can be distinguished from a "spectator entertainment," for we are unable to accept petitioner's argument that Congress intended in § 1700 (a) to tax only admissions to such events.[5]
We think it clear that a beach area may be a "place" in the sense of § 1700 (a) (1). Petitioner's beach park, including the adjacent shoal waters, was policed and *416 lighted; the land area was defined, and entrance was through gates. A payment was made by patrons of the beach as the condition of admittance to a specific area with definite physical limits. Thus the fee which petitioner charged was "paid for admission" to a "place" as those terms are used in § 1700 (a) (1).[6]
We cannot agree with petitioner's suggestion that Congress intended to exempt from tax admissions to any activity not conducted for gain. Section 1701 of the Code did allow certain exemptions prior to their termination on October 1, 1941 pursuant to the Revenue Act of 1941, § 541 (b). 55 Stat. 687, 710. In § 1701 Congress exempted admissions to certain classes of events and admissions all the proceeds of which inured exclusively to the benefit of designated classes of persons or organizations. But since Congress did not exempt all activities not for profit as it readily might have done, it appears that admissions to such activities are not for that reason outside the admissions tax scheme. Exmoor Country Club v. United States, 119 F. 2d 961 (C. A. 7th Cir., 1941).
Nor is there greater force in petitioner's contention that the admissions tax was not intended to apply in the case of activities conducted by a municipality. In interpreting federal revenue measures expressed in terms of general application, this Court has ordinarily found them operative in the case of state activities even though States were not expressly indicated as subjects of tax. See concurring opinion in New York v. United States, 326 U. S. 572, 584 and n. 3 (1946). And in Allen v. Regents of the University *417 System of Georgia, 304 U. S. 439 (1938), it was decided that the admissions tax law was applicable in connection with activities carried on by an agency of a State, although it does not appear that the issue of legislative purpose was there disputed. However, we are unable to discover that there has been any design to exempt admissions to municipally conducted activities.[7] We regard the interpretative issue as controlled by a long-continued administrative construction, expressly denying such exemption,[8] which has been followed by repeated reenactment *418 of the relevant language without change.[9] Cf. Helvering v. Winmill, 305 U. S. 79 (1938).
Finally, § 1700 (a) (1) is not rendered inapplicable because beach patrons make use of a beach and its facilities, thus affording characterization of the admission fee as a "use charge." Few if any admissions taxable under § 1700 (a) are not accompanied by a use of the property or equipment to which the admittee's license extends. Although table accommodations for which a charge is made are usually thought of as objects of a patron's use, yet Congress in § 1704 of the Code has declared that for purposes of the admissions tax law a charge for their use must be treated as a charge for admission and not as a rental charge. A similar result must obtain when payment is prerequisite, as it was at petitioner's beach, to both admission to and use of a specific area. Chimney Rock Co. v. United States, 63 Ct. Cl. 660 (1927), cert. denied, 275 U. S. 552 (1927); Twin Falls Natatorium v. United States, 22 F. 2d 308 (D. Idaho, 1927).[10]
The trial court, in allowing judgment for petitioner in view of the use made of the beach, considered the fee a "use tax." But if there is no tax exemption for admissions to a municipally conducted activity, then a municipality may not escape tax by claiming that its admission fee is a "use tax" when a similar private business could not advance such claim. Nor does it matter that petitioner's authority to make any charge to beach patrons *419 is derived from a statute which contemplates a charge for "use." Ill. Rev. Stat., c. 105, § 8-7d (1947). The application of the federal admissions tax statute is not controlled by the characterization of petitioner's fee by local law. Cf. Morgan v. Commissioner, 309 U. S. 78, 81 (1940).
We conclude that § 1700 (a) is applicable.
Third. The constitutionality of admissions tax levied in connection with an activity of a state instrumentality was before this Court in Allen v. Regents of the University System of Georgia, 304 U. S. 439 (1938). We there found no constitutional inhibition against a nondiscriminatory imposition of such tax on admissions to an athletic exhibition conducted in connection with a state educational administration and in the performance of a governmental function.
The Allen decision followed soon after Helvering v. Gerhardt, 304 U. S. 405 (1938), which declared two principles limiting state immunity from federal taxation. Id. at 419. The first of these, invoked in the Allen decision, was dependent upon the nature of the function being performed by the state agency and excluded from immunity such activities as might be thought not essential for the preservation of state government. We need not consider here the applicability of that doctrine, for the petitioner's assertion of immunity must be rejected on the second restrictive principle reaffirmed in the Gerhardt decision. This "principle, exemplified by those cases where the tax laid upon individuals affects the state only as the burden is passed on to it by the taxpayer, forbids recognition of the immunity when the burden on the state is so speculative and uncertain that if allowed it would restrict the federal taxing power without affording any corresponding tangible protection to the state government." 304 U. S. at 419-420. According to this principle, the State "is not necessarily protected from a tax which well may be substantially *420 or entirely absorbed by private persons." Id. at 420.
While the Allen decision assumed that the admissions tax there imposed was a direct burden on the State, that assumption was required only for the purpose of considering the first principle of limitation of immunity as formulated in the Gerhardt case. Such an assumption need not be made here. It is true, of course, that unless there is a shift in demand for admissions to petitioner's beach, imposition of the tax may to an undeterminable extent adversely affect the volume of admissions.[11] Insofar as this occurs, the services of the District will be less widely available and its revenues from beach admissions will be reduced. But admissions tax, which is "paid by the person paying for such admission," is so imposed as to facilitate absorption by patrons of the beach rather than by the District, and we have no evidence that the District will be forced to absorb the tax in order to maintain the volume of its revenues and the availability of its benefits. Cf. Metcalf & Eddy v. Mitchell, 269 U. S. 514, 526 (1926). "The mere fact that the economic burden of such taxes may be passed on to a state government and thus increase to some extent, here wholly conjectural, the expense of its operation, infringes no constitutional immunity. Such burdens are but normal incidents of the organization within the same territory of two governments, each possessed of the taxing power." Helvering v. Gerhardt, supra, 304 U. S. at 422.
As it follows that there is no constitutional objection to the tax penalties assessed against petitioner, the decision of the Court of Appeals must be
Affirmed.
MR. JUSTICE DOUGLAS and MR. JUSTICE MINTON took no part in the consideration or decision of this case.
NOTES
[1] A war tax rate of 1 cent for each 5 cents or major fraction thereof has been in effect since April 1, 1944, pursuant to Revenue Act of 1943, § 302 (a). 58 Stat. 21, 61 (1944).
[2] The District Court allowed recovery only of payments made since January 1, 1945, when respondent took office as Collector. These payments were based on petitioner's operations after October 1, 1941, through 1945. Prior to January 1, 1945, petitioner paid $57.20 on the basis of operations from July 25, 1941, to October 1, 1941.
[3] See 42 Ill. L. Rev. 818, 819-820 (1948).
[4] The Report of the House Committee on Ways and Means relating to the War Revenue Act of 1917 "recommended that this tax be imposed upon all places to which admission is charged, such as motion-picture shows, theaters, circuses, entertainments, cabarets, ball games, athletic games, etc., but not upon admissions all the proceeds of which will go exclusively to the benefit of religious or charitable institutions or for agricultural purposes." H. R. Rep. No. 45, 65th Cong., 1st Sess. 8 (1917). See 55 Cong. Rec. 2148 (1917).
[5] In the admissions tax provisions of the Code, words restricting the imposition of tax to certain classes of places appear only in subsections other than (a) of § 1700. Section 1700 (b) imposes a tax of 11 per cent on the permanent use or lease of boxes or seats "in an opera house or any place of amusement"; such tax is in lieu of that provided for under § 1700 (a). Section 1700 (c) imposes on the sale outside box offices, of tickets to "theaters, operas, and other places of amusement" a tax of 11 per cent of the price in excess of the box office price; such tax is in addition to the tax imposed by § 1700 (a). Section 1700 (d) imposes a tax of 50 per cent on the amount of sales in excess of regular price by the management of "any opera house, theater, or other place of amusement." Section 1700 (e) imposes a tax of 5 per cent on amounts paid for admission, refreshment, service, or merchandise, "at any roof garden, cabaret, or other similar place furnishing a public performance for profit"; in such cases no tax may be imposed under § 1700 (a).
Compare Exmoor Country Club v. United States, 119 F. 2d 961 (C. A. 7th Cir., 1941); Twin Falls Natatorium v. United States, 22 F. 2d 308 (D. Idaho, 1927); United States v. Koller, 287 F. 418 (W. D. Wash., 1921).
[6] Accord: Dashow v. Harrison, 1946 P-H ¶72,405 (N. D. Ill., 1946).
[7] Although an exemption was allowed by § 1701 of the Internal Revenue Code prior to October 1, 1941, of "admissions all the proceeds of which inure . . . exclusively to the benefit of . . . societies or organizations conducted for the sole purpose . . . of improving any city, town, village, or other municipality," we need not determine whether the exemption was properly interpreted as inapplicable to activities conducted by a municipal corporation. See Treas. Reg. 43 (1928 ed.) Art. 22; id. (1932 ed.) Art. 22; id. (1940 ed.) § 101.25. The provision became inapplicable prior to the period for which petitioner made payments which could be recovered against the present respondent. See note 2, supra.
Petitioner has argued that the specific exemption benefiting municipal improvement societies was intended to afford them the same exemption which Congress thought applied to municipal corporations; thus, it is urged, repeal of the societies' exemption still would leave the exemption in the case of municipally conducted activities. If Congress assumed that any such municipal corporation exemption existed by implication, it seems likely that it did so because of constitutional considerations which we notice hereafter and not because of a belief or purpose that the tax was not applicable to activities conducted by any public agency. Thus Congress, in adopting 49 Stat. 1757, 1792 (1936) and 55 Stat. 303, 350 (1941), apparently assumed that an express exemption was necessary in order to withdraw admissions to National Parks from the tax statute. Cf. 55 Stat. 687, 710 (1941), terminating such exemptions of park admissions.
[8] Treas. Reg. 43 (1919 ed., Part 1) Art. 42; id. (1921 ed., Part 1) Art. 42; id. (1922 ed., Part 1) Art. 26; id. (1924 ed., Part 1) Art. 26; id. (1926 ed., Part 1) Art. 26; id. (1928 ed.) Art. 24; id. (1932 ed.) Art. 24; id. (1940 ed.) § 101.27; id. (1941 ed.) § 101.16.
[9] Revenue Act of 1918, § 800, 40 Stat. 1057, 1120; Revenue Act of 1921, § 800, 42 Stat. 227, 289; Revenue Act of 1924, § 500, 43 Stat. 253, 320; Revenue Act of 1926, § 500, 44 Stat. 9, 91; Revenue Act of 1928, § 411, 45 Stat. 791, 863; Revenue Act of 1932, § 711, 47 Stat. 169, 271; Pub. Res. No. 36, June 28, 1935, 49 Stat. 431; I. R. C. §§ 1700, 1701 (1939); Revenue Act of 1941, § 541, 55 Stat. 687, 710.
[10] See Huguenot Yacht Club v. United States, 32 F. Supp. 387, 388 (S. D. N. Y., 1940); Lent, The Admissions Tax, 1 Nat. Tax J. 31, 35-36 (1948); 61 Harv. L. Rev. 894 (1948).
[11] See Lent, note 10, supra, at 40-42.
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608 F.Supp.2d 10 (2009)
Elizabeth BOLGER, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No. 03-0906 (JDB).
United States District Court, District of Columbia.
March 31, 2009.
*12 Carl L. Messineo, Partnership for Civil Justice, Washington, DC, for Plaintiffs.
Carl James Schifferle, Office of the Corporation Counsel, William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
JOHN D. BATES, District Judge.
Plaintiffs are eight individuals who were arrested for unlawful entry of a parking *13 garage after attending the daylong protests on April 20, 2002 that coincided with the spring meetings of the World Bank and the International Monetary Fund in Washington, D.C. Plaintiffs allege that their arrests violated the U.S. Constitution and D.C. common law, and they assert claims against both the District of Columbia (the "District") and various Washington, D.C. ("MPD") police officers.[1] Currently before the Court are the parties' cross-motions for summary judgment. Plaintiffs have also requested sanctions against the District based on the destruction of recorded police radio communications sought during discovery. For the reasons set forth below, the Court will deny plaintiffs' motion for summary judgment and will deny their request for sanctions without prejudice. The Court will enter judgment in favor of defendants on those claims as to which plaintiffs do not oppose dismissal,[2] but it will deny defendants' motion in all other respects with the exception of qualified immunity for MPD Officers Michael Carruth, Andrea Latson and Adrian Sanders, which will be granted.
BACKGROUND
After nearly six years of litigation and an extremely contentious discovery process, many facts in this case remain hotly contested. What follows is a brief overview of the key events that transpired on April 20, 2002. Where facts are disputed, the Court has so noted.
A group of individuals, including plaintiffs, traveled from Baltimore to Washington, D.C. on the morning of Saturday April 20, 2002 to attend the protests that were scheduled to coincide with the spring meetings of the World Bank and the International Monetary Fund ("IMF"). See Pls.' Stmt. of Facts As to Which There Exists a Genuine Issue to Litigate ("Pls.' Stmt.") ¶ 1. One member of the group, Jacob Leshner, worked as an information technologies specialist at the Association for Professionals in Infection Control and Epidemiology ("APIC"). Id. APIC's offices are located at 1275 K Street, N.W., in downtown Washington, D.C. As an APIC employee, Leshner possessed an electronic keycard that granted him access to the building garage on weekends. Id. Upon arrival at APIC's offices that day, Leshner used his electronic keycard to open the garage door and the grouptraveling in two vans and one carparked in the underground garage. Id. The group then exited the garage and spent the day participating in the protests. Id.
As the protests were winding down, some members of the group told Leshner that they wished to return to the parking garage to eat food that had been left in one of the vans. Id. ¶ 4. Because Leshner wanted to remain at the final rally site for another ten or twenty minutes to listen to a musical performance, he invited members of the group to return to the garage without him. In order to allow them to enter the garage, Leshner gave his electronic *14 keycard to Todd Spalt. Id. Among those who returned to the parking garage with Spalt were individuals dressed in all black attire and/or in possession of black bandanas, carrying protest signs bearing anti-war and anti-capitalist messages, wearing t-shirts with radical political slogans, and wearing items of clothing displaying the letter "A" surrounded by a circle, a recognized symbol for anarchism. Id. ¶ 2.
The group led by Spalt arrived at the parking garage in two batches, with one arriving shortly after the other. Id. ¶ 9. They both claim that they utilized Leshner's keycard to gain entry to the garage. Id. ¶¶ 10-11. According to defendants, however, at approximately the same time, U.S. Secret Service Sergeant Mike Kuchinsky ("Sgt. Kuchinsky") observed a group of approximately twelve individuals standing near the entrance to an underground parking garage at 13th and K Streets, N.W. See Defs.' Stmt. of Material Facts As To Which There Is No Genuine Dispute ("Defs.' Stmt.") ¶ 1. Sgt. Kuchinsky noticed that some of these individuals had helmets, gas masks, or defense shields. Id. ¶ 2. As he was driving, Sgt. Kuchinsky observed a vehicle exiting the parking garage or a neighboring alley, and he also saw the garage gate begin to close. Id. ¶ 3. He then says that he saw four to six individuals from the group diving or rolling under the garage gate just before it closed. Id. ¶ 4. At this point, Sgt. Kuchinsky says that he called MPD to report what he had witnessed. Id. ¶ 5. MPD arrived at the scene soon thereafter. Id. ¶ 6.
Meanwhile, shortly after the protestors returned to the van and began to eat, one group member, plaintiff Helen Johnson, walked to the top of the parking ramp to use her cell phone. Pls.' Stmt. ¶¶ 16-17. At that time, Ms. Johnson encountered a law enforcement officer who was located on the other side of the grated metal garage door. According to Ms. Johnson, the officer demanded to know who was in the garage and demanded to be let in. Id. ¶ 17. Once she explained that she could not let the officer into the garage because she did not have the electronic keycard, Ms. Johnson returned to the lower level of the garage to find Spalt and apprise him of the situation. Id. ¶¶ 17-18. Spalt, accompanied by at least one other member of the group, immediately walked up the ramp to speak to the officer. Id. ¶¶ 18-19. After Spalt explained that the group was gathered in the garage eating food, Sgt. Kuchinsky asked Spalt if he would open the garage door so that law enforcement could speak with the group further. Id. ¶¶ 21, 23. In response, Spalt passed the keycard through the metal grate of the gate so that the law enforcement personnel could enter. Id. ¶ 24.
Plaintiffs assert that upon opening the garage door, a number of law enforcement officers charged down the ramp into the garage while yelling and shouting. Id. ¶¶ 28-29. Many of the individuals within the garage contend that, in response to the loud noises they heard coming down the ramp, they chose to exit the garage by using the stairwell. Id. ¶ 29. By contrast, defendants claim that upon reaching the group, one officer yelled "police" and most of the individuals then ran away. Defs.' Stmt. ¶ 10. The individuals who did exit the garage via the stairwell say that they walked briskly, but calmly, up the stairwell, through the lobby, and out onto the street. Pls.' Stmt. ¶ 34. Once there, a number of these individuals encountered the police, who detained them. Id. ¶ 33; Defs.' Stmt. ¶¶ 13, 15. Those individuals who remained in the garage were escorted to the street level by MPD officers and detained. Pls.' Stmt. ¶ 32; Defs.' Stmt. ¶ 15. A total of twenty-four individuals, *15 including Spalt, were detained by MPD. Defs.' Stmt. ¶ 15; Pls.' Stmt. ¶ 28. However, none of these individuals was arrested immediately. Pls.' Stmt. ¶¶ 38, 40.
Rather than arrest the group, the MPD commenced an investigation soon after the group had been cleared out of the garage. Around this time, Leshner also arrived at the scene. Id. ¶ 46. Leshner says that he was very vocal in his efforts to inform the authorities that he worked in the building, that those individuals being detained had parked in the garage with him that morning, and that because he was running a few minutes behind he had given his keycard to Spalt in order to allow them access to the garage. Id. Leshner was left with the impression at the time that his statements to law enforcement were generally disregarded. Id. ¶ 47. Contrary to this belief, however, Leshner's pleas did not fall on deaf ears. The record demonstrates that numerous law enforcement personnelincluding Commander Mark Beach ("Cmdr. Beach"), the officer in charge at the scenewere aware at the time that the group possessed an electronic keycard that was provided by a building employee (i.e., Leshner) and that the keycard was used to gain entry to the garage. See id. ¶ 50.
During the course of the investigation, John Johnson, a building security guard at 1275 K Street, N.W., employed by Admiral Security, was interviewed by MPD. Affidavit of John Johnson ("Johnson Aff.") ¶ 2. Johnson says that he "never told the police that the individuals lacked authority to be on the premises." Id. ¶ 3. He also claims that when speaking to MPD at the scene, he did not request that the protestors be arrested, nor did he believe that he had any reason to make such a request. Deposition of John Johnson ("Johnson Dep.") at 10. By contrast, MPD Officer Jeffrey Cadle, who interviewed Johnson at the scene, testified that Johnson told him that the individuals did not have authority to be on the premises. Deposition of Jeffrey Cadle ("Cadle Dep.") at 49. Officer Cadle's notes from the scene are consistent with his testimony. Defs.' Ex. J (Cadle notes) ("Security Guard Johnson advises that they do not have authorization to be on premises.").
It is undisputed that during the course of MPD's investigation some effort was made to locate a representative of the building management company to ascertain whether the group had permission to use the parking garage. The parties vehemently disagree whether such an individual was ever contacted. Cmdr. Beach testified that he was informed that "a representative of property management requested their arrest and indicated that the representative from property management would be a complainant in the D.C. Superior Court for the prosecution of those persons for unlawfully entering." Deposition of Mark Beach ("Beach Dep.") at 155; see also Beach's Responses to Pls.' First Set of Interrogs. ("Beach's Responses") at 6-7. Cmdr. Beach did not speak to the representative directly; rather, he says this information was relayed to him by another law enforcement officer. Beach's Responses at 6. Cmdr. Beach does not recall the name of the officer who provided this information to him and the officer has never been identified. Beach Dep. at 24-26.
The identity (as well as existence) of the building management representative also remains a mystery. Cmdr. Beach admitted that he never knew the representative's name, even at the time, nor did he ever see the individual. Id. at 23-24. The representative's name was not recorded at the scene by Officer Cadle along with the names of other witnesses. See Defs.' Ex. J. Nor was the name noted in the arrest documentation prepared several days laterinstead, *16 "JBG Company" was listed as the "complainant." See Pls.' Opp'n, Ex. 59 (MPD supplement report). MPD Sergeant Gregory Shamenek ("Sgt. Shamenek") testified that he recalled attempting to call a contact number listed on the wall of the parking garage during the investigation, but that he could not recall if those efforts were successful. Deposition of Gregory Shamenek ("Shamenek Dep.") at 39-41. Efforts by the building management company, JBG Properties, to search its records and identify such a person were also unsuccessful. See Affidavit of JBG Props., Inc. ("JBG Props. Aff."). Nonetheless, defendants contend that Sgt. Kuchinsky's testimony corroborates Cmdr. Beach's story. See Defs.' Reply to Pls.' Opp'ns to Mot. for Summ. J. ("Defs.' Reply") at 9-10. Sgt. Kuchinsky testified that he observed an individual having a conversation with MPD officers, and he "would assume" that someone from MPD verified that this person was a representative of the building management. Deposition of Michael Kuchinsky ("Kuchinsky Dep.") at 125-26. Sgt. Kuchinsky's testimony, however, offers nothing more concrete than this assumption. Based on the lack of corroborative evidence, plaintiffs assert that Cmdr. Beach is lying. See Pls.' First Opp'n at 2. On plaintiffs' view of the facts, Cmdr. Beach simply fabricated the building management representative in an attempt to manufacture probable cause where none existed. See id. at 2-3.
After investigating the circumstances surrounding the group's presence in the parking garage for over an hour, Cmdr. Beach gave the order to arrest plaintiffs, along with the other group members who were being detained, for unlawful entry. See Pls.' Stmt. ¶¶ 40, 55. While the investigation was still ongoing, members of the MPD's Civil Disturbance Unit ("CDU") arrived at the scene. Defs.' Stmt. ¶ 17. CDU was on duty that day in response to the World Bank/IMF meeting and the related protests. Id. ¶ 18. The CDU squad members who arrived at the scene included Officers Michael Carruth, Andrea Latson, Wendy Payne and Adrian Sanders. Id. ¶ 19. Acting pursuant to Cmdr. Beach's order, and at the direction of their commanding officers, Officers Carruth, Latson, Payne and Sanders processed plaintiffs' arrests. Id. ¶¶ 39-47. After being transported from the scene to a MPD facility and there undergoing further processing, plaintiffs were released that night with a citation that directed them to appear in court on a future date to respond to the unlawful entry charges. Id. ¶¶ 53-54. Before their court date, however, the U.S. Attorney's Office made the determination not to prosecute and entered a nolle prosequi on all charges. Id. ¶ 55.
This action was initiated in 2003.[3] After several amendments to the complaint, the gravamen of plaintiffs' case remains the sameplaintiffs believe that they were targeted improperly by law enforcement because they were perceived to be anarchists and, consequently, they were arrested without probable cause for exercising their constitutionally protected rights to free speech and free association during the World Bank/IMF protests. Based on this premise, plaintiffs assert claims against the District and the individual MPD officers involved in their arrests pursuant to 42 U.S.C. § 1983 ("section 1983"), contending that their arrests violated both the First and Fourth Amendments and deprived them of due process of law. See Second Am. Compl. ¶¶ 65-66. Plaintiffs also assert claims for false arrest and imprisonment under D.C. common law *17 against all defendants with the exception of Cmdr. Beach. Id. ¶ 67.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252, 106 S.Ct. 2505.
ANALYSIS
I. Probable Cause to Arrest Plaintiffs for Unlawful Entry
In Count I, plaintiffs raise claims alleging that they were falsely arrested and imprisoned in violation of the First and Fourth Amendments and D.C. common law.[4] Second Am. Compl. ¶ 65. Both parties agree that because the arrests at issue here were made without a warrant, the presence or absence of probable cause to arrest plaintiffs is essential to resolving Count I. See Pls.' Am. Mot. for Summ. J. ("Pls.' Am. Mot.") at 7-13; Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 6-14; see also Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C.Cir.1993) ("Where, as here, a false arrest claim is based on a warrantless arrest, the defendant officers must establish probable cause to arrest."). Although the Court agrees with the parties, it cannot, based on the present record, determine as a matter of law whether there was probable cause in this case because there is a genuine issue of material fact whether a representative of the building management ever informed law enforcement that *18 plaintiffs were not authorized to be in the parking garage. Without resolving that factwhich is unmistakably a task for the jury, especially because Cmdr. Beach's credibility is at issuethe Court cannot determine as a matter of law whether there was probable cause to arrest plaintiffs for unlawful entry. Consequently, summary judgment on this issue is precluded for both parties, and none of the claims encompassed by Count I can be resolved at this time.
"The elements of a constitutional claim for false arrest are substantially identical to the elements of a common-law false arrest claim." Scott v. District of Columbia, 101 F.3d 748, 753 (D.C.Cir. 1997). In resolving a claim for false arrest, whether raised pursuant to section 1983 or D.C. common law, the central inquiry is identical: was the arresting officer justified in ordering the arrest of the plaintiff? See Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977). If the arrest was justified then "the conduct of the arresting officer is privileged and the action fails." Id. Because "[j]ustification can be established by showing that there was probable cause for arrest of the plaintiff on the grounds charged," id., "[m]ost false arrest claims turn on the issue of whether the arresting officer had probable cause," Scott, 101 F.3d at 754.
"It is well settled that an arrest without probable cause violates the fourth amendment." Martin v. Malhoyt, 830 F.2d 237, 262 (D.C.Cir.1987) (citing Gerstein, 420 U.S. at 111, 95 S.Ct. 854). Probable cause is determined on the basis of the "totality of the circumstances," see Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which requires that "the police had enough information to warrant a man of reasonable caution in the belief that a crime has been committed and that the person arrested has committed it," Barham v. Ramsey, 434 F.3d 565, 572 (D.C.Cir.2006) (internal quotations omitted); see Gerstein, 420 U.S. at 111, 95 S.Ct. 854 (probable cause to arrest exists when the facts and circumstances are sufficient to warrant a prudent person to believe that the individual has committed an offense).
Here, plaintiffs were arrested and charged with unlawful entry. In pertinent part, D.C.Code § 22-3302 defines the offense of unlawful entry as follows:
Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof . . . shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the Jail for not more than 6 months, or both.[5]
To prosecute this type of unlawful entry offense,[6] the government must prove that the accused: (1) entered or attempted to enter public or private premises or property; (2) did so without lawful authority; (3) *19 did so against the express will of the lawful occupant or owner; and (4) had general intent to enter. Culp v. United States, 486 A.2d 1174, 1176 (D.C.1985). Therefore, to have probable cause to arrest an individual for an unlawful entry of this sort an officer must have "enough information to warrant a man of reasonable caution in the belief" that all four of these elements are present. Barham, 434 F.3d at 572.
Plaintiffs do not dispute that the first two elements were present when they entered the parking garage at 1275 K Street, N.W., in the early evening of April 20, 2002. Pls.' Am. Mot. at 8. The primary dispute concerns the third element whether plaintiffs entered the parking garage "against the will of the lawful occupant or of the person lawfully in charge thereof." D.C.Code § 22-3302. On this issue, the parties have wildly divergent views of the facts. Without resolution of this core factual dispute, the Court cannot determine as a matter of law whether there was probable cause to arrest plaintiffs for unlawful entry.
In defendants' view, plaintiffs were not authorized to be in the parking garage because, inter alia, the police confirmed with persons in charge of the building that the group did not have permission to be on the premises.[7]See Defs.' Mot. at 11-14; Defs.' Reply at 9-10. Defendants first point to Officer Cadle's testimony regarding his conversation with security guard Johnson, whom he interviewed at the scene. Officer Cadle testified that Johnson told him that the individuals did not have authority to be on the premises. Cadle Dep. at 49. His notes from the scene are consistent with his testimony. Defs.' Ex. J ("Security Guard Johnson advises that they do not have authorization to be on premises.").[8] As further evidence, defendants also highlight Cmdr. Beach's testimony. He testified that he was informed by another member of law enforcement that "a representative of property management requested their arrest and indicated that the representative from property management would be a complainant in the D.C. Superior Court for the prosecution of those persons for unlawfully entering." Beach Dep. at 155; see also Beach's Responses at 6-7. Lastly, defendants contend that Sgt. Kuchinsky's testimony corroborates Beach's story because Kuchinsky *20 says that he observed an individual having a conversation with MPD officers, and he "would assume" that someone from MPD verified that this person was a representative of the building management. Kuchinsky Dep. at 125-26; see also Defs.' Reply at 9-10.
Plaintiffs offer a starkly different view of the evidence. To begin with, they contend that the undisputed evidence demonstrates that law enforcement knew at the time that plaintiffs' entry into the parking garage was invited by a building employee (Leshner), was effectuated by use of an electronic keycard, and was therefore with permission and was not against the will of the lawful owner or person in charge. See Pls.' First Opp'n at 1; Pls.' Stmt. ¶ 50. Because defendants possessed such knowledge, plaintiffs argue that it is reasonable to infer that the communications with the building management representative were fabricated in order to create the appearance that the group's presence was unauthorized. To support their claim, they attack Cmdr. Beach's credibility and assert that "[a]side from Beach's bare assertion, there is no evidence that any officer reported to Beach that there was such a [building management] representative." Pls.' First Opp'n at 2. Plaintiffs point out that Cmdr. Beach has never claimed to have spoken directly to the representative; rather, he says the information from the representative was relayed to him by another law enforcement officer. See Pls.' First Opp'n at 29-30; Beach's Responses at 6. At his deposition Cmdr. Beach could not identify the officer who provided this information to him. Beach Dep. at 24-26. Moreover, the record does not contain any evidence of this unknown officer's identity. Cmdr. Beach also admitted that he never knew the building representative's name, even at the time, nor did he ever see the individual. Id. at 23-24.
Plaintiffs assert that beyond Cmdr. Beach's "unsubstantiated claim, there is no evidence at all" to support the conclusion that a building management representative spoke to law enforcement. Pls.' First Opp'n at 29. The representative's name was not recorded at the scene by Officer Cadle along with the names of other witnesses. See Defs.' Ex. J. Law enforcement also failed to note the name in the arrest documentation prepared several days laterinstead, "JBG Company" was listed as the "complainant." See Pls.' Opp'n, Ex. 59. Sgt. Shamenek testified that he recalled attempting to call a contact number listed on the wall of the parking garage during the investigation, but that he could not recall if those efforts were successful. Shamenek Dep. at 39-41. Efforts by the building management company, JBG Properties, to search its records and identify such a person were also unsuccessful. See JBG Props. Aff. This evidence, plaintiffs argue, leads to the conclusion that the building management representative described by Cmdr. Beach "is wholly fictional." Pls.' First Opp'n at 28.
Plaintiffs also note that security guard Johnson's own testimony and his sworn affidavit directly conflict with Officer Cadle's account of their interaction. See Pls.' Reply in Supp. of Am. Mot. for Summ J. ("Pls.' Reply") at 9-10. Johnson says that he "never told the police that the individuals lacked authority to be on the premises." Johnson Aff. ¶ 3. He also testified that when speaking to MPD at the scene, he did not request that the protestors be arrested, nor did he believe that he had any reason to make such a request. Johnson Dep. at 10.
The Supreme Court has consistently emphasized that "at the summary judgment stage the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine *21 whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Likewise, the Supreme Court has cautioned that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury functions, not those of a judge" resolving a motion for summary judgment. Id. at 255, 106 S.Ct. 2505.
Based on the foregoing, the Court concludes that summary judgment on the issue of probable cause is precluded for both parties because there is a genuine issue of material fact whether a representative of the building management ever informed law enforcement that plaintiffs were not authorized to be in the parking garage. This factual dispute, which goes to the heart of the central element of the unlawful entry offense, makes it impossible to evaluate the totality of the circumstances at the time of the arrests, see Gates, 462 U.S. at 230, 103 S.Ct. 2317, and therefore the Court cannot determine as a matter of law whether Cmdr. Beach and the other officers had probable cause to arrest plaintiffs. The jury will ultimately have to resolve this dispute.
II. Qualified Immunity and Common Law Privilege
Irrespective of probable cause, the remaining individual defendantsCmdr. Beach and Officers Carruth, Latson, Payne and Sanders (the "arresting officers")argue that they are entitled to qualified immunity from suit under section 1983. See Defs.' Mot. at 15-20. The arresting officers also assert that under D.C. law they are entitled to common law privilege, which would immunize them from suit on plaintiffs' common law false arrest claims as well. Id. at 20. In response, plaintiffs contend that the individual defendants are not entitled to qualified immunity or common law privilege because their actions were not reasonable under the circumstances. See Pls.' First Opp'n at 33-37; Pls.' Second Opp'n to Defs.' Mot. for Summ. J. ("Pls.' Second Opp'n").
Both parties acknowledge that for purposes of the qualified immunity analysis, Cmdr. Beach, as the commanding officer who ordered the arrests, is situated differently than the officers who carried out the arrests at the direction of their superiors. For essentially the same reasons discussed above, the Court must deny Cmdr. Beach's qualified immunity claim at this time because there is a genuine issue of material fact regarding the existence of the building management representative, and the reasonableness of Beach's conduct cannot be assessed without first resolving that issue. On the other hand, the qualified immunity claims of the four arresting officers are, for the most part, untainted by this factual dispute. For that reason, the Court can resolve those qualified immunity claims as a matter of law. Based on the undisputed record evidence currently before the Court, the qualified immunity claims of Officers Carruth, Latson and Sanders will be granted. However, given certain factual circumstances that are unique to her case, Officer Payne's qualified immunity claim must be denied at this time.
Police officers enjoy a qualified immunity from suits alleging violations of constitutional rights. See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Supreme Court has made it clear that there are two inquiries involved in the qualified immunity analysis. The first question is: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201, 121 S.Ct. 2151. If the court determines that there is no such violation, the analysis is over and the officer is entitled to qualified immunity. *22 If, however, there is a constitutional violation, the second step in the analysis is to determine "whether the right was clearly established." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. When conducting the second step of the inquiry, it "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. at 201, 121 S.Ct. 2151; see Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ("the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established").
The Supreme Court's recent decision in Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), has altered the qualified immunity analysis somewhat by revisiting the sequence of the two-part inquiry set forth in Saucier. In Pearson, the Supreme Court wrote:
On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.
129 S.Ct. at 818. In granting courts greater discretion to conduct the qualified immunity analysis, Pearson also noted that "we continue to recognize that [the Saucier protocol] is often beneficial." Id.
The newfound flexibility that Pearson affords is of little import in this case because, on plaintiffs' version of the facts, there is no question that they have alleged a constitutional violation against the individual officers for either ordering (Cmdr. Beach) or carrying out (Officers Carruth, Latson, Payne and Sanders) plaintiffs' arrests without probable cause in violation of the Fourth Amendment and in retaliation for the exercise of protected First Amendment rights. Accordingly, the second part of the qualified immunity inquiry will be the Court's focus here.
A. Commander Beach
Cmdr. Beach's qualified immunity claim must be denied at this time due to the genuine issue of material fact regarding the existence of the building management representative. Until the jury resolves this underlying factual dispute, the Court cannot determine as a matter of law whether Cmdr. Beach's conduct in ordering plaintiffs' arrests was objectively reasonable under the second step of the qualified immunity analysis. See Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151. As this Court has recognized, "[o]nce a genuine issue of material fact is found to exist, the defense of qualified immunity shielding the defendant from trial must be denied. . . . [W]here there are issues of material fact surrounding [the conduct of either an arrestee or an arresting officer] it is impossible for the court to determine, as a matter of law, what predicate facts exist to decide whether or not the officer's conduct clearly violated established law." Halcomb v. WMATA, 526 F.Supp.2d 20, 22 (D.D.C. 2007) (quoting Gainor v. Rogers, 973 F.2d 1379, 1385 (8th Cir.1992)). If these facts are resolved in Cmdr. Beach's favor, then it seems likely that he would be entitled to qualified immunity. But if the jury resolves the facts in plaintiffs' favor, and concludes that the building management representative was a fabrication, then it seems equally likely that Cmdr. Beach would not be *23 entitled to qualified immunity because it would have been clear to a reasonable officer that his actions were unlawful under those circumstances. See Saucier, 533 U.S. at 202, 121 S.Ct. 2151. As a result, the Court cannot resolve Cmdr. Beach's qualified immunity claim on summary judgment at this time and his claim must be denied.
B. The Four Arresting Officers
Defendants argue that the four arresting officers are entitled to qualified immunity because they did not participate in the decision to arrest plaintiffs and they were not involved in plaintiffs' initial detention.[9]See Defs.' Mot. at 18. The arresting officers, along with other members of MPD's CDU, were only called to the scene after the initial detention and once the investigation was already underway. Thereafter, they received a directive from their superior officers to "process" the arrests and, according to defendants, they did so "based on the official representations made to them that the detainees had entered the building without authority and that probable cause existed to arrest for unlawful entry." Id. at 18-19. Plaintiffs do not dispute most of the relevant facts pertaining to the arresting officers' involvement at the scene, but nonetheless contend that qualified immunity should not be granted because these arrests were made without probable cause, none of the officers conducted their own independent assessment of probable cause, and simply following the orders of commanding officers was not reasonable under the circumstances. See Pls.' Second Opp'n at 2-3. Moreover, plaintiffs claim that the officers "ignored critical `red flag' factors, including the possession of a key card, that in the exercise of reasonable prudence would have merited some inquiry." Id. at 6.
Although plaintiffs argue that the four arresting officers had an "obligation to independently determine probable cause," id. at 4, the law is clearand was so at the time of plaintiffs' arrests[10] that "an officer may rely on another officer's determination of probable cause to make an arrest" even if the arresting officer does not have firsthand knowledge of the facts supporting probable cause, Barham v. Salazar, 556 F.3d 844, 850 (D.C.Cir.2009) (Henderson, J., concurring); see United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) ("`[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and . . . officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.'") (quoting United States v. Robinson, *24 536 F.2d 1298, 1299 (9th Cir.1976)); United States v. Loundmannz, 472 F.2d 1376, 1379 (D.C.Cir.1972) (probable cause exists if officer ordering arrest has "adequate first-hand knowledge to support a finding of probable cause" even though arresting officer does not); Daniels v. United States, 393 F.2d 359, 361 (D.C.Cir. 1968) ("There is no requirement that the arresting officer have sufficient firsthand knowledge to constitute probable cause. It is enough that the police officer initiating the chain of communication either had firsthand knowledge or received his information from some person . . . who it seems reasonable to believe is telling the truth."). However, the law is equally clear that an arresting officer is only permitted to rely on such representations and remain entitled to the protections of qualified immunity if it was objectively reasonable for him or her to do so under the circumstances. See Barham, 556 F.3d at 850 (stating that an arresting officer's reliance on the probable cause determination of another officer "must be objectively reasonable for him to be clothed with qualified immunity"); Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir.2000) ("Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists (e.g., a warrant, probable cause, exigent circumstances).").
With these principles in mind, a careful examination of the unique factual circumstances relevant to each individual officer establishes that, as a matter of law, Officers Carruth, Latson and Sanders were objectively reasonable in following orders to arrest plaintiffs and hence they are entitled to qualified immunity and common law privilege. However, due in large part to her knowledge of the electronic keycard prior to plaintiffs' arrests and her own testimony that she did not, at the time, believe that plaintiffs lacked authority to be in the parking garage, the Court cannot conclude, based on the current record, that Officer Payne's conduct was objectively reasonable. Therefore, the Court must, at this time, deny her qualified immunity claim, as well as her claim for common law privilege.
1. Officers Carruth, Latson and Sanders
The question here is whether the reliance by Officers Carruth, Latson and Sanders on the information about the existence of probable cause and the arrest orders of their superiors was objectively reasonable given that they had little, if any, firsthand knowledge of the underlying facts upon which a probable cause determination would have been based. Perhaps most critical to the Court's inquiry is whether any of these three officers possessed information at the time that would tend to undermine the existence of probable cause. After a thorough review, and despite plaintiffs' assertions to the contrary, the record does not contain any such information with respect to these three officers.
The record demonstrates that Officer Michael Carruth had extremely limited knowledge of the circumstances surrounding the detention and arrest of plaintiffs, but he also lacked any knowledge that would undermine the conclusion that there was probable cause to arrest. Officer Carruth was the arresting officer for plaintiffs Nathaniel and Timothy Meysenburg. Defs.' Ex. R (MPD field arrest forms). He testified that his actions at the scene were taken at the direction of his superior officers and that he "was advised by [one of them] that [the Meysenburgs were] in the building and we had probable cause to make the arrest." Deposition of Michael *25 Carruth ("Carruth Dep.") at 8, 16. Officer Carruth stated that he did not view himself as the arresting officer of plaintiffs because he merely "processed" the detainees after he was advised they were under arrest. See id. at 11. In his role as an officer processing the arrests, he presumed that the officer who gave the order to arrest had established probable cause and, consequently, he carried out the order without objection and without asking further questions. See id. at 18-19. He testified that he did not have any specific recollection about what was communicated to him, only that "these are the individuals who broke the law, unlawful entry . . . let's process them." Id. at 26. Officer Carruth also testified that at the time of the arrests he had no knowledge that one of the group members possessed an electronic keycard that allowed access to the garage. Id. at 16.
Officer Andrea Latson was the arresting officer for plaintiff Elizabeth Bolger. Defs.' Ex. R. She, too, relied on the information provided to her by her superior officer, Sergeant Malcolm Forbes. Officer Latson made clear that she never approached the detainees prior to the arrest; rather, she remained in the CDU van while Sgt. Forbes and other officials conferred near the suspects who were gathered on the sidewalk. Deposition of Andrea Latson ("Latson Dep.") at 69. She testified that her "probable cause came from [her] sergeant and what he advised [her]." Id. at 23. Officer Latson stated that after receiving the order to arrest from Sgt. Forbes, she:
[A]sked him, well, what happened? I know he couldn't go into detail, not that very moment, you know, and that's when he said that they were in the garage and they were in the garage without authorization and it is not 100 percent clear as to how they got in but they were in the garage and they weren't supposed to be in there. No one had permission to be in there.
Id. at 77-78. She also testified that at the time of the arrests she had not seen the electronic keycard, nor had she heard mention of it. Id. at 9. She said that she was only advised of the electronic keycard after this litigation had commenced. Id.
Of all the arresting officers, Officer Adrian Sanders had the most knowledge of the events that were thought to support the probable cause determination. Officer Sanders was the arresting officer for plaintiff Helen Johnson. Defs.' Ex. R. He testified that prior to the arrests he was "told that there were people who broke into a garage and that they weren't supposed to be in the garage." Deposition of Adrian Sanders ("Sanders Dep.") at 119. He also "learned that the building management did not give them permission to be in the garage." Id. Additionally, Officer Sanders testified that he was told that there was probable cause to arrest by Sgt. Forbes and Lieutenant Phillip Lanciano. Id. at 126. According to Officer Sanders, the conversations that he had with his fellow officers along with his own observations supported his belief that there was probable cause. Id.
With respect to the electronic keycard, Officer Sanders said that he did not have any information about the keycard when he arrived on the scene. Id. at 152. Nor did he have any information about the existence of a keycard, whether from a detainee or a fellow officer, prior to the arrests. Id. 127-28. His testimony was clear that he was not aware of the actual existence of the electronic keycard until after the arrests when plaintiffs were being transported from the scene for further processing. Id. at 135-36 ("[A]fter the transport condition, then we learned that there was an access card.").
*26 Officer Sanders's order to arrest came from Lt. Lanciano, who told him: "Let's lock them up." Id. at 111. Officer Sanders testified that when an order is given in a CDU situation there is little time for conversation or further questions. See id. at 31. But he also testified that this limitation did not present a problem for him in this situation because
[H]ad I believed at the time that the arrest was unlawful, that would be an entirely different situation, but because I believed at the time that there was baseline probable cause, I didn't object to what we were doing. Now, when the issue with the pass card came up later on, thatat that point, which was a time later, there was an opportunity to discuss.
Id. at 127. Despite learning of the keycard after the arrests, Officer Sanders was clear that based on the information available to him at the time of the arrests, he believed that plaintiffs lacked the lawful authority to be inside the garage. Id. at 148.
Plaintiffs' primary argument against qualified immunity for these three officers rests with the assertion that "[t]hey knew of evidence negating probable cause and yet arrested plaintiffs anyway." Pls.' Second Opp'n at 2. The Court simply does not agree. With respect to these three officers, plaintiffs strain the record to find any support for the proposition that the officers had information, prior to the arrests, that would undermine the existence of probable cause and make their conduct objectively unreasonable.
Plaintiffs attack Officer Carruth for his general lack of knowledge about the underlying basis for probable cause, and they point to the fact that he did not even know who ordered the arrests as evidence of his unreasonableness. Id. at 6-7. Officer Latson's conduct is characterized as unreasonable because she acknowledged that she relied on her superior officer, Sgt. Forbes, for probable cause yet he did not even know plaintiff Bolger's method of entry into the garage. Id. at 7-8, 11. Finally, plaintiffs impugn Officer Sanders's conduct because he also lacked information about the method of entry into the garage and he did not investigate whether plaintiffs possessed a keycard when he had overheard some talk about an access card prior to the arrests. Id. at 9, 12-13. Plaintiffs, however, fail to acknowledge that Officer Sanders did not actually become aware of the existence of the electronic keycard until after the arrests, a point clarified multiple times in his deposition testimony. See Sanders Dep. at 127-28, 135-36, 152.
Although plaintiffs try mightily to argue that these officers possessed information at the time of the arrests that would tend to undermine the existence of probable cause, the record simply does not support such a conclusion. In reality, plaintiffs would like the Court to second-guess the conduct of these officers and withhold the protection of qualified immunity based largely on the fact that they could have, arguably, undertaken a more active role at the scene by attempting to build an independent basis for probable cause. But the law is clear that these officers were entitled to rely on the arrest orders of their superior officers even if they themselves had scant firsthand knowledge of the underlying facts that were thought to support probable cause at the time. See Loundmannz, 472 F.2d at 1379; Daniels, 393 F.2d at 361. Moreover, the record does not reveal any facts that suggest that it was unreasonable for these officers to rely on the representations of their superiors with regard to the existence of probable cause (even if its existence may have, in fact, been questionable) and the ultimate *27 decision to arrest. Therefore, the Court concludes that based upon the uncontroverted record evidence, the conduct of Officers Carruth, Latson and Sanders was objectively reasonable; hence, they are entitled to qualified immunity from suit under section 1983.
The arresting officers also assert that they are entitled to common law privilege, which would immunize them from suit on plaintiffs' common law false arrest claims. Defs.' Mot. at 20. Under D.C. law, a police officer can justify an arrest, and establish that it was privileged, "by demonstrating that `(1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable.'" Scott, 101 F.3d at 754-55 (quoting District of Columbia v. Murphy, 631 A.2d 34, 36 (D.C.1993) (internal citations and quotations omitted)). "In making this inquiry, good faith is to be evaluated from the perspective of the arresting officer, rather than that of the plaintiff." Liser v. Smith, 254 F.Supp.2d 89, 96 (D.D.C.2003) (citing Murphy, 631 A.2d at 36-37). Having already concluded that their conduct was objectively reasonable, the Court also concludes that Officers Carruth, Latson and Sanders exhibited the good faith, reasonable belief necessary for common law privilege. As the Court concluded in Liser, even when probable cause to arrest is based on a mistake of fact: "Without any evidence that [the officer] possessed information to the contrary, his mistake cannot be said to be the product of bad faith; without any evidence that the source of his information was untrustworthy, his good faith mistake cannot be said to be unreasonable." Id. at 100. Such evidence is lacking here and, accordingly, these three individual defendants are entitled to summary judgment on plaintiffs' common law claims for false arrest and false imprisonment.
2. Officer Payne
Several critical facts distinguish Officer Payne's case from those of her colleagues and make it impossible, at this time, for the Court to grant her qualified immunity. Officer Payne was the only one of the arresting officers who was aware that one of the group members possessed an electronic keycard prior to the arrests, and she testified that she knew at the time that this fact potentially undermined the existence of probable cause. She also testified that at the time of the arrests she did not believe that plaintiffs lacked authority to be on the premises. Lastly, Officer Payne's testimony implies that she carried out the arrests not because she had a reasonable belief that the directives of her superior officers were lawful, but rather because she believed she had no choice but to follow the chain of command. Considered together, these facts preclude a finding at this time that Officer Payne's conduct was objectively reasonable.
Officer Payne was the arresting officer for plaintiffs Jessica Lahood and Debra Smith. Defs.' Ex. R. After arriving at the scene, Officer Payne estimates that she remained in the CDU van for thirty to forty-five minutes. Deposition of Wendy Payne ("Payne Dep.") at 43-44. Sgt. Forbes eventually approached the van and notified Officer Payne and her squad that they could get out of the van because the detainees were going to be arrested. Id. at 51. When she asked Sgt. Forbes what was going on he told her "to go with the flow until we find out further notice." Id. Once out of the van, Officer Payne said that she observed Cmdr. Beach talking to Lt. Lanciano and immediately thereafter Lt. Lanciano approached her and other members of CDU and told them that they were going to be the arrest team. Id. at 52-53. Sgt. Forbes also told her that the *28 detainees were being charged with unlawful entry, but he did not convey any further information to her about the conduct that led to their arrest or their method of entry into the garage. Id. at 54. Officer Payne testified that she did not "make any independent evaluation as to whether probable cause existed to arrest" because she had a direct order to arrest from her superior officer or "official." Id. at 57. After receiving the order to arrest from Sgt. Forbes, Officer Payne said "the only question was, what are they being charged with, and that's when he informed us unlawful entry." Id. at 58.
Officer Payne testified that at the time of the arrests she was aware that one of the detainees had an access card to the garage. Id. at 61 ("Q: At the time of the arrests, did you know that one of the people within the group that was arrested had an electronic access swipe card to get into the garage? A: It was mentioned, but I don't recall by whom."). Officer Payne later clarified that she learned this information because she heard Sgt. Forbes and Lt. Lanciano discussing it. Id. at 62 ("I cannot quote directly what they were saying. I did hear them saying there was a probability one of them had a key card."). She testified that this information gave her pause about carrying out the arrests. Id. ("Q: Did that information give you any pause in terms of participating in these arrests? A: Yes."). Officer Payne stated that she was concerned at the time "[b]ecause if he had a key card, he had access to the building. That gives him authorization, if it was issued from the building." Id. Despite this concern, Officer Payne did not ask any follow-up questions of Sgt. Forbes or Lt. Lanciano or offer any objectionsshe simply carried out her orders. Id. at 63 ("Q: Did you object at any point in time, like along the lines of hey, if they had a key card, we really shouldn't be locking them up for unlawful entry? A: Well, I had a direct order, and once I get that direct order, that's what we have to abide by.").
In her deposition, Officer Payne also stated that she did not believe at the time of the arrests that the three individuals she was arresting lacked authority to be in the parking garage. Id. at 60-61 ("Q: Based on the information that you knew at the time of the arrests, did you believe that your arrestees lacked the lawful authority to be inside the garage? A: No."). She also stated that she did not believe, at the time of the arrests, that any of the individuals had been given an order to leave the premises or had refused to leave the premises. Id. at 61. When asked if she understood "that within your responsibility or authority that you are entitled to object or ask for clarification of an order where you believe that there's a civil rights violation," Officer Payne responded: "Right, but unfortunately, in MPD, when an officer and a lieutenant comes to you and gives you a direct order that's what you do." Id. at 64. She further testified that she thought she lacked authority to ask for clarification about the circumstances of the arrests "[b]ecause [she is] an officer, and they are officials." Id. at 65.
Officer Payne contends that her conduct was reasonable because she learned of the possibility of the keycard from Sgt. Forbes and Lt. Lanciano and it was these same superior officers who gave the order to arrest. See Defs.' Reply at 14. Hence, according to her, "when the order to arrest came through these same superiors [she] could reasonably conclude that the probable cause determination took into account the key card." Id. Officer Payne also tries to mitigate the impact of her testimony regarding her belief that her arrestees did not lack authority to be on the premises. She argues that this testimony merely acknowledged *29 "that she had no personal knowledge to form such a belief [and] . . . [t]here is no dispute that the defendant officers generally lacked such personal knowledge." Id. at 15 n. 3.
The Court finds these interpretations of Officer Payne's testimony unconvincing. It is clear from the totality of her deposition testimony that she doubted the existence of probable cause at the time of the arrests and that she disregarded these doubts and carried out the arrests without objection or inquiry because she was given a direct order to do so by her superior officers. When viewed in context, Officer Payne's interpretation of her own testimony is self-serving and speculative and, in any event, is insufficient to recast her conduct as objectively reasonable.
The Court acknowledges that assessing the reasonableness of Officer Payne's conduct is made somewhat more difficult in light of the genuine issues of material fact that are at the core of this case. Much like in Cmdr. Beach's circumstance, if the jury resolves key facts in favor of defendants, then the facts supporting Officer Payne's qualified immunity claim may look drastically different at the close of trial than they do today. However, the Court is at this moment tasked with evaluating Officer Payne's qualified immunity claim in light of the record as it now stands. On that record, and given the genuine factual issues relating to probable cause and her assessment on the scene, the Court cannot conclude that Officer Payne's conduct was objectively reasonable in light of the circumstances that she confronted at the scene in the time leading up to plaintiffs' arrests on April 20, 2002. As a result, Officer Payne's qualified immunity claim will be denied. Because the Court has concluded that Officer Payne's conduct was not objectively reasonable, it also cannot conclude that she acted with the requisite good faith, reasonable belief in the lawfulness of her conduct for common law privilege to attach. See Scott, 101 F.3d at 754-55; Murphy, 631 A.2d at 36. Consequently, the Court will also deny Officer Payne's motion for summary judgment on plaintiffs' common law claim of false arrest and false imprisonment.
III. Section 1983 Claim Against the District of Columbia
In their motion, defendants state that they are moving "for summary judgment on all claims against them in this matter." Defs.' Mot. at 1. However, defendants' motion fails to address plaintiffs' claim against the District for municipal liability under section 1983. Generally, a local government cannot be held liable under section 1983 for a constitutional tort committed by its agent or employee because respondeat superior does not apply. Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 690-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, the Supreme Court has established that municipalities may be held liable under section 1983 if the injuries occurred pursuant to the "government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Id. at 694, 98 S.Ct. 2018.
There is no dispute that the Second Amended Complaint states a so-called Monell-style section 1983 claim alleging that plaintiffs' injuries were caused, at least in part, by the District's "policies or customs exhibiting deliberate indifference to the constitutional rights of protestors, and also of Anarchists or persons perceived to be Anarchists." Second Am. Compl. ¶ 51. Because defendants have failed to address this claim in their motion, summary judgment on this basis will be denied.
*30 IV. Plaintiffs' Request for Sanctions
Plaintiffs have also requested sanctions against the District, in the form of an adverse inference instruction, based on the destruction of recorded police radio communications sought during discovery. This Court has already sanctioned the District once during the course of this case for its failure to produce certain materials in response to plaintiffs' discovery requests and orders of this Court. See Bolger v. District of Columbia, 248 F.R.D. 339 (D.D.C.2008). Although the Court's prior findings have some general relevance here, the operative facts are unique to the instant request and will be recounted briefly below.
According to plaintiffs, the "radio runs" or recorded police channel communications at issue here were destroyed at some time in 2006 "after the MPD engaged in ad hoc non-routine and undocumented `heavy purging' of recorded police communications." Pls.' Updated Request for Sanctions ("Pls.' Request") at 1; see Deposition of James Crane ("Crane Dep.") at 6-7, 11-13. The destruction of these radio communications is particularly troubling from plaintiffs' perspective because it occurred years after the first discovery requests for such materials were made and months after Office of the Attorney General ("OAG") counsel Thomas Koger certified that the District "has no radio runs recorded during or related to the protests of April 20, 2002 and the arrests of plaintiffs." Pls.' Request, Ex. 2 at 38 (Def. D.C.'s Responses to Pls.' Second Request for Production of Documents and Things (May 2, 2005)).
The District counters by asserting that "[t]o the extent that recordings were lost that might have related to this case, such loss was the unintentional result of a routine operation of the police communications system." Def. D.C.'s Response to Pls.' Updated Request for Sanctions ("Def.'s Response") at 1. This routine operation was a purge of past recorded communications that, according to the District, "was necessary to allow police communications to have enough memory to continue recording new radio communications." Id. at 3; see Crane Dep. at 7. Although the District concedes that it made some errors by not immediately putting in place a litigation hold when this action commenced and by failing, until at least April 2006, to contact MPD's Office of Communicationsthe office where the recorded radio communications were stored prior to their destructionthe District nonetheless maintains that an adverse inference instruction is unwarranted here because "the recordings were minimally relevant, cumulative of other available evidence, and at any rate, would not have supported plaintiffs' claims in this case." Def.'s Response at 1.
The parties agree that three elements must be satisfied to warrant an adverse inference:
(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a "culpable state of mind"; and (3) the evidence that was destroyed or altered was "relevant" to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defense of the party that sought it.
Mazloum v. District of Columbia Metro. Police Dep't, 530 F.Supp.2d 282, 291 (D.D.C.2008) (quoting Thompson v. HUD, 219 F.R.D. 93, 101 (D.Md.2003) (internal citations omitted)). The District does not dispute that the first element is satisfied here because it was under an obligation to preserve the evidence at the time it was *31 destroyed and it failed to do so. See Def.'s Response at 4. With regard to the second and third elements, however, the District is adamant that they have not been satisfied.
The District contends that it did not act with a "culpable state of mind" for two reasons. First, the District argues that it made efforts to locate radio runs, which normally would have been signified by an "event" in MPD's Computer-Aided Dispatch ("CAD") system. Because there was no CAD event related to a request for police service at 1275 K Street, N.W., on April 20, 2002, the District certified that it had no radio runs relating to plaintiffs' arrests. See Declaration of Anne Grant ("Grant Decl.") ¶ 4. The District does concede, however, that it erred by focusing only on radio runs "and not considering the possibility that some recorded police channels might still have captured transmissions related to the arrests." Def.'s Response at 5. Second, the District asserts that "the purge was the result of a normal, routine operation of the police communications system." Id. The District admits that the purges did not occur at regularly defined intervals, but claims that they "were nevertheless routine, periodic events occurring whenever the system was reaching capacity." Id. Both of these facts, the District argues, demonstrate that it did not act with the requisite "gross negligence or bad faith" needed to satisfy the second element for an adverse inference.
Plaintiffs cite a laundry list of evidence to support their position that the District did, in fact, act with "gross indifference or reckless disregard" in destroying the recorded radio communications. See Pls.' Request at 3-4; see also Rice v. United States, 917 F.Supp. 17, 20 (D.D.C.1996). In brief, that evidence includes: the District's failure to issue a litigation hold; the District's December 31, 2003 discovery response erroneously representing that no responsive materials existed apart from sealed arrest records, see Pls.' Request, Ex. 4 (Pls.' Limited Discovery to Defs.); the District's mistaken February 25, 2005 discovery certification that it "has no radio runs recorded during or related to the protests of April 20, 2002 and the arrests of plaintiffs," Pls.' Request, Ex. 2 at 38; the District's incomplete representation, in an April 7, 2006 status report (Dkt. No. 61) filed in response to the Court's February 15, 2006 Order, that it had supplemented its discovery responses and that they were complete despite the District's failure to contact the Office of Police Communications to search for recorded radio communications prior to making this representation, see Crane Dep. at 5-6, 16-17; and the District's failure to contact the MPD's Office of Police Communications to search for recorded radio communications until May 2006 when it finally did so in response to the Court's May 2, 2006 Order, but by which time the relevant recordings had already been destroyed, see id.
This Court has recognized that "the adverse inference doctrine embraces negligent (in addition to deliberate) destruction of evidence." Mazloum, 530 F.Supp.2d at 292; see also More v. Snow, 480 F.Supp.2d 257, 275 (D.D.C.2007). Consequently, the District's stance that it did not act with "gross negligence or bad faith" is of no moment. Moreover, given the District's poor track record in satisfying its discovery obligations in this case, the Court cannot help but view the District's proffered explanation for its destruction of evidence with a jaundiced eye. Based on the facts recited above, the Court concludes that at a minimum the District was negligent in allowing the police radio communications to be destroyed. Therefore, plaintiffs have established the requisite "culpable state of mind" for an adverse inference instruction.
*32 The final element of "relevance" requires a determination whether "a reasonable trier of fact could infer that `the destroyed. . . evidence would have been of the nature alleged by the party affected by its destruction.'" Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109 (2d Cir.2002) (internal citations omitted); see Mazloum, 530 F.Supp.2d at 293 (citing Residential Funding, 306 F.3d at 109). It is at this final step of the adverse inference inquiry that the limited record currently before the Court presents some difficulties.
Plaintiffs allege that two types of evidence relevant to their claims were lost by the destruction of the recorded radio communications: (1) evidence of defendants' discriminatory intent and animus against those perceived to be anarchists (i.e., evidence supporting their First Amendment claims), and (2) evidence of defendants' knowledge at the time of the arrests regarding the existence, or non-existence, of the building management representative (i.e., evidence supporting their Fourth Amendment claims). See Pls.' Request at 6-7. Plaintiffs cite to Cmdr. Beach's deposition testimony as support for the claim that the destroyed recordings contained evidence of discriminatory intent or animus. As a general matter, Cmdr. Beach testified that he would expect that there would have been information recorded over the various police channels related to plaintiffs' arrests. See Beach Dep. at 89-91. He also said that on at least one occasion that day he referred to persons "dressed in black, anarchists, using that term," over a recorded police radio channel. Id. at 124. With respect to the second type of evidence related to probable cause, plaintiffs point to the timeline of events surrounding their arrests for support. Pls.' Request at 7. Specifically, plaintiffs assert that the gap of only twelve minutes between a report that there was no complainant on the scene (1825 hours), Pls.' Request, Ex. 11 (J.O.C.C. running resume), and the time that, according to Officer Cadle's notes, plaintiffs were arrested (1837 hours), Pls.' Request, Ex. 12 (Cadle notes), creates the reasonable inference that there may have been radio communications about the presence or absence of a complainant from the building management company.
Not surprisingly, the District argues that "the importance of the [destroyed] evidence to the plaintiffs' claims is minimal" and "[p]laintiffs present only wild speculation" to support their assertion that the lost recordings would have supported their claims. Def.'s Response at 5, 7. As to the first type of evidence, the District argues that the scope of information that was potentially lost is very narrow and, in any event, plaintiffs possess adequate substitute evidence because there is ample evidence in the record that Cmdr. Beach and other law enforcement officers referred to the group members as anarchists. See id. at 6-7. With regard to the latter type of evidence, the District simply dismisses plaintiffs' proffer as "wild speculation" and asserts that there is no reasonable basis from which to infer that the lost recordings would have contained statements supporting plaintiffs' contention that the building management complainant was fictional. See id. at 7.
Although the Court sympathizes with plaintiffs here, it cannot grant plaintiffs' request at this time. Put simply, plaintiffs have asked too much. In the Court's view, on the record currently before it, a reasonable trier of fact could not infer that the destroyed recordings would have contained evidence of retaliatory intent or animus beyond the identifying statements (i.e., persons dressed in black, anarchists) already acknowledged by the District. Nor could a reasonable jury infer that there *33 would have been evidence tending to disprove the existence of the building management company's mystery complainant. Plaintiffs' proffer with respect to this evidence is too speculative at this time. However, because plaintiffs have made the necessary showing on the first two elementsand the Court believes that a record developed fully during the course of trial could potentially provide plaintiffs with the support necessary to warrant an adverse inference instructionthe Court will deny plaintiffs' request without prejudice and will allow them to renew their request at an appropriate time after sufficient proof has been adduced at trial. The adverse inference they seek, after all, would be part of the jury instructions finalized at the close of the trial.
CONCLUSION
For the foregoing reasons, the Court will deny plaintiffs' motion for summary judgment on the issue of Commander Beach's liability and it will deny plaintiffs' request for sanctions without prejudice. The Court will enter judgment in favor of defendants on those claims as to which plaintiffs have not opposed dismissal, but it will deny defendants' summary judgment motion in all other respects with the exception of qualified immunity, which will be granted only as to MPD Officers Michael Carruth, Andrea Latson and Adrian Sanders at this time.
In the interest of moving efficiently toward a trial on the remaining issues in this case, a scheduling conference with the Court shall be held on April 23, 2009 at 9:00 a.m. in Courtroom 8. A separate Order accompanies this Memorandum Opinion.
NOTES
[1] In their Second Amended Complaint, plaintiffs also asserted claims against former FBI Director Robert Mueller based on the FBI's alleged involvement in the arrests. On September 11, 2007, the Court granted Director Mueller's motion for summary judgment on those claims. See Bolger v. District of Columbia, 510 F.Supp.2d 86 (D.D.C.2007).
[2] In their first opposition brief, plaintiffs state that they "are not opposing the dismissal of the conspiracy count or the claims asserted against defendants Forbes, Micey [sic] and Brown." Pls.' First Opp'n to Defs.' Mot. for Summ. J. ("Pls.' First Opp'n") at 1 n. 1. Accordingly, the Court will enter judgment in favor of defendants on Count II (Civil Conspiracy) and it will also enter judgment in favor of individual defendants Malcolm Forbes, Raymond Mincey and Arthur Brown, and they will be dismissed from this action.
[3] Three of the original plaintiffs in this caseNicole Davis, Todd Spalt and Jennifer Zimmermansettled their claims in early 2006 and are no longer a part of this litigation.
[4] Plaintiffs also allege that defendants' actions deprived them of "due process under the law." Second Am. Compl. ¶ 65. Plaintiffs, however, make no reference to the Fifth or Fourteenth Amendments in their pleadings. The Supreme Court has observed that "[t]he Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the `process that is due' for seizures of persons or property in criminal cases." Gerstein v. Pugh, 420 U.S. 103, 125 n. 27, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Therefore, and to the extent plaintiffs intended to plead another independent basis for relief under section 1983, the Court will regard plaintiffs' due process-based claim as merged with their Fourth Amendment claim.
[5] Since the time of plaintiffs' arrests on April 20, 2002, the statutory definition of unlawful entry has been amended, see D.C. Law 16-302, § 219, 53 DCR 8610 (Apr. 24, 2007), but the relevant portion of the offense quoted above has not been altered.
[6] A person may also be guilty of unlawful entry if he or she "refuse[s] to quit [any public or private dwelling, building, or other property, or part of such dwelling, building, or other property] on the demand of the lawful occupant, or of the person lawfully in charge thereof." D.C.Code § 22-3302. Because no such demand or refusal was made in this case, this type of offense is not at issue.
[7] Defendants cite several other factors that purportedly informed the probable cause determination. See Defs.' Mot. at 8-11. However, it was only after law enforcement allegedly received the information that a representative of the building management was willing to be a complainant that the decision to arrest was actually made. Cmdr. Beachthe officer who gave the order to arresttestified that it was this information that established probable cause to order the arrests. See Beach Dep. at 28-29. The Court agrees that this appears to be the dispositive fact in the probable cause determination here. In any event, there are also genuine issues regarding the facts underlying defendants' other asserted bases for probable cause. See Pls.' First Opp'n at 9-26.
[8] Plaintiffs suggest that Officer Cadle's testimony and his notes regarding his conversation with Johnson are entitled to no weight on summary judgment because both pieces of evidence are inadmissible hearsay. See Pls.' First Opp'n at 32; see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.Cir.2007) ("sheer hearsay . . . counts for nothing on summary judgment") (internal quotations omitted). The Court disagrees. Johnson's out-of-court statement is not being offered for the truth of the matter asserted (i.e., the group's lack of authority to be on the premises); rather, it is being offered to show that Johnson made such a statement at the scene to Officer Cadle and that the substance of his statement was known to Cadle (and thereby MPD) at the time. Consequently, this evidence is not hearsay in this context and the Court can properly consider it in resolving summary judgment.
[9] Defendants do not dispute that Officers Carruth, Latson, Payne and Sanders participated sufficiently in plaintiffs' arrests such that they may incur liability under section 1983; they simply argue that the officers are all entitled to qualified immunity from suit.
[10] For this duty, plaintiffs rely on language from the District Court opinion in Barham v. Ramsey, 338 F.Supp.2d 48, 61 (D.D.C.2004). However, subsequent opinions by the D.C. Circuit in the same case speak of no such duty and, as discussed in this section, the most recent Barham opinion supports the conclusion that reliance on the orders of other officers is permitted as long as objectively reasonable. See Barham v. Salazar, 556 F.3d 844, 850 (D.C.Cir.2009). Moreover, the decision relied on by plaintiffs came several years after the conduct at issue in this case. Hence, that opinion, and the rule that plaintiffs extract from it, cannot serve as the basis for a "clearly established" constitutional rule in this case. Lastly, even if the purported duty to independently investigate predated the events at issue in this case, the D.C. Circuit cases discussed here establish that such a rule could not be considered "clearly established" in this Circuit at that time.
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326 F.Supp.2d 128 (2004)
AF-CAP, INC., Plaintiff,
v.
THE REPUBLIC OF CONGO, Defendant.
No. CIV.A.03-1963 JR.
United States District Court, District of Columbia.
July 23, 2004.
Kenneth P. Kaplan, Greenberg Traurig, Washington, DC, for Plaintiff.
Sara D. Schotland, Michael Robert Lazerwitz, Cleary, Gottlieb, Steen & Hamilton, Washington, DC, for Defendant.
MEMORANDUM
ROBERTSON, District Judge.
This lawsuit involves an application for issuance of attachment and writ of fieri facias. Before the Court is Af-Cap, Inc.'s motion to strike all defenses and to issue writ of fieri facias, and defendant Republic of Congo's opposition thereto. Congo argues that the embassy is entitled to immunity pursuant to the Foreign Sovereign Immunities Act (the "FSIA"), codified at 28 U.S.C. § 1602-1611, and the Vienna Convention on Diplomatic Relations (the "Vienna Convention"), 23 U.S.T. 3227 (April 18, 1961). In the alternative, Congo contends that this action is barred by the *129 doctrine of collateral estoppel. For the reasons stated below, Af-Cap's motion is denied and the case is dismissed, sua sponte, for lack of subject matter jurisdiction.
Background
On February 1, 2000, Connecticut Bank of Commerce, a predecessor-in-interest to Af-Cap, obtained a default judgment against Congo in the amount of $10,375,244.83 plus interest and costs in the Supreme Court of the State of New York, Kings County. The Bank registered that judgment in a Texas state court and obtained from the clerk of that court, a writ of garnishment against a group of oil companies. On February 9, 2001, Congo and the garnishees removed the garnishment action to the United States District Court for the Western District of Texas and moved to dismiss. The district court dissolved the writs of garnishment and dismissed the action, holding, inter alia, that the garnishees' debts royalty and tax payments owed by the oil companies to Congo did not arise from a "commercial activity in the United States," 28 U.S.C. § 1610(a), and were immune from attachment.
On appeal, the United States Court of Appeals for the Fifth Circuit held that the dispositive factual question was what the royalties and tax payments were "used for," and not the question the district court had focused on how they were generated. The court held that "[i]f it turns out [upon remand] that the royalties and tax obligations are not used for any commercial activity in the United States, the district court should dissolve the writs of garnishment and dismiss the action." Conn. Bank of Commerce v. Republic of Congo, 309 F.3d 240, 260-61 (5th Cir.2002), amending on denial of reh'g, 2002 WL 1573488 (5th Cir.2002). On April 7, 2003, upon remand, the district court held that Congo does not use the royalties and tax payments for commercial activities in the United States. According to both parties, Af-Cap's appeal of that decision is pending before the Fifth Circuit.
On July 14, 2003, Af-Cap registered the Kings County default judgment with the Superior Court of the District of Columbia and then filed the application for issuance of attachment and writ of fieri facias (now under review). Congo removed the action to this Court on September 23, 2003.[1] In the District of Columbia, Af-Cap seeks to attach real property of Congo located at 4891 Colorado Avenue, N.W., Washington, D.C., and 5030 16th Street, N.W., Washington, D.C. It is undisputed that the property identified for attachment is the embassy of Congo.
Analysis
Foreign Sovereign Immunities Act
Af-Cap's argument that Congo waived its right to assert sovereign immunity under the FSIA in the Texas case is rejected.[2] "[T]he FSIA `must be applied by the district courts in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity.'" Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-35, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (quoting Verlinden B.V. v. Cent. Bank of *130 Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983)). "The Act itself grants federal courts jurisdiction over civil actions against foreign states ... and it governs the extent to which a state's property may be subject to attachment or execution." Republic of Austria v. Altmann, ___ U.S. ___, ___, 124 S.Ct. 2240, 2249, 159 L.Ed.2d 1, ___ (2004). The FSIA requires that attachment of a foreign state's property be accomplished by a court order. See 28 U.S.C. § 1610(c) ("No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution....").
American property owned by a foreign state can be immune from attachment, but not if it is "used for a commercial activity" and, inter alia,"the foreign state has waived its immunity from attachment." 28 U.S.C. § 1610(a)(1). Congo asserts that its embassy does not satisfy the "commercial activity" exception. I agree.
"Commercial activity" is defined in the general definitions section of the FSIA as
either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather that by reference to its purpose.
28 U.S.C. § 1603(d). Interpreting this definition in the context of the commercial activity exception to jurisdictional immunity (not directly implicated here), see id. § 1605(a)(2), the Supreme Court explained:
[Section 1603(d)] leaves the critical term "commercial" largely undefined: The first sentence simply establishes that the commercial nature of an activity does not depend upon whether it is a single act or a regular course of conduct; and the second sentence merely specifies what element of the conduct determines commerciality (i.e., nature rather than purpose), but still without saying what "commercial" means. Fortunately, however, the FSIA was not written on a clean slate. As we have noted, the Act (and the commercial exception in particular) largely codifies the so-called "restrictive" theory of foreign sovereign immunity first endorsed by the State Department in 1952. The meaning of "commercial" is the meaning generally attached to that term under the restrictive theory at the time the statute was enacted.
....
... [W]e conclude that when a foreign government acts, not as regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are "commercial" within the meaning of the FSIA. Moreover, because the Act provides that the commercial character of an act is to be determined by reference to its "nature" rather than its "purpose," 28 U.S.C. § 1603(d), the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in "trade and traffic or commerce."
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612-14, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (internal citation and emphasis omitted).
Weltover's filigree upon the commercial activity exception is not really necessary, however, to conclude that Congo's embassy property is not subject to attachment. *131 The proposition was nearly self-evident to the drafters of the FSIA, see 1976 U.S.Code Cong. & Admin. News 6604, 6628 ("embassies and related buildings could not be deemed to be property used for a `commercial' activity as required by section 1610(a)"), and numerous courts have confirmed that view. See, e.g., City of Englewood v. Socialist People's Libyan Arab Jamahiriya, 773 F.2d 31, 36-37 (3d Cir.1985) (use of property as a diplomatic residence "as a matter of law ... is not commercial activity"); Flatow v. Islamic Republic of Iran, 76 F.Supp.2d 16, 22 (D.D.C.1999) (use of the embassy and residences of Iran to support Iran's diplomatic activities "was sovereign in nature, not commercial"); S & S Machinery Co. v. Masinexportimport, 802 F.Supp. 1109, 1111-12 (S.D.N.Y.1992) (mission buildings are not used for commercial activity and do not fall within FSIA exception to immunity).
The Congolese embassy is not "used for a commercial activity," and does not fall within the FSIA's immunity exception of § 1610(a).
Vienna Convention on Diplomatic Relations
Even if the Congolese embassy were not immune from attachment under the FSIA, it would be immune from attachment under the Vienna Convention on Diplomatic Relations. See, e.g., Mashayekhi v. Iran, 515 F.Supp. 41, 42 (D.D.C.1981) ("Under the FSIA ..., what were then `existing international agreements' remain[ ] valid and superior to the FSIA wherever terms concerning immunity contained in the previous agreement conflict with the FSIA."). It is undisputed that Af-Cap's target of attachment is, and is only, the Congolese embassy. Article 22 of the Vienna Convention provides:
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
23 U.S.T. 3227, at Art. 22. The language of this Article "contains the advisedly categorical, strong word `inviolable' and makes no provision for exceptions other than those set forth in Article 31," (which is not applicable here). 767 Third Ave. Assocs. v. Permanent Mission, Republic of Zaire, 988 F.2d 295, 298 (2d Cir.1993).
Although the Vienna Convention refers only to "mission," the term generally used is "embassy." United States v. Kostadinov, 734 F.2d 905, 906 n. 1 (2d Cir.1984). The United States and Congo are parties to the Vienna Convention on Diplomatic Relations. Because the Vienna Convention expressly provides that "[t]he premises of the mission ... shall be immune from ... attachment," the embassy must be accorded immunity under the Convention.
ORDER
For the reasons set forth in the accompanying memorandum, plaintiff's motion to strike all defenses and to issue writ of fieri facias [3/4] is denied, and case is dismissed, sua sponte, for lack of subject matter jurisdiction.
NOTES
[1] "Solely for purposes of this proceeding, Af-Cap acknowledges that 28 U.S.C. § 1441(d) allows for removal of cases brought in a state court against a foreign state, and therefore withdraws any objection to this Court as a proper forum to resolve this action." Pl.'s Reply, at 5 n. 2.
[2] The Fifth Circuit rejected it, too. See Conn. Bank of Commerce, 309 F.3d at 251.
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555 S.W.2d 839 (1977)
STATE of Missouri, Respondent,
v.
Russell Terrell RHONE, Appellant.
No. 59934.
Supreme Court of Missouri, En Banc.
September 12, 1977.
Rehearing Denied October 11, 1977.
*840 James C. Jones, Asst. Public Defender, 2nd Judicial Circuit, St. Louis, for appellant.
William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
DONNELLY, Judge.
Defendant, Russell T. Rhone, was convicted of burglary in the second degree by a jury in the Circuit Court of the City of St. Louis. Defendant was sentenced by the trial judge under the Habitual Criminal Act to a term of 10 years imprisonment. Appeal was perfected by defendant to the Court of Appeals, St. Louis District, where the judgment of conviction was affirmed. Upon application of defendant, the cause was transferred here by order of this Court to be determined "the same as on original appeal." Mo.Const. Art. V, § 10.
This case arose as the result of a burglary observed in progress by Patrolman Thomas Schmidt while on foot patrol on Union Boulevard in the City of St. Louis on the evening of May 13, 1974. Approximately 11:30 p.m. that evening, Patrolman Schmidt saw two men in a supermarket which was closed for business but which was well lighted. Officer Schmidt was unable to clearly see the facial features of either man; however, he was able to determine the type of clothing both men were wearing. Patrolman Schmidt testified that one of the men he saw in the market was wearing a dark blue shirt and plaid trousers. This description matched the clothing worn by the defendant when he was apprehended by motorcycle Patrolman Robert Porter who responded to a report of a burglary and who observed the defendant descending from the roof of the burglarized supermarket.
At the time the defendant was taken into custody by Officer Porter, Officer Schmidt was on the roof of the grocery store where he saw a hole that had been cut in the roof in order to gain entry into the building. Also, while on the roof, Patrolman Schmidt discovered and apprehended another man who was believed to be one of the men observed moments earlier inside the market. Patrolman Schmidt next saw the defendant as Patrolman Porter was escorting him from the side of the supermarket building to the alley at the rear of the building. Defendant was searched and found to be in possession of a .38 caliber handgun, which was identified by the owner of the store as belonging to him and kept in the store prior to the burglary.
Ms. Edith Struckhoff was called by the State to testify as the custodian of the records of the St. Louis Police Department Laboratory. Defendant's counsel objected to her reading from a report prepared by police department criminologist Lloyd Hill for the reason, among others, "that no evidence has been put on that the person who did this test is a qualified expert and she could not testify to that * * *." The trial court overruled the objection on the basis of State v. Taylor, 486 S.W.2d 239 (Mo.1972). The following questions were then asked and answers given in an attempt to qualify Lloyd Hill as an expert:
Q. Do you know a Lloyd Hill?
A. Yes, I do.
Q. What position did he hold at the Police Department Laboratory? A. He was a criminologist.
Q. What would the nature of his work as a criminologist entail? A. To examine and compare any clothing and debris that was brought in.
Q. All right. Would this be done in any specific method or procedures? A. Oh, yes.
*841 Q. Do you know approximately how long he was employed by the Police Department Laboratory as a criminologist?
A. I would say approximately a year.
Q. Are there other criminologists employed there in addition to Lloyd Hill?
A. Yes, sir.
Q. Do you know approximately the number of them, how many? A. Approximately 5 or 6.
Q. In order for them to be employed as a criminologist do they have to have certain qualifications as far as you know?
A. Yes.
Q. Do you know basically what those qualifications are? A. Well, they must have degrees in their field.
Q. Would you know the particular degree that Mr. Hill had at the time he worked for the Police Department Laboratory?
A. No, I don't know what degree he had.
Q. And is he presently employed by the St. Louis Police Department? A. No, he isn't.
After the qualifying evidence was elicited, Ms. Struckhoff proceeded to recite from the laboratory report concerning microscopic and spectrographic comparisons performed on the clothes the defendant wore on the night in question which led the preparer of the laboratory report, Mr. Hill, to conclude that the glass fibers and tar material found on the defendant's clothing came from the scene of the burglary. Ms. Struckhoff further stated that she had no personal knowledge of anything reflected in the report and she did not know how the tests were conducted. The laboratory report was offered and received into evidence.
The only assertion on appeal is that the "trial court erred in permitting Edith Struckhoff to testify as to the findings and opinions contained in the police laboratory report prepared by Lloyd Hill. Hill was not shown to be an expert in the subject matter of the report, and therefore his opinion and the report were inadmissible."
In Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, at 667 and 668 (1956), this Court took cognizance of The Uniform Business Records as Evidence Law, §§ 490.660-490.690, RSMo 1969, and saw "no reason why a proper expert medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand * * *." The Court then stated that it would presume the qualifications of a resident physician of the hospital.
We have found little law or comment on the question whether entries representing opinion evidence and made under the Uniform Act are admissible in the absence of a showing that the person making the entries is qualified as an expert. We have concluded that we should adopt the view "that entries in the form of opinions are not admissible if the declarant was not an expert making a statement concerning a matter within his expertise and as to which he would be competent to express an opinion if testifying in person." McCormick on Evidence, 2d Ed., § 307, p. 721; Standard Oil Co. v. Moore, 251 F.2d 188, 214 (9th Cir. 1957).
We turn then to a consideration of this case. We cannot presume that Lloyd Hill would have been "competent to express an opinion if testifying in person." Therefore, the determinative question is whether, under the evidence adduced, he was properly qualified.
It must be shown that a witness has "sufficient experience and acquaintance with the phenomena involved to testify as an expert." Hyman v. Great Atlanta & Pacific Tea Co., 359 Mo. 1097, 1101, 225 S.W.2d 734, 736 (1949). However, a "witness may be competent to testify as an expert though his knowledge touching the question at issue may have been gained by practical experience rather than by scientific study or research." Herman v. American Car & Foundry Co., 245 S.W. 387, 389 (Mo. App.1922). "The authorities generally agree that it would be impracticable to set any absolute standard as to the qualifications of an expert witness; and that of necessity the question must rest largely in *842 the sound discretion of the trial court." State v. Rose, 249 S.W.2d 324, 332 (Mo.banc 1952).
According to the evidence adduced, Lloyd Hill had been employed approximately a year by the Police Department Laboratory as a criminologist. The nature of his work was to examine and compare any clothing and debris that was brought in. He must have had a degree in his particular field. In view of this evidence, we cannot say that the trial court abused its discretion in ruling that Lloyd Hill qualified as an expert. Cf. State v. Taylor, 486 S.W.2d 239 (Mo.1972).
The judgment is affirmed.
MORGAN, C. J., and HENLEY, FINCH and RENDLEN, JJ., concur.
BARDGETT, J., dissents in separate dissenting opinion filed.
SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.
BARDGETT, Judge, dissenting.
I respectfully dissent.
The report of one Lloyd Hill which was admitted in evidence constituted evidence that the defendant was present at the scene of the burglary. It was opinion testimony in that it was the opinion of Hill that the glass fibers and tar material he found on the clothes of the defendant came from the supermarket which was burglarized. This report was admitted in evidence over the objection of defendant that it constituted hearsay and that the maker of the report, Lloyd Hill, was not shown to be an expert. The report was admitted under the Uniform Business Records as Evidence law, secs. 490.660-490.690, RSMo 1969.
The purpose of the Business Records as Evidence law is to allow for the introduction into evidence of documents which would be inadmissible as hearsay except for that law. It obviates the hearsay objection and eliminates the right of the other party to cross-examine the person whose testimony is admitted via the record. There are a number of objections which a party could make to the content of records that are offered in evidence under the act. One of the objections is that the preparer of the record was not expertly qualified, but that objection assumes that the act otherwise applies to the record sought to be admitted in the particular type of proceeding which is taking place. In the instant case the proceeding is a criminal prosecution (not civil) and the purpose of the proffered evidence is to show that the defendant was present at the scene of the robbery.
In order that the issue presented by the contention that the admission of the crime laboratory record can be kept clearly in focus, the following facts which appear in the record must be stated. The defendant testified in this case and claimed that he came upon the scene of the burglary, which was a Fairlane Food store, after the police had arrived. He stated that out of curiosity he walked down a gangway on one side of the food store, saw a Derringer pistol and a roll of coins on the ground and picked them up. At that time he was arrested by one of the officers. Earlier in the case, officer Emil Philipak of the St. Louis police department, evidence technician unit, laboratory division, testified. He stated that he came to the scene and as part of his duties collected certain physical material. He collected tar, tar paper, wood, and insulation from around the hole in the roof of the store, along with other items. He put them in a package and delivered them to the police laboratory. Following the testimony of officer Philipak, Edith Struckhoff, the keeper of the records of the police laboratory, testified. The defendant objected on various grounds, one of which was the testimony would be hearsay; second that he would be deprived of his constitutional right to cross-examine a witness against him; and third that the person who did the test was not qualified as an expert. It seems apparent from the chronology of events in the transcript that defense counsel knew that the prosecution was undertaking to have a certain report admitted in evidence. The prosecutor, in response to defense counsel's objection, and in answer to a court's question, said that he intended, by this witness, to establish that it (the laboratory report) was a business record kept in the ordinary course of business and, *843 as a consequence, satisfied the hearsay objection. He referred the trial court to State v. Taylor, 486 S.W.2d 239 (Mo.1972). The prosecutor also told the court that he would be able to develop from the witness Struckhoff that "she has knowledge of Mr. Hill and what he was and what he did at the lab." The court then answered that under the authority of State v. Taylor, the court was of the opinion that the record was admissible under the Uniform Business Records as Evidence Act (secs. 490.660-490.690, RSMo 1969). The court understood the prosecutor to be saying that the witness had personal knowledge of Mr. Hill, that she would testify as to how long she had known him and the nature of his duties. The examination then continued as is set forth in the principal opinion. The witness knew nothing about how the tests were made, the mode of preparation of the record (report), nothing specific about the qualifications of the author (Hill), and there was no evidence as to why Hill wasn't present in court other than he no longer worked for the police department. She then read from the report those portions that pertained to the clothing of the defendant Rhone and certain items that officer Philipak obtained from the scene. The substance of this report of Mr. Hill, as pointed out in the principal opinion, was that the material taken from the defendant's clothes matched the material found by officer Philipak in or on the burglarized store. The purpose of the testimony was to persuade the jury that the defendant was inside the store and that he did commit the burglary.
Taylor involved a prosecution for burglary and the issue on appeal was whether or not the trial court erred in admitting into evidence a St. Louis police department laboratory report. That report was made by one Cordell Brown who did not appear and testify at trial. The witness at trial was a Mr. Joseph Stevens, a chemist for the St. Louis police department, who testified that the exhibit (report) had been prepared by Mr. Brown in the ordinary course of police department business and that he, Stevens, was the custodian of the document. Brown was employed in Denver, Colorado, at the time of trial. Stevens was permitted to testify from the Brown report that certain wood and paint fragments taken from the clothes of the defendant matched certain paint and wood found at the scene. The court's opinion points out that the purpose of the Uniform Business Records as Evidence law is to enlarge the operation of the common-law rule providing for the admission of business records as an exception to the hearsay rule. After disposing of certain objections, the court then dealt with the contention that Cordell Brown, the author of the record, was not available for cross-examination by saying that that contention is answered by Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022 (1956), which Taylor quoted from, saying at 486 S.W.2d 242-243: "`Objections to such [business] records as hearsay and as depriving a party of the right of cross-examination are, therefore, not effective if the records have been properly qualified under the Uniform Business Records Act. * * * Since the hearsay objection is obviated, we see no reason why a proper expert medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand; to preserve the right of cross-examination intact as to such matters would be to repeal the statute.' We find no merit to appellant's first point."
In my opinion, it was incorrect to use the holding in Allen, a civil case, as the sole authority for overruling the confrontation point made in Taylor, a criminal case. In so doing, the opinion assumes and implies that there are no unique constitutional considerations regarding confrontation which apply to criminal cases but not to civil cases. In Taylor the confrontation point was overruled by ignoring art. I, sec. 18(a), Mo. Const., and the Sixth Amend. of the U.S. Const. The issue was not resolved but simply avoided. The right to cross-examine in civil cases is undoubtedly part of due process of law in a general sense but is not specifically protected by a special provision in either the United States or the Missouri constitutions as it is in criminal cases.
Art. I, sec. 18(a), Mo.Const., provides, inter alia, as follows: "That in criminal prosecutions *844 the accused shall have the right to appear and defend in person and by counsel;. . . to meet the witnesses against him face to face; . . .." This provision in our constitution is the one which constitutionally protects the right of a defendant to cross-examine the witnesses against him in court. I fail to see how a legislative act (Uniform Business Records as Evidence) can be construed so as to justify the abolition of the right of a defendant to confront important witnesses against him and to thereby nullify art. I, sec. 18(a) of our constitution and Amend. 6 of the U.S.Const.
The instant case is a criminal prosecution and, as such, falls squarely within the ambit of art. I, sec. 18(a), Mo.Const., and Amend. 6 of the U.S.Const. The report that was read into evidence is nothing more nor less than the statement of the opinion of Mr. Lloyd Hill. When received in evidence it constitutes testimony of Mr. Hill that, in his opinion, the material found on the clothes worn by the defendant came from the interior of the burglarized store. In this case the defendant admitted being at the scene when the police were there but denied having been in the store. There was other substantial evidence of defendant's guilt (one officer testified he caught the defendant coming down from the roof of the building), but the scientific evidence, is, in my opinion, very powerful in this day and age and was of substantial importance to the prosecution in this case. The credibility of the report depends upon whether the jury believes or doesn't believe Mr. Hill's version which was conveyed to the jury via his ex parte statementthe report. But Mr. Hill is not subject to cross-examination; yet, he did "appear" as a witness against the accused via his report on a very important matterthe presence of the defendant inside the burglarized store. In my opinion, the admission of this report constituted a clear violation of art. I, sec. 18(a), Mo. Const., in that this procedure deprived the defendant of his right of confrontation and cross-examination constitutionally guaranteed in Missouri. There is no question but what Mr. Hill's report, when put in evidence in his absence by way of some other witness, is hearsay. It is hearsay because the person (Hill) who vouches for the accuracy of the information (report) is not present and, therefore, his credibility cannot be tested by cross-examination. That is the essence of the constitutionally protected right of confrontation.
This is not the first instance where the court has been confronted with efforts to get prosecution evidence admitted without subjecting the witness whose information is being offered to cross-examination. In State v. Brookins, 478 S.W.2d 372 (Mo.1972), a conviction was reversed and remanded for error in admitting into evidence for the prosecution a deposition of a witness who placed defendant at the crime scene which deposition was taken by the defendant. The point made by the defendant and sustained by this court was that he was denied his constitutional right of confrontation. The court quoted extensively from Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), in setting forth the importance of the right of cross-examination and confrontation. The court also noted that there had been no attempt to return the witness to Missouri to testify.
In Kansas City v. McCoy, 525 S.W.2d 336 (Mo.banc 1975), a majority of this court upheld the use of closed circuit television by the prosecution in the presentation of evidence that the substance found on defendant was marijuana as against a claim that he was deprived of his confrontation rights. This was a municipal ordinance violation and this court restricted the application of the opinion to matters quasi civil in nature.
I do not cite Brookins and McCoy as business-records-as-evidence cases but because those cases show the recent concern of this court over confrontation and cross-examination rights.
In the instant case, the report of Mr. Hill was not crucial to making a submissible case, but it certainly did constitute substantial and powerful evidence of presence in the building. Yet there is virtually nothing in the record to show any qualification of Hill nor any explanation of why he was not present in court.
The statement from Allen quoted in Taylor that " . . . to preserve the right of *845 cross-examination intact as to such matters would be to repeal the statute", which is used as the basis of overruling the defendant's point of denial of confrontation, is, to say the least, a non sequitur. This court has not hesitated to strike down a statute that contravened the constitution of this state, nor should this court hesitate to restrict the application of a statute when our constitution so requires.
Art. I, sec. 18(a) guarantees a defendant in a criminal prosecution the right to be confronted by the witnesses against him so as to be able to cross-examine them. By restricting the operation of secs. 490.660-490.690 to instances where art. I, sec. 18(a) does not apply, is not repealing secs. 490.660-490.690 at all; it is simply limiting the application of those sections to those witnesses upon which our constitution allows the statute to apply.
Although the language of the Business Records as Evidence law is silent as to whether the law applies to criminal cases as well as civil cases, the courts of Missouri, other states, and the United States, have held that the law does apply in criminal cases. Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971); United States v. Oates, 560 F.2d 45 (2d Cir. 1977), 21 CLR 2269; and cases listed in Lauer, "Business Records as Evidence in Missouri", Wash. U.L.Q.1964, pp. 24, 49. However, the courts must recognize that the confrontation clauses of the 6th Amend., U.S.Const., and the Missouri Constitution, restrict the application of the Business Records as Evidence law in criminal cases because the evidence admitted under it when the declarant or author of the record is not present is obviously hearsay. But the 6th Amend. confrontation clause does not protect against all hearsay.
In Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970), the court said: "It seems apparent that the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this Court has never equated the two, and we decline to do so now."
And, in California v. Green, 399 U.S. 149, 155-156, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970), the court stated:
". . . While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923] (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied."
And at 162, 90 S.Ct. at 1937;
"We have no occasion in the present case to map out a theory of the Confrontation Clause that would determine the validity of all such hearsay `exceptions' permitting the introduction of an absent declarant's statements. For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem."
And also at 161-162, 90 S.Ct. at 1936;
"Finally, we note that none of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial. The concern of most of our cases has been focused on precisely the opposite situationsituations where the statements have been admitted in the absence of the declarant and without any chance to cross-examine him at trial. These situations have arisen through application of a *846 number of traditional `exceptions' to the hearsay rule, which permit the introduction of evidence despite the absence of the declarant usually on the theory that the evidence possesses other indicia of `reliability' and is incapable of being admitted, despite good-faith efforts of the State, in any way that will secure confrontation with the declarant. Such exceptions, dispensing altogether with the literal right to `confrontation' and cross-examination, have been subjected on several occasions to careful scrutiny by this Court."
In Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895), the court, in speaking of the confrontation right said:
"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."
In Commonwealth of Mass. v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281 (1923), the court approved the admission into evidence of certificates of an analyst of the State Department of Health as to the alcoholic content of the liquid. These certificates were admitted pursuant to a specific statute over the defendant's objection that he was deprived of his right to confront witnesses under the Massachusetts and United States constitutions. The court's opinion narrates the history of the confrontation clause and states that such clause did not and does not bar all hearsay. Examples of exceptions existing at the time the constitutional provisions were adopted are dying declarations, reproduction of testimony previously given, and certain public records. The certificates in Slavski were held admissible as public records which were required to be made pursuant to a particular statute. The court, after narrating an extensive list of records admissible in evidence and those held not to be admissible, stated at 140 N.E. at 469:
"The discussion in many of these decisions relates to the general principles of the law of evidence and the interpretation of statutes. The principle which seems fairly deducible from them is that a record of a primary fact made by a public officer in the performance of official duty is, or may be made by legislation, competent prima facie evidence as to the existence of that fact, but that records of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects and involving the exercise of judgment and discretion, expressions of opinion, and making conclusions, are not admissible as evidence as public records. The principle may not be universally applicable and there may be exceptions, but it appears to be available in general as a practical working rule.
"The determination of the percentage of alcohol in liquor at a specified temperature is the ascertainment of a fact by well-recognized scientific processes. Chemical action and measurement in such an analysis do not depend in general upon the quickness of apprehension, retentiveness of memory, temperament, surmises, or conjectures, of the individual. The admission in evidence of the record of such a fact made by a public officer pursuant to statutory obligation would be as likely to be accurate as many of the public records which have been held to be admissible. There would seem to be as little likelihood of variation of result in such an analysis between different chemists as in the observation of the weather, enumeration of proprietors, or the notation of the weights on scales, by other classes of public officers. The general court [legislature] may have felt that it was wise and just with reference to owners of liquor and prospective defendants, as well as to the general public, to provide *847 for an impartial analysis by a public officer, in order that the fact of alcoholic content in liquor seized might be established according to a scientific standard in which confidence might be reposed."
The report in the instant case was not a public record required by statute nor is there any evidence of any scientific standards pursuant to which the material was tested, compared or analyzed. It is simply a report from a man named Hill about whom the trial court knew nothing except that he worked at the police laboratory for about one year and had a degree of some sort in his field. The nature of the report is just the opinion of Mr. Hill purportedly resulting from a comparison of some kind between materials obtained from different sources. And, again, there is no evidence as to why Hill was not present in court.
Other types of similar evidence are comparison of fingerprints and comparison of handwriting. I have found no cases allowing the admission into evidence of records of handwriting experts or records of fingerprint experts, with one exception. In United States v. Lemmons, 527 F.2d 662 (6th Cir. 1976), the following occurred as stated at 665:
"In this case Sgt. Mowery testified that standard laboratory procedure was followed by Sgt. Nichols who originally received the foil packets. Nichols obtained lifts from some of the packets, noted the origin of each of the lifts, determined that the prints were attributable to Lemmons, and then, also following standard laboratory procedure, requested Sgt. Mowery to verify his opinion. Mowery testified at trial that it was his opinion that the latent prints found on the foil packets matched Lemmons' fingerprints. We hold that, under the circumstances, the business records exception to the hearsay rule, 28 U.S.C. sec. 1732, was properly relied upon by the district court for the purpose of admitting Mowery's testimony concerning the fingerprint evidence.
"With respect to appellant's confrontation clause challenge to the admission of this testimony, we hold that because the original examiner was dead and because the trier of fact had a satisfactory basis in Mowery's testimony for evaluating the fingerprint evidence, there was no violation of appellant's rights guaranteed by the Sixth Amendment. See Phillips v. Neil, 452 F.2d 337, 346-47 (6th Cir. 1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972). We find no merit to the chain of custody issue since the laboratory examination that established that Lemmons' fingerprints were on the foil packets had been concluded before the tinfoil and lifts were turned over to another officer who did not appear at the trial."
It is seen from Lemmons that even there the opinion that the fingerprints were from the same person came from the testifying witness Mowery who was subject to cross-examination and it was Mowery's evidence that the court held constituted a satisfactory basis for evaluating the fingerprint evidence.
In the instant case there is absolutely no evidence, in my opinion, which would constitute any satisfactory basis for evaluating the evidence contained in the report. Nor is there any basis shown in the record upon which the trial court could have concluded that such a comparison test and the resulting opinion was so routine as to be virtually immune from differing opinions.
I have a great deal of doubt as to whether this report even constitutes a record of an "act, condition or event" or that it is a "business record" as those terms are used in sec. 490.680, RSMo 1969. It was certainly not relied upon in the regular course of business. It is, in my opinion, simply a memorandum made by a member of the prosecuting team to be utilized solely for the purpose of the criminal case against this defendant. In Kitchen v. Wilson, 335 S.W.2d 38, 44 (Mo.1960), the court said: "`Of course, if it should appear that such records have been made and kept solely for a self-serving purpose of the party offering them in evidence, it would be the duty of a trial court to refuse to admit them.' [citation omitted]."
For all of the above reasons, but particularly because I believe that comparison-type-opinion *848 evidence which is offered for the purpose of placing the defendant at the scene of the crime is tantamount to identification evidence, is given great weight by a jury, is subject to different conclusions and, therefore, is subject to the confrontation clauses of both the United States and Missouri constitutions, I dissent.
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740 F.2d 973
Carmichaelv.Upchurch
83-2609
United States Court of Appeals,Ninth Circuit.
7/20/84
1
D.Ariz.
REVERSED AND REMANDED
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Case: 11-14431 Date Filed: 09/10/2012 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14431
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cr-14025-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILENS BERTRAND,
Defendant-Appellant.
__________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(September 10, 2012)
Before BARKETT, PRYOR and ANDERSON, Circuit Judges
PER CURIAM:
Thomas John Bulter, appointed counsel for Wilens Bertrand in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
Case: 11-14431 Date Filed: 09/10/2012 Page: 2 of 2
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and Bertrand’s convictions and
sentences are AFFIRMED.
2
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377 F.Supp.2d 540 (2005)
UNITED STATES of America, Plaintiff,
v.
Randy Edward HAYES, Defendant.
No. CRIM.1:05 CR 03.
United States District Court, N.D. West Virginia.
June 24, 2005.
Troy N. Giatras, Giatras & Webb, Charleston, WV, for Defendant.
Shawn Angus Morgan, U.S. Attorney's Office Clarksburg, Clarksburg, WV, for Plaintiff.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS SUPERSEDING INDICTMENT
KEELEY, District Judge.
The Court held a hearing on June 15, 2005 to take up the defendant's "Motion to Dismiss Superseding Indictment." For the following reasons, the Court DENIES the defendant's motion (docket no. 56).
I. INTRODUCTION
In 1994, the defendant, Randy Edward Hayes ("Hayes") pled guilty in West Virginia magistrate court to the misdemeanor offense of battery. According to Hayes, the identity of the victim of this crime does not appear in any judicially recognized document from the magistrate court.
On January 4, 2005, a federal grand jury indicted Hayes and charged him with three counts of knowingly possessing firearms after having been convicted of a misdemeanor *541 crime of domestic violence, in violation of Title 18 United States Code, Sections 922(g)(9) and 924(a)(2). Subsequently, on May 4, 2005, the Grand Jury returned a superseding indictment that included a "Notice of Additional Factors" to the three counts alleged in the original indictment. The "Notice of Additional Factors" charges that Hayes has a 1994 battery conviction which meets the definition of a "misdemeanor crime of domestic violence." Hayes has moved to dismiss the superseding indictment, arguing that the Government cannot prove he violated § 922(g)(9).
II. LEGAL ANALYSIS
" `An indictment returned by a legally constituted and unbiased grand jury, ... if valid on its face, is enough to call for trial of the charges on the merits.'" United States v. Wills, 346 F.3d 476, 488 (4th Cir.2003)(quoting United States v. Mills, 995 F.2d 480, 487 (4th Cir.1993)). See Midland Asphalt Corp. v. United States, 489 U.S. 794, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) ("only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried"). Hayes argues that the superseding indictment should be dismissed because, pursuant to Shepard v. U.S., 125 S.Ct. 1254 (2005), the Sixth Amendment bars the introduction of any evidence that the defendant has been convicted of a "misdemeanor crime of domestic violence" outside of the statute of conviction, charging document, plea agreement, plea transcript and any explicit factual finding by the trial judge to which the defendant assented. Thus, he contends, because the victim of his 1994 battery conviction has not been identified in any judicially recognized document from the West Virginia magistrate court, the United States may not proceed with its prosecution.
A. Misdemeanor Crime of Domestic Violence
To secure a conviction under § 922(g)(9), the Government must prove three elements beyond a reasonable doubt: (1) that the accused possessed, shipped, or transported a firearm; (2) that the firearm had traveled in or affected interstate commerce; and (3) that the accused had been convicted of a misdemeanor crime of domestic violence. 18 U.S.C. § 922(g)(9). United States v. Bethurum, 343 F.3d 712, 716 (5th Cir.2003). Whether a predicate offense qualifies as a "misdemeanor crime of domestic violence" pursuant to 18 U.S.C. § 921(a)(33) is a question of law rather than a separate and essential element of a violation of § 922(g)(9) which must be proved to the jury beyond a reasonable doubt. Id. at 716-17; see also United States v. Artis, 132 Fed.Appx. 483, 2005 WL 1253926 (4th Cir.2005) (unpublished).
Section 921(a)(33) defines the term "misdemeanor crime of domestic violence" as an offense that
(i) is a misdemeanor under Federal or State law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
In United States v. Ball, 7 Fed.Appx. 210 (4th Cir.2001) (unpublished), a panel of the Fourth Circuit concluded that this section only requires that the predicate offense have "one element the use or attempted use of physical force; the relationship between the perpetrator and victim need not *542 appear in the formal definition of the predicate offense." See also White v. Dep't of Justice, 328 F.3d 1361 (Fed.Cir.2003). However, the prosecutor is in no way relieved of the burden of proving "to a jury beyond a reasonable doubt that a criminal defendant had a domestic relationship as defined in 921(a)(33)(A)(ii) in order to win a conviction under 992(g)(9)." White, 328 F.3d at 1361.
B. The Sixth Amendment
Under the Sixth Amendment of the United States Constitution,
[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
This provision "gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged," United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995), and "any particular fact that the law makes essential to his punishment." United States v. Booker, ___ U.S. ___, ___-___, 125 S.Ct. 738, 749-50, 160 L.Ed.2d 621 (2005).
In Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the United States Supreme Court held that, in the context of the enhanced sentencing provisions of the Armed Career Criminals Amendment Act of 1986, 18 USC § 924(e), the Sixth Amendment requires a sentencing court to limit itself to examining the statute of conviction, charging document, plea agreement, plea transcript and any explicit factual finding by the trial judge to which the defendant assented in determining whether a prior offense is a felony for enhancement purposes.
Following Shepard, in United States v. Washington, 404 F.3d 834 (4th Cir.2005), the Fourth Circuit found that a defendant's sixth amendment right to a trial by jury had been violated when the district court, at sentencing, relied on facts outside the indictment to determine that his prior state law breaking and entering conviction had been a "crime of violence." Further, in a case with facts similar to this one, the Ninth Circuit held that a district court had plainly erred when it relied on a police report and a plea colloquy to determine that a misdemeanor crime of domestic violence had been committed. The Government had also failed to prove that, under Hawaiian law, a "domestic" relationship existed between the defendant and his victim. United States v. Nobriga, 408 F.3d 1178 (9th Cir.2005).
C. DISCUSSION
Hayes argues that Shepard, Washington and Nobriga stand for the proposition that the only evidence the Government may introduce to prove that he committed a misdemeanor crime of domestic violence is the statute of conviction, charging document, plea agreement, plea transcript and any explicit factual finding by the trial judge to which the defendant assented. The evidentiary limits in those cases, however, apply to judicial fact-finding, not findings of fact made by a jury. They do not apply where, as here, the Government is being put to its burden of proof at trial. White v. Dep't of Justice, 328 F.3d 1361 (Fed.Cir.2003) (holding that prosecutor has "burden to prove to a jury beyond a reasonable doubt that a criminal defendant had a domestic *543 relationship as defined in 921(a)(33)(A)(ii) in order to win a conviction under 992(g)(9)"); see also Ball at 214 (stating that "district court's finding, as a matter of law, that simple battery meets the definition of misdemeanor crime of domestic violence" did not deprive the defendant of the right to have the jury decide every element of the offense because, "after hearing the evidence presented at trial, the jury found that the evidence established that Ball had been convicted of a misdemeanor crime of domestic violence he was convicted of battering his wife in May of 1995".)
Moreover, because the indictment tracks the language of 18 U.S.C. § 922(g)(9) and properly alleges each element of the statute, the indictment is valid on its face. Wills, 346 F.3d at 488. Thus, whether the Government is able to prove that the defendant is guilty of the crime charged is a matter for the jury to decide and is not a proper basis on which to challenge the indictment itself.
III. CONCLUSION
Because the indictment is valid on its face and does not violate the defendant's Sixth Amendment rights, the Court DENIES the defendant's motion (docket no. 56).
It is SO ORDERED.
The Clerk is directed to transmit copies of this Order to the defendant, counsel of record and all appropriate agencies.
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[Cite as Kelm v. Ohio Dept. of Transp., 2013-Ohio-5933.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
DAVID KELM, Admr.
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION, et al.
Defendants
Case No. 2011-09411
Judge Patrick M. McGrath
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
{¶ 1} On January 31, 2013, defendants filed a motion for summary judgment
pursuant to Civ.R. 56(B). On March 28, 2013, plaintiff filed a response with leave of
court. On April 1, 2013, defendants filed a motion for leave to file a reply, which is
GRANTED instanter. Defendants’ motion for summary judgment is now before the
court for a non-oral hearing pursuant to L.C.C.R. 4(D).
{¶ 2} Civ.R. 56(C) states, in part, as follows:
{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show 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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
Case No. 2011-09411 -2- ENTRY
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
{¶ 4} Plaintiff’s claims arise from a motor vehicle accident that occurred on State
Route 60 (SR 60) on the evening of July 12, 2009. Ryan Kelm (Kelm), age 17, was
killed in the accident. Defendant filed the affidavit of Sergeant Joseph Wentworth of the
Ohio State Highway Patrol, who responded to the accident. Wenthworth avers:
{¶ 5} “4. On July 12, 2009, at approximately 10:36 p.m., Ryan Kelm was riding
as a passenger with Brittany Fetter in her 1979 Chevrolet Malibu. They were traveling
north on SR 60, just south of the City of [Vermilion], Ohio. Brittany Fetter’s car was
slowing or stopped to make a left turn onto Darrow Road when her car was rear-ended
by Allison Priess, who was driving her dad’s Chevrolet Silverado truck north on SR 60.
The impact caused Brittany Fetter’s Malibu to go left into the oncoming lane of traffic
and it was struck in the passenger side by the car driven by Harrison Strickler. The
impact caused Ryan Kelm to be trapped in the passenger side of the Malibu that
subsequently caught fire. Ryan Kelm died at the scene as a result of his injuries and
the fire.” (Defendants’ Exhibit A.)
{¶ 6} Plaintiff, David Kelm, brings this action on behalf of both Kelm’s estate and
Kelm’s next of kin, alleging that Ohio Department of Transportation (ODOT) was
negligent. Plaintiff contends that defendants’ negligence includes: “failing to maintain
[SR] 60, failing to keep said roadway in repair and free from nuisance, failing to maintain
signage, failing to maintain visibility of the intersection, and failing to maintain the
aforementioned intersection with a traffic control device.” (Plaintiff’s Complaint, ¶ 9.)
Plaintiff alleges that such negligence was the proximate cause of Kelm’s death.
{¶ 7} In their motion, defendants argue that Priess’s negligence was the sole
proximate cause of Kelm’s injury and death. In response, plaintiff contends that there is
a genuine issue of fact as to the proximate cause of the accident inasmuch as a road
Case No. 2011-09411 -3- ENTRY
sign alerting drivers of the upcoming intersection was hidden by foliage. Additionally,
plaintiff argues that summary judgment is premature because discovery has not yet
been completed and plaintiff seeks to hold any decision on defendants’ motion in
abeyance until the conclusion of discovery.
{¶ 8} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendant owed decedent a duty, that
defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused decedent’s injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d
79, 2003-Ohio-2573, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75,
77 (1984).
{¶ 9} “‘The term “proximate cause,” is often difficult of exact definition as applied
to the facts of a particular case. However, it is generally true that, where an original act
is wrongful or negligent and in a natural and continuous sequence produces a result
which would not have taken place without the act, proximate cause is established, and
the fact that some other act unites with the original act to cause injury does not relieve
the initial offender from liability.’” Strother v. Hutchinson, 67 Ohio St.2d 282, 287
(1981), quoting Clinger v. Duncan, 166 Ohio St. 216, 223 (1957).
{¶ 10} “It is because what constitutes a ‘natural and continuous sequence’ is
insusceptible of determination other than in the context of a particular case that the
issue of proximate cause is ordinarily one for determination by the jury. However,
where reasonable minds could not differ with respect to the matter because the
circumstances clearly indicate an obvious cause and effect relationship, the issue may
be determined as a matter of law.” (Emphasis added.) Ornella v. Robertson, 14 Ohio
St.2d 144, 151 (1968). “‘[W]here no facts are alleged justifying any reasonable
inference that the acts or failure of the defendant constitute the proximate cause of the
injury, there is nothing for the [trier of fact] (to decide), and, as a matter of law, judgment
must be given for the defendant.’” Sullivan v. Heritage Lounge, 10th Dist. No. 04AP-
Case No. 2011-09411 -4- ENTRY
1261, 2005-Ohio-4675, ¶ 33, quoting Stuller v. Price, 10th Dist. No. 03AP-66, 2004-
Ohio-4416, ¶ 70. “It is well settled that the issue of proximate cause is not subject to
speculation and that conjecture as to whether a breach caused the particular damage is
insufficient as a matter of law. If the plaintiff’s quantity or quality of evidence on
proximate cause requires speculation and conjecture to determine the cause of the
event, the defendant is entitled to summary judgment as a matter of law.” (Citations
omitted.) Mills v. Best Western Springdale, 10th Dist. No. 08AP-1022, 2009-Ohio-2901,
¶ 20. Accordingly, summary judgment is appropriate where reasonable minds could not
differ as to the proximate cause.
{¶ 11} In support of their motion for summary judgment, defendants filed the
deposition transcript of Allison Priess from which the following uncontroverted facts are
taken. On July 12, 2009, Priess spent the day riding her horse at a friend’s farm.
Priess remained at the farm for a bonfire with her sister and other friends. At
approximately 10:00 p.m., Priess left the bonfire and began to drive to her mother’s
apartment in Vermilion, where Priess also lived. Priess was driving her father’s
Silverado truck, which she had previously driven several times. Priess stated that as
she was driving north on SR 60, “I realized I had a voicemail, so I checked the voicemail
on my phone, and I listened to it and then I ended the call. And then I looked down to
sit it in the cup holder in the truck and when I looked back up there was a car stopped in
front of me.” (Priess Deposition, pg. 69.) Priess admitted that she was not watching the
road when she put her cellular phone down. (Priess Deposition, pg. 74.) After placing
the phone in the cup holder, Priess looked up and saw Fetter’s automobile
approximately two car lengths in front of her, with its brake lights on. Priess admitted
that she slammed on the brakes but was unable to avoid colliding with Fetter’s vehicle.
{¶ 12} Priess lives near SR 60 and she admitted that she drove that stretch of SR
60 often as it was the route she took to ride her horse as well as the route she took to
visit her father who lived in Wakeman, Ohio. In fact, Priess had driven SR 60 at least
Case No. 2011-09411 -5- ENTRY
once per week since December 2008. Priess testified that she was very familiar with
SR 60 and the area where the accident occurred, including the intersection of SR 60
and Darrow Road, as well as the hill that is south of the intersection.
{¶ 13} Plaintiff cites to the Traffic Crash Report (Defendants’ Exhibit A) wherein
Priess told a responding officer from the State Highway Patrol that she thought the
crash was caused by “how fast the intersection comes up after the hill.” Based on
Priess’s admissions that she was familiar with SR 60, that she knew of the intersection
after the hill, and that she was looking at her phone prior to the accident, plaintiff has
failed to present a genuine issue of material fact as to the proximate cause of the car
accident. The only reasonable conclusion to be drawn from the evidence is that Priess
was not looking at the road immediately prior to striking Fetter’s vehicle and that her
negligence was the proximate cause of Kelm’s death.
{¶ 14} In support of their motion, defendants filed the affidavit of Julie Cichello,
who is employed as the District Traffic Engineer for ODOT District 3. Cichello avers as
follows:
{¶ 15} “2. [SR] 60 is a two-lane road going north and south. Darrow Road is a
two-lane road going east and west. When traveling northbound on SR 60, there is a
downgrade with the crest of the hill located approximately 750 feet south of the
intersection. There is a 36 inch cross-road warning sign and a “Darrow Road” road-
name sign on the crest of that hill warning northbound traffic of the intersection ahead
with Darrow Road.” (Defendants’ Exhibit B.)
{¶ 16} Plaintiff contends that a road sign on SR 60 alerting drivers of the
approaching intersection with Darrow Road was obstructed by foliage at the time of the
July 12, 2009 accident, creating a genuine issue of material fact as to the proximate
cause of the accident. Attached to plaintiff’s response are photographs of SR 60
showing the approach to the intersection with Darrow Road (Plaintiff’s Exhibit B).
However, these photographs have not been properly authenticated pursuant to Civ.R.
Case No. 2011-09411 -6- ENTRY
56(E). While a court may consider evidence that does not comply with Civ.R. 56(C)
when no objection is made on that basis, defendants have objected to the photographs
offered by plaintiff in their reply brief. See State ex rel. Gilmour Realty, Inc. v. City of
Mayfield Heights, 122 Ohio St.3d 260, 2009-Ohio-2871, ¶ 17. The court does not know
when the photographs were taken or whether they fairly and accurately depict SR 60 as
it existed at the time of the accident on July 12, 2009. Therefore, the court is unable to
consider the photographs attached to plaintiff’s response.
{¶ 17} Priess admitted in her deposition that she was familiar with SR 60, that she
knew there was a hill in the road prior to the intersection with Darrow Road, and that
she drove that stretch of SR 60 at least once per week. Additionally, Priess admitted
that she was not looking at the road when she set down her cell phone shortly before
the accident. Inasmuch as Priess was familiar with SR 60 and the intersection with
Darrow Road, the allegedly obstructed road sign would not have provided her with
additional information. Accordingly, it is immaterial whether the road sign was
obstructed. Plaintiff has not presented any evidence to create a genuine issue of
material fact as to the proximate cause of the accident. Construing the facts in a light
most favorable to plaintiff, the court finds that reasonable minds can conclude only that
Preiss’s inattentiveness in failing to watch the roadway was the sole proximate cause of
Kelm’s death. Plaintiff has failed to present any facts justifying a reasonable inference
that the acts or omissions of defendants constitute the proximate cause of the injury.
Accordingly, defendants are entitled to judgment as a matter of law.
{¶ 18} Lastly, plaintiff argues that summary judgment is premature inasmuch as
the parties have not yet completed discovery. Plaintiff claims that this case “should not
be dismissed because [plaintiff] has not yet been able to conduct the discovery
necessary for appropriate prosecution of this case against ODOT. It would be
inappropriate to constrict [plaintiff] to using only discovery in the [connected action],
Case No. 2011-09411 -7- ENTRY
which was limited in scope to the issues therein, to prove its case here, where the
perspective and issues differ.” (Plaintiff’s Response, pg. 6.)
{¶ 19} Defendants filed their motion for summary judgment on January 31, 2013,
and the court set a non-oral hearing on the motion for February 28, 2013. On February
21, 2013, plaintiff filed a motion for continuance of the non-oral hearing in order to
conduct discovery pursuant to Civ.R. 56(F). The court granted plaintiff’s motion, in part,
and allowed plaintiff to respond to the motion for summary judgment by March 28, 2013.
(Mar. 2, 2013 entry.) The court notes that this case was filed in July 2011, that
discovery was allowed to proceed while the case was stayed during the pendency of the
connected action, and that the trial order in this case was issued in August 2012.
{¶ 20} “A party need not wait until discovery is complete to move for summary
judgment. In fact, Civ.R. 56(B) expressly permits a defending party to move for
summary judgment ‘at any time.’ Civ.R. 56(F) reinforces the ability to move for
summary judgment before the completion of discovery by its establishment of a
mechanism by which a non-moving party may request additional time for discovery if
necessary to respond to a motion for summary judgment.” Grenga v. Youngstown State
Univ., 10th Dist. No. 11AP-165, 2011-Ohio-5621, ¶ 21. “Pursuant to Civ.R. 56(F), the
trial court has discretion when considering a motion for a continuance. Where there is a
realistic possibility that genuine issues of material fact will require jury consideration that
discretion should be exercised liberally in favor of a nonmoving party who proposes any
reasonable interval for the production of those materials. The party seeking the
continuance must submit affidavits that set forth a factual basis indicating the reason for
the continuance. Where the reason set forth in the affidavit is contradicted by the
record, then the trial court may properly deny the request. Mere allegations requesting
a continuance or deferral of action for the purpose of discovery are not sufficient.”
(Citations omitted.) Beal Bank S.S.B. v. Means, 8th Dist. No. 96252, 2011-Ohio-5922, ¶
14-16.
Case No. 2011-09411 -8- ENTRY
{¶ 21} To the extent that plaintiff’s response is construed as a motion for
reconsideration of its February 21, 2013 motion for continuance, the court finds that
such argument is without merit. For the reasons stated above, the record shows that
Priess’s negligence was the sole proximate cause of Kelm’s death. Plaintiff’s
allegations that additional time is needed to conduct discovery are insufficient to support
a continuance of the non-oral hearing on defendants’ motion for summary judgment.
The court will not delay a ruling on defendants’ motion for summary judgment when the
only reasonable conclusion to be drawn is that Priess’s negligence was the sole
proximate cause of Kelm’s injuries and death.
{¶ 22} Therefore, construing the facts most strongly in plaintiff’s favor, the court
finds that there is no genuine issue as to any material fact and that defendants are
entitled to judgment as a matter of law. Accordingly, defendants’ motion for summary
judgment is GRANTED and judgment is rendered in favor of defendants. All previously
scheduled events are VACATED. All other pending motions are DENIED as moot.
Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.
_____________________________________
PATRICK M. MCGRATH
Judge
cc:
Abby L. Botnick Craig D. Barclay
Neal E. Shapero Jeanna R. Volp
1350 Euclid Avenue, Suite 1550 William C. Becker
Cleveland, Ohio 44115-1817 Assistant Attorneys General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
Case No. 2011-09411 -9- ENTRY
007
Filed July 19, 2013
Sent to S.C. Reporter April 30, 2014
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
No. 205
The People &c.,
Respondent,
v.
Graham Reid,
Appellant.
Antonio J. Perez-Marques, for appellant.
Richard Nahas, for respondent.
New York Civil Liberties Union, amicus curiae.
SMITH, J.:
The issue here is whether a search of a driver by the
police officer who stopped his car was "incident" to the driver's
- 1 -
- 2 - No. 205
arrest. We hold that it was not, because the record shows that,
although probable cause to arrest the driver existed before the
search, the driver would not have been arrested if the search had
not produced evidence of a crime.
I
Officer Jacob Merino testified at a suppression hearing
that he followed the car defendant was driving while it crossed
double lines into a lane of oncoming traffic, swerved in and out
of its lane without signaling, and made a right turn without
signaling. Merino stopped the car and approached it. He saw
that defendant's eyes were "very watery" and his clothing was
disheveled. There were plastic cups in the car's center console,
and the officer detected an odor of alcohol. Merino asked
defendant if he had been drinking, and received an odd answer:
defendant said he had a beer after getting off work at 4:00 PM --
though his conversation with the officer took place at 5:00 in
the morning. It is not disputed that the officer's observations
gave him probable cause to arrest defendant for driving while
intoxicated (though, as it later turned out, defendant's blood
alcohol level was zero).
Merino asked defendant to step out of the car and
patted him down. In the course of doing so, he found a
switchblade knife in defendant's pocket. Defendant was then
arrested.
In response to questions by the court, Merino gave the
- 2 -
- 3 - No. 205
following testimony, referring to the moment when he asked
defendant to get out of the car:
"THE COURT: At that point, were you going to
arrest him?
"THE WITNESS: No.
"THE COURT: You weren't?
"THE WITNESS: No."
***
"THE COURT: So it's only because you
ultimately found the switchblade that you
arrested him?
"THE WITNESS: Yes, ma'am."
Defendant's motion to suppress the knife was denied on
the ground that the pat-down was "justified as a search incident
to arrest," and defendant pleaded guilty to criminal possession
of a weapon. The Appellate Division affirmed, holding that so
long as probable cause to arrest defendant for driving while
intoxicated existed, it was irrelevant whether Merino
subjectively intended to make such an arrest (People v Reid, 104
AD3d 58 [1st Dept 2013]). A Judge of this Court granted leave to
appeal (21 NY3d 1008 [2013]), and we now reverse.
II
The People make no claim that the pat-down in this case
was justified either by reasonable suspicion that defendant
presented a danger to the officer or by probable cause to believe
contraband would be discovered. The only justification the
People offer for the search is that it was incident to a lawful
- 3 -
- 4 - No. 205
arrest, and exempt for that reason from the general rule that
searches require a warrant (see United States v Robinson, 414 US
218 [1973]). We reject the People's argument.
It is not disputed that, before conducting the search,
Merino could lawfully have arrested defendant for driving while
intoxicated. And it is clear that the search was not unlawful
solely because it preceded the arrest, since the two events were
substantially contemporaneous (see Rawlings v Kentucky, 448 US
98, 111 [1980] ["Where the formal arrest followed quickly on the
heels of the challenged search . . ., we do not believe it
particularly important that the search preceded the arrest rather
than vice versa"]; People Evans, 43 NY2d 160, 166 [1977] ["The
fact that the search precedes the formal arrest is irrelevant as
long as the search and arrest are nearly simultaneous so as to
constitute one event"]). Nor is it decisive that the police
chose to predicate the arrest on the possession of a weapon,
rather than on driving while intoxicated (see Devenpeck v Alford,
543 US 146 [2004]). The problem is that, as Merino testified,
but for the search there would have been no arrest at all.
Where that is true, to say that the search was incident
to the arrest does not make sense. It is irrelevant that,
because probable cause existed, there could have been an arrest
without a search. A search must be incident to an actual arrest,
not just to probable cause that might have led to an arrest, but
did not (People v Evans, 43 NY2d 160, 165 [1977]; People v Erwin,
- 4 -
- 5 - No. 205
42 NY2d 1064, 1065 [1977]).
Knowles v Iowa (525 US 113 [1998]) is controlling here.
In that case, an officer stopped the defendant for speeding, and
had probable cause to arrest him under Iowa law, but chose to
issue him a citation instead. The officer then searched the car,
found marijuana and arrested the defendant. A unanimous Supreme
Court held the search inconsistent with the Fourth Amendment. As
the Court explained, the rationales justifying the "incident to
arrest" exception to the warrant requirement are officer safety
and the preservation of evidence; neither of these provides a
sufficient reason for upholding a search where no arrest is made
(id. at 116-118). The incident to arrest exception is a
"bright-line rule" that does not depend on whether there is a
threat of harm to the officer or destruction of evidence in a
particular case (id. at 118; Robinson, 414 US at 235) -- but the
rule is inapplicable to cases that fall, as does this one,
outside the bright line.
The Appellate Division erred in extending the logic of
Whren v United States (517 US 806 [1996]), People v Robinson (97
NY2d 341 [2001]) and Devenpeck (543 US 146) to the present case.
These cases hold that a stop or arrest is valid where it is
supported by the necessary level of suspicion or probable cause,
whatever the actual motive for the officer's action. But the
"search incident to arrest" doctrine, by its nature, requires
proof that, at the time of the search, an arrest has already
- 5 -
- 6 - No. 205
occurred or is about to occur. Where no arrest has yet taken
place, the officer must have intended to make one if the "search
incident" exception is to be applied.
If a search could be justified by an arrest that, but
for the search, would never have taken place, the Supreme Court
would not have decided Knowles in the way it did. In Knowles as
in this case, there was probable cause to make an arrest, and
there was a search, followed immediately by an arrest. The
problem, in Knowles as here, was that the search caused the
arrest and not the other way around. In Knowles, this fact was
proved by the officer's choice, before conducting the search, not
to arrest defendant for speeding but to issue him a citation.
Here, Officer Merino made a similar choice not to arrest
defendant for drunken driving, a fact proved by the officer's
testimony.
Accordingly, the order of the Appellate Division should
be reversed, defendant's motion to suppress granted, and the
indictment dismissed.
- 6 -
People of the State of New York v Graham Reid
No. 205
READ, J. (DISSENTING):
I would affirm the Appellate Division's order. As an
initial matter, I do not agree that Knowles v Iowa (525 US 113
[1998]) is "controlling here" (majority op at 4). Just this past
spring the United States Supreme Court in Riley v California (134
S Ct 2473 [2014]) stated that it had refused to extend the rule
of United States v Robinson (414 US 218 [1973]) in Knowles
because issuance of a citation does not implicate the concerns
for officer safety and destruction or loss of evidence that
underlie the search incident doctrine (see Riley, 134 S Ct at
2485). Under Iowa law at the time Knowles was decided, the
issuance of a citation in lieu of arrest did not affect the
police officer's authority to conduct an otherwise lawful search.
The Supreme Court was concerned that applying Robinson to cases
involving citations rather than arrests would "untether" the
search incident doctrine from its justifications (see id.).
Unlike Knowles, this case does not involve a search
incident to issuance of a citation. And while the arrest here
occurred after the search, as was the case in Knowles, the
Supreme Court in Rawlings v Kentucky (448 US 98, 111 [1980])
- 1 -
- 2 - No. 205
indicated that "[w]here the formal arrest follow[s] quickly on
the heels of the challenged search," it is not "particularly
important that the search preceded the arrest rather than vice
versa."
The majority principally grounds its decision to
reverse on the police officer's subjective intent -- i.e., the
police officer testified at the suppression hearing that he did
not intend to arrest defendant until he discovered the
switchblade in defendant's pocket. But as the Appellate Division
recognized, the United States Supreme Court has consistently held
that an arresting officer's subjective intent, however
determined, offers no basis for negating an objectively valid
arrest (see 104 AD3d 58, 61-62 [1st Dept 2013], discussing
Devenpeck v Alford, 543 US 146, 125 S Ct 588, 160 L Ed 2d 537
[2004]; see also People v Robinson, 97 NY2d 341 [2001]).
The majority now makes an exception to this long-
established rule, declaring that "[w]here no arrest has yet taken
place, the officer must have intended to make one if the 'search
incident' exception is to be applied" (majority op at 5). I find
no basis for this exception in Supreme Court jurisprudence.
Again, the majority relies on Knowles. But nothing in Knowles
itself or in the Court's subsequent discussion of Knowles in
Riley suggests that Knowles came out the way that it did because
the police officer did not subjectively intend to make an arrest
as evidenced by his issuance of a citation before the search.
- 2 -
- 3 - No. 205
Moreover, interpreting Knowles in this way places it in tension
with Rawlings. If a police officer's subjective motive for
making the arrest is critical, it should be the subject of
factfinding at any suppression hearing where the search occurred
prior to the formal arrest. Yet, the Supreme Court in Rawlings
said that it was not "particularly important that the search
preceded the arrest rather than vice versa."
There is good reason for the Supreme Court's preference
for categorical rules on the subject of a stop or arrest and
search incident to arrest -- i.e., "to provide clear guidance to
law enforcement" (Riley, 134 S Ct at 2491). Otherwise, every
stop or arrest or search incident to arrest would inevitably
devolve into difficult-to-resolve disputes about motive or
whether a threat of harm to the police officer or risk of
destruction of evidence actually existed in the particular case.
The facts here are seemingly clear-cut (i.e., the police
officer's statements at the suppression hearing) and perhaps not
often repeated, which makes a departure from the categorical
rules a tempting prospect. But a categorical rule no longer
serves its purpose if a court decides to ignore it in individual
cases where it seems less fair than particularized factfinding.
* * * * * * * * * * * * * * * * *
Order reversed, defendant's motion to suppress granted and
indictment dismissed. Opinion by Judge Smith. Chief Judge
Lippman and Judges Pigott and Rivera concur. Judge Read dissents
in an opinion. Judge Abdus-Salaam took no part.
Decided December 16, 2014
- 3 -
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278 F.2d 721
Ira TUCKER, Appellant,v.UNITED STATES of America, Appellee.
No. 17993.
United States Court of Appeals Fifth Circuit.
May 27, 1960.
Charles V. Silliman, Gladstone L. Kohloss, Orlando, Fla., for appellant.
Don M. Stichter, Special Atty., Robert F. Nunez, Asst. U. S. Atty., Tampa, Fla., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee.
Before TUTTLE, CAMERON and JONES, Circuit Judges.
PER CURIAM.
1
The appellant was convicted of possession of moonshine liquor. He appeals, saying the evidence is insufficient to sustain a conviction. Across the street from appellant's residence is a "jook", the Moonlight Club, operated by appellant's wife with some help from him. Behind the Club was an open tract supposedly owned by a person identified only as "Pete the Tailor". The appellant and two others were each permitted to keep hogs in separate pens on these premises and each had a nearby cooking machine for preparing food for his hogs. A deputy sheriff found nine gallon jugs of unstamped whiskey near the appellant's cooking machine. The appellant was charged with its possession. The deputy testified that he had taken moonshine "off a lot of customers at the jook." No more than this was adduced to identify the appellant with the liquor. It is not enough. No control or dominion of the contraband by the appellant is shown. Construing the evidence most favorably to the verdict, we conclude it does not sustain a verdict of guilt. The court should have directed an acquittal of the appellant. The judgment and sentence of the district court is reversed and a judgment of acquittal is here rendered for the appellant.
2
Reversed and rendered.
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325 B.R. 851 (2005)
In re METROPOLITAN MORTGAGE & SECURITIES CO., INC., Debtor.
In re Summit Securities, Inc., Debtor.
Metropolitan Investment Securities, Inc., Debtor.
Metropolitan Mortgage & Securities Co., Inc., Summit Securities, Inc., and Bruce Boyden, as Trustee for the Chapter 7 estate of Metropolitan Investment Securities, Inc., Plaintiffs,
v.
Keith Cauvel and Marjorie Cauvel, husband and wife, et al., Defendants.
Bankruptcy No. 04-00757-W11, Bankruptcy No. 04-00756-W1B, Adversary No. 04-00061-W11.
United States Bankruptcy Court, E.D. Washington.
June 20, 2005.
*852 Bruce W Leaverton, Seattle, WA, James B. Stoetzer, Charles R. Ekberg, Julia A. Bahner, Lane Powell, PC, Seattle, WA, for Debtor Metropolitan Mortgage & Securities Co., Inc.
Mary Ellen Gaffney-Brown, Spokane, WA, for Debtor Metropolitan Investment Securities, Inc.
*853 MEMORANDUM DECISION RE: PLAINTIFFS' AND INTERVENING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
PATRICIA C. WILLIAMS, Bankruptcy Judge.
This controversy arises out of two conflicting legal philosophies; one found in insurance law and one found in bankruptcy law. When multiple claims exist against an insurance policy, the distribution scheme is based upon a race with the fleetest claimant winning the policy proceeds. When multiple claims in bankruptcy exist against an insolvent debtor, the distribution scheme is based upon equitable distribution. When the asset to be distributed is insurance proceeds arising from an insurance policy held by the debtor, those very different philosophies may be in conflict.
FACTS
This controversy involves three debtors; the combined Chapter 11 proceedings of Summit Securities, Inc. and Metropolitan Mortgage & Securities Co., Inc., and the Chapter 7 proceeding of Metropolitan Investment Securities, Inc. There are four insurance policies at issue. Two of these policies are referred to as the D & O policies and two of these policies are referred to as the E & O policies. The D & O policies are the National Union policy with limits of $10,000,000 and the excess St. Paul Mercury Insurance policy with limits of $5,000,000. The E & O policies relate to broker members of the National Association of Securities Dealers (hereinafter referred to as "NASD") who dealt with securities issued by the debtors. The E & O policies regarding the NASD brokers are the AIG policy with limits of $10,000,000 and the excess Chubb policy for $2,000,000.
Simplistically, the debtors and their affiliates and subsidiaries are named insureds under all the policies. The D & O policies insure payment of claims against the debtors and their affiliates, payment of claims made against the debtors' respective directors and officers, and payment to the debtors for any indemnification claims which may be made against them by their directors and officers. The debtors as named insureds also have the right to seek payment of certain types of claims, such as loss caused by negligent acts of officers. Again, very simplistically, the same is true of the E & O policies which also include the NASD brokers as insureds. There are several lawsuits pending in various state and federal courts on behalf of hundreds of plaintiffs against the directors and officers alleging violations of securities law, fraud and similar wrongful acts. There are five lawsuits pending against various directors and officers and affiliates alleging wrongful conduct as to certain employees of the debtors. There are dozens of lawsuits and NASD arbitration proceedings pending on behalf of hundreds of plaintiffs against dozens of NASD brokers associated with the debtors which allege violation of securities law and similar wrongful acts. Additional claims are known to exist for which no litigation or arbitration has yet been commenced.
Under the terms of the policies, the directors and officers and NASD brokers and other insured defendants are entitled to have their costs of defense paid by the insurance carriers from the policy limits. The policies are commonly referred to as "wasting policies" or "burning candle policies," meaning that as the litigation continues, the amount available to a successful plaintiff under the policy is being reduced by the costs of defense of the litigation. Because of the number of lawsuits and arbitrations and the number of third-parties seeking recovery, it is quite likely that *854 the limits of these policies will be exhausted before the majority of the claims are fully litigated. Earlier in the bankruptcy cases, a motion to lift stay was filed requesting that policy proceeds be distributed to reimburse the costs incurred by certain non-debtor co-insureds in defending against third-party claims. The question of applicability of the automatic stay was reserved for determination in this adversary proceeding. With Court permission, a procedure was developed whereby defendants' counsel circulate and file with the Bankruptcy Court requests for reimbursement under the policies before submitting the same to the insurance carriers for payment. When last reviewed, the filings indicated that in the course of about 14 months nearly $2,300,000 has been sought as costs of defense. The amount currently reflected by the pleadings is relatively low as an agreement was reached among the Creditors' Committees in the Chapter 11s, the Chapter 7 Trustee and the defendants' counsel and most of the third-party claimants to "stand still" in the pending litigation and arbitrations.
The debtors filed this action seeking an injunction to stay all litigation and arbitration on March 22, 2004. As the litigation and arbitration proceedings proliferated, so has the number of parties to the adversary proceeding. Objections to the granting of injunctive relief were filed at various times by various claimants, but since many claimants then agreed to the "stand still," the request for injunctive relief was not noted for hearing until March 8, 2005. At that time, various counsel for various claimants indicated that they had initially objected to the preliminary injunction but had withdrawn their objections as they had become persuaded that it was in their clients' best interest to pursue the possibility of a "global settlement" before policy limits were significantly reduced or exhausted by the costs of defending the numerous claims and payment of the first claims ripe for resolution.
The efforts of the parties during the past several months have been primarily directed at negotiating a so-called global settlement which would require the insurance carriers to pay the policy limits with various groups of claimants sharing in the policy proceeds on a negotiated basis. At the time of the first hearing for preliminary injunction in March of 2005, counsel for debtors reported, and some claimants' counsel confirmed, that significant progress had been made in negotiating a global settlement and they were cautiously optimistic a settlement would result, although not all claimants had participated in the process.
The March hearing resulted in the imposition of a preliminary injunction scheduled to expire on June 7, 2005. All litigation by third-party claimants against the named insureds under the D & O and E & O policies was enjoined as well as litigation among the named insureds. The question of the applicability of the automatic stay was not addressed due to the imposition of the preliminary injunction. Upon expiration of the preliminary injunction on June 7, 2005, another hearing was held to consider the debtors' position that the automatic stay precludes the prosecution of claims against the policy proceeds and to determine if the circumstances regarding a global settlement had changed. As of that hearing, it was apparent that no global settlement would occur.
The pending request of the debtors is a determination that the proceeds of the insurance policies are property of the estate and that the suits and arbitration proceedings are stayed under 11 U.S.C. § 362(a). If the automatic stay is inapplicable, the debtors alternatively argue the preliminary injunction entered on March 29, 2005 *855 should be extended. The insurance carriers have indicated that an interpleader will be commenced and policy proceeds paid into the registry of the Court. There may be some issues regarding policy coverage for particular types of claims or for specific claims, but the total pending claims are approximately $600,000,000. Those claims for which no coverage issues exist far exceed the total policy limits. To date, no such interpleader has been filed.
Metropolitan Mortgage and Summit have filed a joint liquidating plan. The plan, as proposed, establishes a liquidation trust. The liquidation trustee would be appointed to pursue some unrelated suits on behalf of the debtors as well as the debtors' claims under these policies, i.e., claims the estates may directly hold against the directors and officers and other insureds as well as claims against the policies for the costs of indemnifying directors and officers, brokers and other insureds. The three debtors also hold claims for reimbursement from the proceeds for expenses actually incurred by the estates for responding to the investigations by various securities law agencies and for costs incurred due to unrelated officer negligence. Those claims for reimbursement of out-of-pocket costs total approximately $3,400,000. Arguably, the policy proceeds would be available to pay claims held by the debtors thus resulting in additional funds to pay all creditors.
ISSUE
Are the policy proceeds property of the estate?
ANALYSIS
11 U.S.C. § 362(a)(3) precludes "any act to obtain possession of property of the estate." Property of the estate is defined in § 541 as "all legal or equitable interests of the debtor in property (wherever located) as of the commencement of the case." 11 U.S.C. § 541(a)(1). It includes intangible or contingent interests of the debtor as well as intangible property itself. If these insurance proceeds are property of the bankruptcy estates, the litigation and arbitration proceedings, to the extent they seek monetary judgments or reach monetary settlements payable from the proceeds, would be acts to obtain property of the estate. To the extent the third-party defendants in the litigation and arbitration proceedings request reimbursement of defense costs from the insurance proceeds, such requests would be acts to obtain property of the estate.
The applicability of § 541 to proceeds of insurance policies is not yet a settled question in the Ninth Circuit. It has been determined that insurance policies are property of the estate. In In re Minoco Group of Companies, Ltd., 799 F.2d 517 (9th Cir.1986), the court held that D & O insurance policies were property of the estate. The court reasoned that since the estate was worth more with the policies than without them, they constituted property of the estate. The policies insured the debtor for any indemnity claims against it by its directors and officers as well as insuring the directors and officers against third-party claims. The court concluded that the all-inclusive purpose of § 541(a) required all interests of the debtor in property, even interests which were contingent or not yet realized, to become subject to the reorganization process.
In 1990, in In re Circle K Corp., 121 B.R. 257 (Bankr.D.Ariz.1990), the court, relying on Minoco, held that D & O insurance policies and proceeds were property of the estate. The court reasoned that since the policies at issue were indemnity policies and not just liability policies, the debtor had a right to the proceeds. Consistent with Minoco, the estate was worth *856 more with the policies and proceeds than without them. Those policies were also "wasting" or "burning candle" policies. As the defense costs exhaust the policy limits, the estate asset was depleted which increased the debtor's exposure to third-party claims and decreased realization of the debtor's claims against the proceeds. Thus, the court concluded that the debtor had an interest in the proceeds rendering the proceeds property of the estate as defined in 11 U.S.C. § 541.
In 1997, the Bankruptcy Appellate Panel, in In re Spaulding Composites Co., Inc., 207 B.R. 899 (9th Cir. BAP 1997), concluded that certain insurance policies themselves were property of the estate but that the proceeds were not. The insurance company had brought a state court declaratory judgment action seeking to determine rights of non-debtor co-insureds in the policy proceeds. The precise issue presented was whether that declaratory judgment action violated the automatic stay as the debtor was also an insured under the policy. The conclusion was that the commencement of the state court action did not violate the stay. That conclusion was based not only upon the fact the debtor was not named in the declaratory judgment action, but also upon the failure to demonstrate that the insurance company's payment of claims brought by the non-debtor insureds would impair the insurance company's ability to satisfy its obligations to the debtor under the policy. In the present controversy, the evidence is overwhelming that satisfaction of the insurance companies' duty to pay claims brought against non-debtor co-insureds, including satisfaction of the defense costs being incurred by the co-insureds, will render it impossible to satisfy the claims against the proceeds held by the debtors.
It is the general rule that the automatic stay of § 362(a)(1) and (a)(3) is available only to debtors and not to third-party defendants or co-defendants. This general principle has been extended by some courts to situations where a potential judgment against the individual insured under a D & O policy may effectively be a judgment against the debtor due to existing indemnification provisions contained within the policies. See A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); In re Eagle-Picher Industries, Inc., 963 F.2d 855 (6th Cir.1992). Similarly, certain courts have extended the protection of the automatic stay in circumstances where collection actions against non-debtor parties creates an "identity of interests" with the debtor such that a judgment against non-debtor defendants becomes in effect, a claim against the debtor for indemnification. In re Family Health Services, Inc., 105 B.R. 937 (Bankr.C.D.Cal.1989). See also, A.H. Robins Co., supra. Finally, § 362(a)(3) has been used to stay actions against a debtor's partners to prevent parties from proceeding in an action that indirectly affects the debtor's property interest or attempts to obtain possession of property of the estate. In re Bialac, 712 F.2d 426 (9th Cir.1983). That decision involved a debtor's undivided one-sixth interest in a promissory note. The analysis focused on the debtor's right to redeem the note after the creditor foreclosed on the five-sixth interest in the note held by non-debtors. The conclusion was that the right to redeem, although intangible and of unknown value, constituted property of the estate.
The debtors, their affiliates, subsidiaries, officers and directors and the NASD brokers are named insureds under the policies. As such, each has the right to utilize the policy proceeds to satisfy claims by third-party claimants. The debtors also have the right to utilize the *857 policy proceeds to satisfy claims the debtors may have against co-insureds and to satisfy requests for indemnification made by the directors and officers. The debtors also have a non-derivative right to receive proceeds to compensate for the costs of responding to certain investigations by regulatory agencies. Realization of the debtors' legal interests is contingent upon the debtors meeting conditions established by the policy for the bringing of claims and those legal interests are not yet in the form of monetary recovery. However, § 541 renders a legal interest in property, property of the estate, and does not require that legal interest to be reduced to a monetary amount nor to be absolute and non-contingent.
CONCLUSION
Lacking controlling precedent on the issue of whether or not the policies and proceeds at issue in this case are property of the estate, this Court is inclined to follow the analysis found in In re Circle K Corp. It is this Court's opinion that not only are the insurance policies property of the estate, but that the proceeds are also property of the estate because the estate is worth more with them than without them and because the debtors hold claims payable from the proceeds.
The debtors and all other insureds have undivided, unliquidated interests in the identical asset, i.e., the policy proceeds. Continued diminution of those proceeds affects the debtors' interests in and rights to recover the proceeds. The stay prevents any action which affects the debtors' interests in the proceeds. This is consistent with and necessary to promote the fundamental bankruptcy principles of preserving estate property and ensuring ratable distribution to creditors.
Under principles of insurance law, all entities or persons having an interest in the policy proceeds would engage in a race to judgment or settlement with the fleetest claimants realizing upon their interest while the slower claimants were deprived of their interest. Such a result is contrary to the fundamental principle of bankruptcy law that all of the debtors' interests in property are to be equitably distributed. The problem is worsened in this case by the fact that the cost of determining each claimant's interest in the policy proceeds may deplete the proceeds before all but the very fleetest claimants recover.
Therefore, this Court concludes that the debtors hold legal interests in the insurance proceeds of the four policies described above which interests are of value to the estate. The proceeds are property of the debtors' estates and are subject to the protections afforded by 11 U.S.C. §§ 362(a)(3). This renders it unnecessary to address the alternative argument that if the proceeds are not property of the estate and the automatic stay is therefore inapplicable, an injunction should be entered to stay prosecution of the various claims against the proceeds.
Finally, there is a fifth insurance policy also at issue. It is a policy issued by Arch Insurance Company which provides coverage to approximately five NASD brokers who are specifically named as insureds under that policy. The amount of coverage is in dispute as the insurance company maintains that coverage is limited to a maximum of $2 million whereas the NASD brokers maintain the coverage is for a maximum of $2 million for each insured. None of the debtors, their affiliates or subsidiaries are named insured under the Arch policy. None of the debtors have any right or claim to any of the policy proceeds. The debtors hold no legal interest in the proceeds of the Arch policy. Consequently, the Arch policy *858 does not constitute property of the estate.[1]
NOTES
[1] The five NASD brokers insured under the ARCH policy are among the dozens of NASD brokers covered by the other E & O policies. The Arch policy imposes a duty to defend on the insurance company but it is not a "wasting" or "burning candle" policy as the costs of defense do not reduce the proceeds available to pay claims. The evidence indicates that Arch maintains that half of the costs of defense incurred under the Arch policy should be paid from the proceeds of the other E & O policies which constitute property of the estate. This opinion does not address that issue. Distribution of the E & O policy proceeds, for payment of claims or costs of defense or for any reason, must await later determination.
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Case: 13-10307 Document: 00512595016 Page: 1 Date Filed: 04/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10307 April 14, 2014
Summary Calendar
Lyle W. Cayce
Clerk
DOMINGO ROBLEDO,
Plaintiff-Appellant
v.
BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice; RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; BILL PIERCE,
Director of Chaplaincy, Texas Department of Criminal Justice, Correctional
Institutions Division; WALLACE NELSON, Regional Chaplain, Texas
Department of Criminal Justice Region VI; GILBERT CAMPUZANO, Regional
Chaplain, Texas Department of Criminal Justice Region VI; LINDA RICHEY,
Regional Assistant, Region VI; B. ARMSTRONG, Assistant Regional Director,
Region VI; ARCHIE SCARBOROUGH, Robertson Unit, Chaplain; EDWARD
L. WHEELER, Senior Warden; RONALD P. WILLIAMS, Captain of Security;
RICHARD G. LEAL, Assistant Warden; JIMMY O. BETCHER, Assistant
Warden,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:12-CV-61
Case: 13-10307 Document: 00512595016 Page: 2 Date Filed: 04/14/2014
No. 13-10307
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM: *
Domingo Robledo, Texas prisoner # 561997, seeks leave to proceed in
forma pauperis (IFP) to appeal the dismissal of his civil rights complaint. By
moving for leave to proceed IFP, Robledo is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).
Robledo does not address the district court’s dismissal of his claims alleging
the deprivation of the free exercise of religion and retaliation, the dismissal of
his claim regarding the application of the prison fire safety code, or the
dismissal of his claims for monetary damages against the defendants in their
official capacities. Because Robledo has not briefed these issues, they are
deemed abandoned. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
Robledo argues that the district court abused its discretion in dismissing
as frivolous his claim that he was deprived of participating in weekly Christian
worship services for months in violation of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, and he further
challenges the district court’s dismissal of his claim arising under the Texas
Religious Freedom Restoration Act (TRFRA). Based on the facts as alleged by
Robledo in his complaint and at the Spears 1 hearing, Robledo’s RLUIPA claim
is not based upon an indisputably meritless legal theory, and his factual
contentions are not clearly baseless. See Neitzke v. Williams, 490 U.S. 319, 327
(1989); see also Mayfield v. Texas Department of Criminal Justice, 529 F.3d
* 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.
1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Case: 13-10307 Document: 00512595016 Page: 3 Date Filed: 04/14/2014
No. 13-10307
599, 614-17 (5th Cir. 2008). The “appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Further, Robledo
has demonstrated that he is financially eligible to proceed IFP. See Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). Therefore, Robledo’s motion for leave
to proceed IFP is granted. See Baugh, 117 F.3d at 202. His motion to file a
supplemental brief in support of his IFP motion also is granted. We dispense
with further briefing.
Thus, we vacate in part the district court’s dismissal as frivolous of
Robledo’s RLUIPA claim and remand for further proceedings. The district
court’s decision declining to exercise supplemental jurisdiction over Robledo’s
TRFRA claim rested in part on the erroneous conclusion that Robledo’s
RLUIPA claim was frivolous; therefore we vacate the district court’s ruling on
this issue and remand for further proceedings. We express no view on how the
district court should rule on remand. To the extent that the district court’s
judgment dismissed Robledo’s official-capacity claims for damages as barred
by the Eleventh Amendment and dismissed as frivolous his free exercise of
religion claim, his retaliation claim, and his claim concerning the application
of the fire safety code, we affirm.
IFP GRANTED; MOTION TO FILE SUPPLEMENTAL BRIEF
GRANTED; AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
3
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552 F.2d 368
Lopezv.U. S.*
No. 76-4319
United States Court of Appeals, Fifth Circuit
5/5/77
1
W.D.Tex.
2
AFFIRMED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409
***
Opinion contains citation(s) or special notations
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199 Kan. 508 (1967)
430 P.2d 246
THE STATE OF KANSAS, Appellee,
v.
ROBERT M. WALKER, Appellant.
No. 44,625
Supreme Court of Kansas.
Opinion filed July 17, 1967.
Larry Kirby, of Wichita, argued the cause, and Russell Shultz, of Wichita, was with him on the brief for appellant.
Donald C. Vosburgh, County Attorney, of Fredonia, argued the cause, and Robert C. Londerholm, Attorney General, was with him on the brief for appellee.
The opinion of the court was delivered by
FATZER, J.:
The defendant, Robert M. Walker, was convicted by a jury on three counts charging him with driving a motor vehicle upon a highway (1) "without first obtaining a valid operator's or chauffeur's license," as required by K.S.A. 8-235; (2) "in such a manner as to indicate a willful and wanton disregard for the safety of persons or property," in violation of K.S.A. 8-531, and (3) "while under the influence of intoxicating liquor," contrary to K.S.A. 8-530. The defendant's motion for a new trial was overruled, and he has appealed.
The facts giving rise to the arrest and conviction of the defendant, follow: Officer Walter Wiltse, of the Kansas Highway Patrol, was regularly on duty, in a parked position four miles west of highway junction K-96 and K-39, in Wilson County. He received a radio report and proceeded eastbound on K-96 where he observed a green 1959 Mercury sedan, the defendant's car. There were four or five cars between him and the defendant's car, all traveling east. Officer Wiltse passed the four or five cars and caught up with the defendant and saw his car cross the center line of the *509 highway several times. On one particular occasion, the defendant's car crossed the center line on an incline or hill and in a "no passing" zone.
September 4, 1965, was Saturday of Labor Day weekend, and the traffic was fairly heavy; also, the surrounding terrain was "hilly." The Mercury was occupied by the defendant and his wife; the defendant was driving and his wife was sitting in the front seat with the window down, her right arm resting on the door and she was holding a drinking glass in her right hand. As Officer Wiltse put the "red light" on, she immediately emptied the contents of the glass out the window. The defendant slowly brought his car to a stop.
After both cars came to a stop, the defendant and Wiltse got out and approached one another behind the defendant's car. Wiltse testified at the trial that, at that time, the defendant was very unsteady on his feet and had a very strong odor of alcohol on his breath. The following exchange of words took place.
The defendant first asked in a very belligerent manner, "[w]hat do you want?" Wiltse told him he would like to see his driver's license and the defendant replied he had left the license at Fall River, Kansas. Wiltse then asked him whether he had any identification and the defendant arrogantly replied that he did not have to show him anything. Wiltse then advised the defendant he was under arrest for driving while under the influence of alcohol and advised him to stay put (to remain behind the defendant's car).
As Wiltse stuck his head in the driver's side of the defendant's car to search for an open container of liquor, the defendant ran up and grabbed Wiltse by the shoulder, pulled him out of the car, and asked him if he had a search warrant. The defendant was then forcibly placed under arrest and put in the patrol car. Wiltse continued his search and asked the defendant's wife if she had a driver's license. She showed him her license and said she did not have any identification for her husband. Wiltse testified that although she had a strong odor of alcohol on her breath, she was not "out of the way" and he allowed her to drive the Mercury to Fredonia.
Wiltse drove the defendant to Fredonia in the highway patrol car, and Mrs. Walker followed. En route to the county jail at Fredonia, Wiltse asked the defendant for his name again and again, but he refused to answer. On one occasion the defendant said, "[w]ell, just *510 say it's John Doe." Wiltse also asked whether he would take a blood alcohol test, and the defendant clearly stated, "[n]o, I won't take a blood test."
Both cars arrived at the county jail about the same time. As the defendant was being escorted from the patrol car to the county jail, he told his wife to get an attorney but to stay in the vicinity as he was going to need a witness. Mrs. Walker was advised she could not enter the jail with her husband since she was not under arrest. Because she attempted to block a jail doorway, Wiltse forcibly set Mrs. Walker aside and took the defendant inside the jail. The defendant was seated inside the jail and his wife remained at the entrance of the jail. The Walkers were "hollering" at one another and there was quite a bit of disturbance. On several occasions, the defendant jumped up and attempted to go to the jail door where his wife was. Wiltse told the defendant over and over to remain seated, and on one occasion, grabbed the defendant, tore his shirt, and forced him to sit down. Sheriff Hubert Harris, of Wilson County, was present during the latter part of the ruckus.
After having brought the defendant inside the jail, and while trying to keep him seated, Wiltse advised him that he was going to ask him some questions and that they would be used against him in court. The defendant was again asked for his name. He replied, "John Doe." In response to other questions, he either refused to answer, or replied, "not applicable" or "no comment." The defendant was also asked to take some coordination tests and to submit to a blood alcohol test. The county attorney's brief stipulates to the fact that the defendant had agreed to take any of the so-called sobriety tests so long as he could have an independent witness present, but because Wiltse refused to allow the presence of an independent witness, no test was ever given.
On March 12, 1966, the defendant was brought to trial. He pleaded not guilty, and a jury was duly impaneled. On the same day, he was found guilty as charged. The court sentenced the defendant to the county jail for 90 days, and ordered him to pay a fine of $300.
The defendant first contends there was not sufficient evidence to sustain a conviction of the charges made in Count I and Count II of the information. Count I charged the defendant with driving without a valid operator's or chauffeur's license, and Count II charged him with what is commonly known as reckless driving.
*511 In determining whether there was sufficient evidence to sustain the verdict rendered, this court will consider only that evidence supporting or tending to support the findings made (State v. Jeffers, 161 Kan. 769, 173 P.2d 245; State v. Gates, 196 Kan. 216, 410 P.2d 264), and will not review or weigh conflicting evidence. (State v. Blakesley, 43 Kan. 250, 23 Pac. 570; State v. McCoy, 160 Kan. 150, 160 P.2d 238.) In a criminal appeal, this court examines the evidence only to ascertain whether there is an entire absence of substantial evidence from which the jury might reasonably draw an inference of guilt. (State v. McCoy, supra; State v. Shaw, 195 Kan. 677, 408 P.2d 650), and a verdict of guilty will not be disturbed if supported by substantial competent evidence.
The defendent contends the state failed to establish a prima facie case that he did not have a valid operator's or chauffeur's license, as required by K.S.A. 8-235. The parties concede the state was required to prove two essential elements of the crime charged: First, that the defendant was in fact operating a motor vehicle upon a public highway in Wilson County, and second, that while so operating the motor vehicle he did no without "first obtaining a valid operator's or chauffeur's license." The only evidence the state introduced was Wiltse's testimony that the defendant did not have a driver's license in possession. That evidence did not exclude every reasonable hypothesis the defendant had not been issued a valid operator's license by the State Motor Vehicle Department for the period during which he was driving. He was not charged with violating K.S.A. 8-244, which provides that "[e]very licensee shall have his operator's or chauffeur's license in his immediate possession at all times when operating a motor vehicle ..." and that no person charged with violating the section shall be convicted if he produces in court an operator's or chauffeur's license theretofore issued to him and valid at the time of his arrest. We are of the opinion the state's evidence was insufficient to warrant the defendant's conviction of the charges contained in Count I, and the district court erred in overruling his motion for discharge. See, State v. Harkness, 189 Kan. 581, 370 P.2d 100.
The defendant contends there was no evidence supporting the probability of an accident or any imminence of injury to persons or property, or any evidence to support the proposition he believed or had cause to believe his driving on the highway, under the facts and circumstances, might cause injury. The point is not well taken. There need be no accident in order for there to be reckless driving.
*512 In Elliott v. Peters, 163 Kan. 631, 185 P.2d 139, this court said recklessness is an indifference whether wrong is done or not an indifference to the rights of others. See, K.P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730, and Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573. In State v. Sullivan, 58 N.D. 732, 227 N.W. 230, it was said there may be reckless driving without injury to others. Moreover, Wiltse's testimony that the defendant's automobile crossed the center line four or five times and went up a hill in a "no passing" zone on the wrong side of the highway for about 75 yards where the terrain was hilly and the traffic was heavy, and the defendant was under the influence of intoxicating liquor (State v. Sullivan, supra; State v. Sisneros, 42 N.M. 500, 82 P.2d 74; 7 Am.Jur.2d, Automobiles and Highway Traffic, § 264, p. 816), tended to disclose the defendant's conduct was such as to evince disregard or indifference to consequences, and was sufficient for the jury to reasonably draw an inference of guilt.
In State v. Brooks, 187 Kan. 46, 354 P.2d 89, a semi-trailer truck was northbound and had crossed over into the southbound lane of traffic, resulting in a collision between the truck and an oncoming car. The defendant contended the evidence was not sufficient to sustain a conviction of fourth degree manslaughter. In affirming the conviction, it was said the evidence was sufficient to prove a violation of G.S. 1949, 8-537, regulating driving upon the right side of highway, and of G.S. 1949, 8-431, now K.S.A. 8-531, relating to reckless driving. See, also Hickert v. Wright, 182 Kan. 100, 319 P.2d 152.
In State v. Sullivan, supra, the defendant was prosecuted for reckless driving. The statute provided that any person who drives any vehicle upon a highway carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others, so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving. It was said that reckless driving was to be based upon the violation of the rules of the road including the failure to stay upon the right side of the righway as well as the failure to maintain a careful and prudent speed. While one may observe the speed limit, he may still be guilty of reckless driving by constantly zigzagging from one side of the highway to the other thus endangering the lives and property of others.
The defendant further contends the district court erred in allowing the prosecution to present testimony regarding conversations *513 and answers resulting from the custodial interrogation without first advising the defendant of his constitutional rights, and cites and relies upon Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The Miranda decision was rendered on June 13, 1966, four months after the trial of the instant case. In Johnson v. New Jersey, 384 U.S. 719, 16 L.Ed.2d 882, 86 S.Ct. 1772, it was held the Miranda decision was applicable only to those cases where the trial began after the date of the decision. See, also, Addington v. State, 198 Kan. 228, 424 P.2d 871. Moreover, the record discloses the defendant was well aware of his rights as evidenced by his complete and continued refusal to answer any questions asked by the interrogating officer. The only answer he made to any question was to finally give his proper name. That, in itself, is no violation of any constitutional right.
Likewise, Wiltse's request that the defendant submit to a blood alcohol test is not a violation of his constitutional rights. In Schmerber v. California, 384 U.S. 757, 16 L.Ed. 908, 86 S.Ct. 1826, the Supreme Court of the United States reaffirmed the Breithaupt case (Breithaupt v. Abram, 352 U.S. 432, 1 L.Ed.2d 448, 77 S.Ct. 408, holding the taking of blood from an unconscious defendant to be constitutional), and said there was no violation of the privilege against self-incrimination, or a violation of search and seizure, to compel an accused to submit to a blood alcohol test despite his refusal, on the advice of counsel, to take the test. It was also said the taking of the blood alcohol test was not a denial of the right to counsel.
Other contentions made by the defendant present no justiciable questions and its is unnecessary to extend this opinion by discussing them.
The judgment of the district court is reversed with respect to the defendant's conviction on Count I, and the sentence and fine imposed thereunder are directed to be set aside. The defendant's conviction on the charges contained in Counts II and III is affirmed in all respects.
It is so ordered.
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175 Cal.App.3d 973 (1985)
221 Cal. Rptr. 97
BRENDA E. CHALUP, Plaintiff and Appellant,
v.
ASPEN MINE COMPANY et al., Defendants and Respondents.
Docket No. D002213.
Court of Appeals of California, Fourth District, Division One.
December 18, 1985.
*974 COUNSEL
Louisa S. Porter and Mark V. Caruana for Plaintiff and Appellant.
Donald H. Glaser, Richard E. Shower, Higgs, Fletcher & Mack and Thomas R. Mitchell for Defendants and Respondents.
OPINION
KINTNER, J.[*]
FACTS
On April 18, 1980, 18-year-old Brenda Chalup (Chalup) went with her date to the Aspen Mine Company, a San Diego restaurant and bar. Chalup sat at the bar and ordered and drank between five and seven vodka gimlets. Chalup was intoxicated when she left the Aspen Mine Company. Upon *975 leaving, she ran across the street against the traffic signal and into the path of a car, sustaining injuries.
Chalup sued the Aspen Mine Company and its agents for negligence in serving her alcoholic beverages. Chalup alleged as a proximate result of this negligence, she became intoxicated and incapable of exercising reasonable care for her own safety, thereby causing her injuries. The court granted summary judgment in favor of Aspen Mine Company and its agents. Chalup appeals. We reverse.
DISCUSSION
(1) The sole issue on appeal is whether a cause of action exists under Business and Professions Code section 25602.1[1] for a minor patron against a licensed purveyor of alcohol for injuries suffered by the minor as a proximate result of the sale of the alcoholic beverage to her while she was obviously intoxicated.
We conclude the injured minor who buys liquor at the licensed cocktail lounge while she is obviously intoxicated may state a cause of action under section 25602.1. Therefore, summary judgment for defendant Aspen Mine Company based on section 25602 and Civil Code section 1714 was improper.[2]
Under negligence law, purveyors of liquor had been immune from liability, until a string of cases in the 1970's held these purveyors could be liable under a negligence theory when they provided liquor to people who then caused injury to themselves or third parties. The providing of liquor could be the proximate cause of the injuries, and the injuries could be the foreseeable result of the providing of the liquor. (Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal. Rptr. 623, 486 P.2d 151]; Bernhard v. Harrah's Club (1976) 16 Cal.3d 313 [128 Cal. Rptr. 215, 546 P.2d 719]; Coulter v. Superior Court (1978) 21 Cal.3d 144 [145 Cal. Rptr. 534, 577 P.2d 669].)
In 1978 the Legislature granted immunity to the purveyor of liquor in section 25602 and Civil Code section 1714, subdivisions (b) and (c), specifically *976 abrogating the holdings in cases such as Vesely, Bernhard and Coulter, except as we shall see later under section 25602.1.
Section 25602 states:
"(a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.
"(b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.
"(c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely v. Sager (5 Cal.3d 153), Bernhard v. Harrah's Club (16 Cal.3d 313) and Coulter v. Superior Court (21 Cal.3d 144) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person."
Civil Code section 1714, subdivision (a) is the general negligence law. Civil Code section 1714, subdivision (b) and (c) state:
"(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (5 Cal.3d 153), Bernhard v. Harrah's Club (16 Cal.3d 313), and Coulter v. Superior Court ( Cal.3d ) and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.
"(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages."
At the same time, the Legislature passed section 25602.1, which states: "Notwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death *977 against any person licensed pursuant to section 23300 who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any obviously intoxicated minor where the furnishing, sale or giving of such beverage to the minor is the proximate cause of the personal injury or death sustained by such person." (Italics added.)
The Legislature could have specified in section 25602.1 whether "any person" includes the minor. It did not. Contrast this to the language of Civil Code section 1714, subdivision (c) and to Civil Code section 1714.1, subdivision (a) which says in applicable part, "Any act of willful misconduct of a minor which results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian...." (Italics added.) The Legislature made it clear the minor was excluded in section 1714.1.
We must construe the clear words of section 25602.1 according to their ordinary and usual meaning. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [170 Cal. Rptr. 817, 621 P.2d 856]; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 231 [110 Cal. Rptr. 144, 514 P.2d 1224].) The usual meaning would include minors in the absence of a statement excluding them. It appears the Legislature intended section 25602.1 to include the minor as well as third parties, and, in fact, "any person" means any person.
The legislative history of the amendments supports this conclusion. The words "any injured person or the estate of such person" were substituted for the words "a third party," in section 25602, subdivision (c). (Sen. Bill No. 1645, (1978 Reg. Sess.) as amended in Senate May 17, 1978.) By expanding the class to "any injured person," the Legislature manifested its awareness that there was a difference between a third person and "any person." Had the Legislature intended to exclude obviously intoxicated minors from the protected class, it would have so stated.
The letter from Senator John Foran to the Governor discussing the statutes in question does not require a contrary conclusion. The letter said in part: "Containing the provisions requested by your office, Senate Bill 1175 would permit third party liability suits against liquor licensees who furnish alcoholic beverages to an obviously intoxicated minor if that minor causes personal injury or death as a result of his intoxication...." The letter did not say minors could not recover as well. (See Rogers v. Alvas, supra, 160 Cal. App.3d 997, 1003.) Aspen Mine Company contends that regardless of the language of the statute, a further probing of the legislative history mandates a conclusion that the Legislature intended to reinstate the law prior to Vesely v. Sager, supra, 5 Cal.3d 153, barring suit as to everyone against *978 the purveyor, because causation was attributed to the person drinking, not the person serving the alcoholic beverage. In light of that law Aspen Mine Company contends that the statutory exception was drafted solely for the benefit of third persons and not the obviously intoxicated minor. Aspen Mine Company directs us to the almost identical language of both Civil Code section 1714, subdivision (b) and section 25602, subdivision (c) where the Legislature declared "this section shall be interpreted so that the holdings in cases such as Vesely v. Sager (5 Cal.3d 153), Bernhard v. Harrah's Club (16 Cal.3d 313) and Coulter v. Superior Court (21 Cal.3d 144) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person." (§ 25602, subd. (c).)
This argument, however, overlooks the language of section 25602.1 itself which expressly excludes the applicability of section 25602, subdivision (c).
Moreover, the California Supreme Court in Cory v. Shierloh (1981) 29 Cal.3d 430 [174 Cal. Rptr. 500, 629 P.2d 8], explains why minors are not controlled by pre-Vesely law.
"We are not unmindful of the fact that the 1978 amendments constitute a patchwork of apparent inconsistencies and anomalies. Thus a licensed seller of liquor is liable to anyone injured by an obviously intoxicated minor served by the seller, while a nonlicensed, presumably illegal seller is not so liable. (Bus. & Prof. Code, § 25602.1.) A preferred liability status is thus given to those sellers who refuse to obtain licenses. The obviously intoxicated minor, and those injured by him, retain a cause of action against the seller, but an adult consumer, and those similarly injured by him do not (ibid.). Accordingly, whether or not the selling or supplying of the liquor is a tortious cause of a resultant injury turns on the license status of the supplier and the age of the consumer. Causation in a common law sense, whether actual or physical, proximate or legal, has never pivoted on such a perilous and seemingly irrelevant fulcrum. Nonetheless, our function is to find, if possible, some means to sustain, not reject, those amendments." (Id. at p. 440; italics added.)
".... .... .... .... .... .... .
"As for limiting the class of protected consumers to minors, the Legislature might reasonably have deemed such persons more in need of safeguarding from intoxication than adults, because of the comparative inexperience of minors in both drinking and driving. Given society's solicitous concern with minors (e.g., Bus. & Prof. Code, § 25658, prohibiting sales *979 of liquor to minors), the Legislature perhaps might reasonably suspend the sole theory otherwise advanced in justification of the subject legislation, namely, that it is the consumption alone, not the furnishing, of liquor which causes the resultant deaths and injuries. With effort, a reasonable basis for the 1978 amendments may be found." (Id. at p. 441; see also Strang v. Cabrol (1984) 37 Cal.3d 720, 724 [209 Cal. Rptr. 347, 691 P.2d 1013].)
We therefore hold obviously intoxicated minors who are served alcohol by a licensed purveyor of liquor, may bring a cause of action for negligence against the purveyor for subsequent injuries. The development of the common law as to purveyors' liability under the cases including Vesely v. Sager, supra, 5 Cal.3d 153, prior to the passage of the current section 25602 and Civil Code section 1714 in 1978 applies to suits by obviously intoxicated minors as well as third parties injured by them. Here where the plaintiff is an intoxicated minor, the proximate cause of injuries remains a question of fact to be resolved at trial.
DISPOSITION
Judgment reversed.
Wiener, Acting P.J., and Work, J., concurred.
The petition of respondent Aspen Mine Company for review by the Supreme Court was denied March 12, 1986.
NOTES
[*] Assigned by the Chairperson of the Judicial Council.
[1] All statutory references are to the Business and Professions Code unless otherwise specified.
[2] Implicit in our holding is the premise that a minor under section 25602.1 is not limited to persons under the age of 18 as defined by Civil Code section 25. For our purposes "minor" refers to persons under the age of 21. (See Rogers v. Alvas (1984) 160 Cal. App.3d 997, 1004 [207 Cal. Rptr. 60].)
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")s"iUR'l Or AH-'LkLS i"
"stats of washingt:.:
2013 JUL 22 Art 10= 36
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of No. 69558-4-I
consolidated with
J.X.K., dob 5/9/05, No. 69559-2-I
M.C.S., dob 6/15/11,
Minor Children.
WASHINGTON STATE DEPARTMENT
OF SOCIAL AND HEALTH SERVICES,
Respondent,
v.
SHANA KALBERER-BOBO, UNPUBLISHED OPINION
Appellant. FILED: July 22, 2013
Verellen, J. — Shana Kalberer-Bobo appeals the termination of her parental
rights to her son J.K., born May 9, 2005, and her daughter M.S., born June 15, 2011.
Kalberer-Bobo asserts the trial court erred in determining that (1) there was little
likelihood that conditions will be remedied so the children could be returned to her in the
near future; (2) continuation of her parental rights diminishes the children's prospects for
integration into a permanent home; and (3) termination of her parental rights is in the
children's best interest. Because the evidence amply supports the trial court's findings
of fact and those findings support the court's conclusions of law, we affirm.
No. 69558-4-1/2
FACTS
Kalberer-Bobo experimented with drugs starting at age 14, later used cocaine
daily, and became addicted to methamphetamine. In 2001, she was arrested for
possession of drugs. In 2004, she was convicted of two controlled substance violations
and incarcerated for 60 days.
In 2005, Kalberer-Bobo's son J.K. tested positive for methamphetamine at birth.
Soon thereafter, the superior court granted a dependency petition filed by the
Department of Social and Health Services (DSHS). J.K. lived with Kalberer-Bobo's
mother for approximately five months. Kalberer-Bobo followed through with
recommended services, including inpatient substance abuse treatment, and
demonstrated continuing sobriety. The dependency was dismissed in June 2008.
In 2010, Kalberer-Bobo was arrested and charged with possession with intent to
deliver methamphetamine. J.K. was removed from her care and placed with Kalberer-
Bobo's mother, where he remains. Dependency was established for J.K. for the second
time in March 2011 based on findings that Kalberer-Bobo provided inadequate care,
had a criminal history with multiple arrests, had relapsed on methamphetamine, and
was selling drugs. DSHS had earlier received reports that Kalberer-Bobo was using
amphetamines, had repeatedly failed to pick up J.K. from the school bus stop, and had
not provided J.K.'s school with medical equipment for J.K.'s severe asthma. The
dispositional order called for J.K. to remain with his maternal grandparents and for
Kalberer-Bobo to comply with urinalysis testing, have a drug/alcohol evaluation, and
follow treatment recommendations.
No. 69558-4-1/3
On March 28, 2011, Kalberer-Bobo participated in a drug/alcohol evaluation.
The evaluator recommended that she complete intensive outpatient treatment and
urinalysis testing. Despite the recommendation, Kalberer-Bobo did not enter treatment.
Kalberer-Bobo's daughter M.S. was born in June 2011 with amphetamines in her
system. Kalberer-Bobo admitted using drugs "off and on" throughout her pregnancy.
Dependency was established as to M.S. in August 2011.1 Kalberer-Bobo agreed to
place M.S. with the paternal aunt. M.S. has never been in Kalberer-Bobo's care.
On July 17, 2011, Kalberer-Bobo was arrested for committing two drug offenses:
possession with intent to manufacture or deliver heroin and possession of
methamphetamine. Kalberer-Bobo was admitted to family treatment court, but was
discharged for forging attendance slips for Alcoholics Anonymous/Narcotics Anonymous
meetings. Kalberer-Bobo testified that she was also kicked out because the Department
of Corrections found drugs in her room.
An agreed order of dependency for M.S. was entered in August 2011 based on
Kalberer-Bobo testing positive for amphetamines while pregnant, participating in
minimal prenatal care, and failing to engage in substance abuse treatment. Kalberer-
Bobo was ordered to engage in intensive outpatient treatment, urinalysis testing, and
mental health counseling. The court later changed the order to require inpatient
substance abuse treatment. Kalberer-Bobo did not engage in these services before she
pleaded guilty to her drug charges and was sentenced to 40 months in prison.
1 Report of Proceedings (RP) (Oct. 9, 2012) at 42.
No. 69558-4-1/4
In February 2012, the trial court found that Kalberer-Bobo had not participated in
treatment or urinalysis prior to incarceration, and had not engaged in services while
incarcerated. The court ordered a permanent plan of adoption for both children.
DSHS filed the termination petition for both children on April 18, 2012. Following
trial, the trial court entered orders terminating Kalberer-Bobo's parental rights as to both
children on October 25, 2012.2
Kalberer-Bobo appeals.
DISCUSSION
Standard of Review
An appellate court reviews a trial court's termination order to determine whether
the findings of fact are supported by substantial evidence in the record and whether the
findings support the conclusions of law.3 Unchallenged findings offact are treated as
verities on appeal.4
To prevail in a petition to terminate parental rights, the State must prove:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;
(c) That the child has been removed or will, at the time of the
hearing, have been removed from the custody of the parent for a period of
at least six months pursuant to a finding of dependency;
2The children's fathers' parental rights were previously terminated.
3In re Dependency of C.B.. 79 Wn. App. 686, 692, 904 P.2d 1171 (1995).
4 Fuller v. Emplov't Sec. Dep't of State of Wash.. 52 Wn. App. 603, 605, 762 P.2d
367 (1988) (review is limited to determining whether the findings support the
conclusions of law).
No. 69558-4-1/5
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future....
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.151
Each of the above elements must be proven by clear, cogent, and convincing
evidence.6 The State must also demonstrate that termination of parental rights is in the
best interests of the child.7
Here, it is undisputed that the elements of RCW 13.34.180(1)(a) through (d) are
met. Kalberer-Bobo contends the State failed to prove RCW 13.34.180(1)(e) and (f),
and argues that termination is not in the best interests of the children.
Little Likelihood Conditions Can Be Remedied
In determining whether there is little likelihood conditions will be changed such
that the child can be returned to the parent in the near future, the court may examine
the entire parenting history.8
5RCW 13.34.180(1).
6RCW 13.34.190(1)(a)(i); In re Welfare of S.V.B.. 75 Wn. App. 762, 768, 880
P.2d 80 (1994); In re Dependency of A.V.D.. 62 Wn. App. 562, 568, 815 P.2d 277
(1991). The clear, cogent, and convincing evidence standard is satisfied when a court
determines that the ultimate fact at issue is shown to be "highly probable." In re Welfare
of Seqo. 82 Wn.2d 736, 739, 513 P.2d 831 (1973); In re Dependency of P.A.D.. 58 Wn.
App. 18, 25, 792 P.2d 159 (1990).
7RCW13.34.190(1)(b).
No. 69558-4-1/6
Kalberer-Bobo contends she made substantial progress by remaining sober and
complying with regulations while in prison. She also argues that she may qualify for
early release from prison through the Family Offender Sentencing alternative (FOSA).
In this regard, she asserts the facts of her case are analogous to those in In re Welfare
ofC.B.9 There, DSHS contended the mother needed to engage in services, continue
her sobriety, and maintain a clean and safe home, but failed to prove that these
requirements could not be accomplished within one year.10 The appellate court
reversed the termination order, determining that DSHS failed to prove there was little
likelihood her conditions could not be remedied in the near future.11
But the record here is substantially different than that in C.B., where the court
found the parent's "drug use was [not] so extensive as to make it unlikely that she could
not remedy it in the near future," "the State admitted that she was doing well in her
recovery," and the trial court found that the parent"would likely improve."12 None of
these factors are present here. Kalberer-Bobo, unlike the parent in C.B., admitted at
trial that she did not complete the services required in the dependency action. She
failed to complete chemical dependency treatment or individual mental health
counseling. Kalberer-Bobo's drug addiction has not been successfully treated since
J.K. was removed from her care in 2010. Cassie Short, the court appointed special
advocate (CASA) for the children, testified she did not believe Kalberer-Bobo was
8 In re Welfare of Ross. 45 Wn.2d 654, 657, 277 P.2d 335 (1954).
9 134Wn. App. 942, 143 P.3d 846 (2006).
10 CJL 134 Wn. App. at 956-57.
11 ]d at 959-60.
12 Id. at 958-59.
No. 69558-4-1/7
capable of adequately caring for J.K. and M.S. in the near future because she failed to
comply with services despite numerous referrals, and had not made any progress. The
trial court was not required to believe Kalberer-Bobo's stated intention to pursue needed
services in the future, and the reviewing court will not weigh the evidence or credibility
of witnesses.13
Kalberer-Bobo argues that her "limited ability to obtain needed services during
her incarceration should not justify" the finding that there is little likelihood she could be
reunited with her children in the near future.14 But there was ample evidence that
Kalberer-Bobo did not improve even when all services were available to her. She
conceded as much at trial by admitting that all necessary services, reasonably available
and capable of remedying her parenting deficiencies, were expressly and
understandably offered or provided to her.
Kalberer-Bobo argues, as she did at trial, that she was a good candidate for early
release through FOSA, and would be eligible for inpatient chemical dependency
treatment, and would work toward having her children returned to her care. But
Kalberer-Bobo's ability to participate in FOSA is unknown and was the subject of
competing testimony at trial. DSHS social worker Jesse Choinski testified that Kalberer-
Bobo was unlikely to qualify for FOSA, in part because of the long separation from J.K.,
the fact that M.S. was never in her care, and the fact that the children's caregivers were
unlikely to allow her to parent the children again. Because there was conflicting
evidence, the trial court was not required to accept Kalberer-Bobo's optimism that she
13 Seqo. 82Wn.2dat740.
14 Appellant's Br. at 11.
No. 69558-4-1/8
would qualify, much less that she would succeed to the point that she could have the
children returned to her care.
The evidence overwhelmingly supports the trial court's finding that there is little
likelihood that Kalberer-Bobo will remedy her parental deficiencies in the near future.15
Kalberer-Bobo fails to demonstrate any error warranting appellate relief.
Integration Into Stable and Permanent Home
When determining whether substantial evidence supports RCW 13.34.180(1)(f),
the main focus is the parent-child relationship and whether it impedes the child's
prospects for integration.16
The record supports the trial court's finding that the State proved this element.
Social worker Choinski and CASA Short stated that J.K. and M.S. are adoptable and
that both have prospects for adoption. The record demonstrates that each of the
children remained in the same placement since the dependency actions began. J.K.
remained in placement with his maternal grandmother since 2010, and M.S. remained
with her paternal aunt since her birth. Choinski testified that M.S. had no parent-child
bond with her mother. Choinski testified that J.K. was "distressed by the possibility of
going back or leaving his grandma,"17 that his visits with Kalberer-Bobo were "pretty
inconsistent," interrupted his routine and schedule, and "there was a lot oftension."18
15 "A determination of what constitutes the near future depends on the age of the
child." In re Dependency of T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005).
18CJL, 134 Wn. App. at 345.
17RP(Oct. 9, 2012) at 106.
18 Id. at 111.
8
No. 69558-4-1/9
There was evidence that the placements are prospective adoptive homes, and
that these homes cannot become permanent if the mother's parental rights remained
intact. She further stated that there was tension between M.C.'s caregiver and
Kalberer-Bobo because the caregiver suspected Kalberer-Bobo was intoxicated during
visits. The situation became so stressful for the caregiver that visits at her home were
discontinued. Short testified that there was conflict between Kalberer-Bobo and her
mother, and that Kalberer-Bobo's mother felt the visits were too disruptive for J.K. Short
also testified that visits with both children were disrupted by Kalberer-Bobo's
"inconsistent, erratic behavior, and sometimes aggressive and volatile behavior."19
Given this evidence, the trial court did not court err by finding this factor proven.
Present Unfitness
Kalberer-Bobo contends that because she sought out voluntary treatment,
education, and leadership roles while in prison, she has demonstrated present fitness to
parent. She argues that the trial court impermissibly relied only on her past fitness
when it found her unfit to parent.
However, the record provides ample support for the trial court's finding that
Kalberer-Bobo was unfit to parent the children due to her serious methamphetamine
addiction and criminal behavior. The court may consider the long-standing involvement
of DSHS and the court, as well as past history ofthe parent's behavior and deficiencies.20
Between the time J.K. was removed in December 2010 and Kalberer-Bobo's
incarceration in December 2011, she failed to complete court-ordered chemical
19 Id, at 225.
20 In re Dependency of J.C.. 130 Wn.2d418, 427-28, 924 P.2d 21 (1996).
No. 69558-4-1/10
dependency treatment, urinalysis testing, mental health services, and had several
relapses into drug use.
The trial court did not err by finding the mother presently unable to adequately
care for the children.
Best Interests of the Children
Kalberer-Bobo contends the juvenile court erred in finding it was in the children's
best interests to terminate her parental rights. We disagree.
The dominant consideration in a termination of parental rights proceeding is the
moral, intellectual and material welfare ofthe child.21 Appellate courts are constrained
to place very strong reliance on a trial court's determination of what course of action will
be in the best interests of the child.22
There was substantial evidence in the record from which the trial court could
determine that termination was in J.K.'s best interests. Although Kalberer-Bobo
describes a strong bond, the evidence demonstrates that the only time she was
consistent in attending visitation with J.K. was during a few months of inpatient
treatment when the children were transported to her treatment facility. The last visit she
had with J.K. was in September or October 2011.
There was substantial evidence that J.K.'s physical and behavioral health
improved after he was no longer in his mother's care. Kalberer-Bobo testified that J.K.
had severe eczema and asthma, and had been repeatedly hospitalized for his asthma
while in her care. Choinski testified that J.K.'s asthma and eczema had to be monitored
21 In re Dependency of A.A.. 105 Wn. App. 604, 610, 20 P.3d 492 (2001).
22 In re Interest of Pawling. 101 Wn.2d 392, 401, 679 P.2d 916 (1984).
10
No. 69558-4-1/11
and medicated. Short testified that J.K.'s eczema and asthma improved after he was
placed in his grandmother's care, choinski testified that J.K. also had developed
behavioral issues while in his mother's care, including anger and aggression, but these
issues diminished since J.K. was removed from Kalberer-Bobo's care. Choinski opined
that J.K. needs permanency now and needs to know who will meet his needs on a
regular basis.
According to Choinski, M.S. does not have any parent-child bond with Kalberer-
Bobo and does not know who she is. M.S. has never been in her mother's care and
does not see her mother as her primary caregiver or as the person who fulfills her
needs. Although Kalberer-Bobo initially participated in supervised visitation with M.S.
under the supervision of the paternal aunt, the aunt was concerned that the mother was
attending visits while under the influence. M.S. last visited with her mother when she
was four months old. At the time of trial, M.S. was 16 months old.
The CASA testified that M.S. and J.K. need "stability and permanence and to live
in a forever family now" and recommended termination of Kalberer-Bobo's parental
rights.23 She stated it would not be safe to return the children to Kalberer-Bobo in the
near future.
Because the record amply supports the trial court's finding as to the children's
best interests, Kalberer-Bobo fails to demonstrate that the finding was erroneous.
23
RP(Oct. 10, 2012) at 226-27.
11
No. 69558-4-1/12
CONCLUSION
Substantial evidence supports the trial court's findings of fact. Those findings
support the conclusions of law. The elements of RCW 13.34.180(1) and
RCW 13.34.190 have been met. We affirm the order terminating Kalberer-Bobo's
parental rights as to J.K. and M.S.
WE CONCUR:
A^/ e j &x ,T.
12
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443 So.2d 766 (1983)
STATE of Louisiana, Plaintiff-Appellee,
v.
Rickey JOHNSON, Defendant-Appellant.
No. CR83-358.
Court of Appeal of Louisiana, Third Circuit.
December 14, 1983.
Writ Denied February 16, 1984.
*767 William D. Dyess, Many, for defendant-appellant.
James L. Davis, Dist. Atty., Many, Abbott Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
Before CUTRER, DOUCET and LABORDE, JJ.
CUTRER, Judge.
The defendant, Rickey Johnson, was indicted and convicted for the aggravated rape of Yvette Perry, in violation of LSA-R.S. 14:42. A motion for a new trial, on the basis of five assignments of error, was heard and denied by the trial judge. The mandatory statutory penalty of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence was subsequently imposed.
The defendant appeals his conviction, raising the same five assignments of error alleged as grounds for a new trialviz, the trial court erred:
(1) In allowing the prosecutor to refer to other crimes or bad acts of the defendant and also in allowing the prosecutor to introduce certain testimony as to the defendant being on probation at the time of the offense at issue;
(2) In prohibiting the defendant from exercising his constitutional right to confront the prosecuting witness (rape victim) by denying the defendant the right to cross-examine the victim as to her prior sexual conduct or reputation for chastity;
(3) In not allowing the defendant adequate time to present a defense to an alleged "Prieur notice," which was provided by the State only five (5) days before the trial was to begin;
(4) In permitting the prosecutor to violate the guidelines of State v. Prieur, 277 So.2d 126 (La.1973); and
(5) In failing to properly charge the jury as to the limited purpose of the State's "other crimes" evidence, which could not form the basis for convicting the defendant of the offense being tried.
FACTS
In the early morning hours of July 12, 1982, Yvette Perry was awakened from her sleep by the presence of an armed intruder, who placed a pistol to her head and ordered her to disrobe. At this time, Ms. Perry (age 22) was living in an apartment in Many, Louisiana, with her three young children. Threatening to blow out the victim's brains if she didn't cease her crying, the assailant then raped Ms. Perry. Making no attempt to mask his identity, the rapist stayed in the victim's apartment for approximately four hours.[1] During his stay and after the initial rape of the victim, the intruder related to Ms. Perry various personal *768 details about himself.[2] Subsequent to this conversation, the victim was once again raped and, thereafter, her assailant departed.
Through a physical description of the rapist and the personal data which he had provided his victim, the defendant was arrested on July 14, 1982. Ms. Perry had identified the defendant from a photographic line-up on July 12th, and at trial she positively identified defendant as being the man who had twice raped her.
ASSIGNMENT OF ERROR NUMBER 1
By this assignment the defendant complains of several instances at trial, wherein he alleges that the State was impermissibly allowed by the trial judge, over defendant's objection, to refer to other crimes or bad acts by the defendant. A general statement of the reasons for prohibiting "other crimes" evidence is found in State v. Ledet, 345 So.2d 474, 477 (La.1977):
"In order for a person to be found guilty of a crime, the state must prove beyond a reasonable doubt that the accused committed the crime with which he stands charged, not that he may have committed it because he is a bad man who has committed other offenses on other occasions. State v. Frederick, 340 So.2d 1353 (La.1976); State v. Slayton, 338 So.2d 694 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1976). Only under certain limited circumstances may the state introduce evidence of other criminal acts committed by an accused. See R.S. 15:481, 491, 495."
The first instance complained of was the victim's testimony that the defendant had told her that he was on probation.[3]
The State, in what it deemed to be an "abundance of caution" notified the defendant, pursuant to State v. Prieur, supra, that it intended to introduce the victim's testimony regarding the defendant's statement to her. The State's notice provided in detail the content of the defendant's statements, including his reference to "probation or parole." Opining that it had no duty to provide defendant with this notice as the defendant's statements were part of the res gestae, the State, nevertheless, did provide the notice and also indicated that it intended to call both the officer to whom the victim had related the information and the probation officer who had aided in establishing the defendant's identity.[4] The prosecution stated that this testimony would be "used for the sole purpose of proving what the defendant said to the victim from which the defendants [sic] identity was obtained."[5]
In a hearing outside of the jury's presence, the trial judge overruled the defendant's objection to the State's reference to defendant's probation,[6] finding that the defendant's statements fell within the res gestae of the crime and that the State was not attempting to use "a whole series of prior crimes."[7] We agree.
*769 In the case at bar the armed defendant told the victim of his probation after he had initially raped her but before he raped her the second time. Our Supreme Court has addressed this precise issue in a case involving strikingly similar facts. In State v. Wilson, 363 So.2d 481 (La.1978), the court ruled on the admissibility of that victim's testimony that her attacker, during the interim of raping her twice, mentioned that he had been to Angola (the State penitentiary).
We find the following language to be both controlling and dispositive to the issue before us:
"Defendant argues that the reference to Angola does not comprise part of the res gestae under LSA-R.S. 15:447 since the reference was to events remote in time and space. However, the defendant's own statements during the commission of a criminal act are the spontaneous words of a participant and comprise part of the res gestae under LSA-R.S. 15:447. State v. Sepulvado, La., 342 So.2d 630 (1977); State v. Williams, La., 331 So.2d 467 (1976); State v. McKinnon, La., 317 So.2d 184 (1975).
"In the present case, the defendant's statement that he had been to Angola was made after he entered the victim's home armed with a dangerous weapon. The victim stated that she submitted to the defendant because she was in fear of her life since the defendant had already stated he had been in Angola. Thus, the defendant's statements were clearly part of the res gestae since they were made after the defendant entered the house armed with a dangerous weapon and before he raped the victim. Under LSA-R.S. 15:447, the res gestae is always admissible in evidence. State v. Morris, La., 340 So.2d 195 (1976); State v. Curry, La., 325 So.2d 598 (1976; State v. Hatch, La., 305 So.2d 497 (1975)."
The present defendant's statements were spontaneously made during the commission of at least two criminal acts and were, accordingly, part of the res gestae. The trial judge correctly so ruled and did not err in declaring the victim's testimony admissible.
The second allegedly impermissible reference to other crimes occurred during the State's examination of Ken Welsh, defendant's probation officer at the time of the crime at issue. The dialogue complained of is as follows:
"BY THE DISTRICT ATTORNEY:
"Q. Is he a convicted criminal?
MR. DYESS: Objection, Your Honor.
DISTRICT ATTORNEY: What do you mean objection? I have asked a question and he will be able to say yes or no.
THE COURT: Approach the Bench, please. (Both counsel to the bench) The objection is sustained and the State is requested to rephrase its question.
DISTRICT ATTORNEY (Continuing)
"Q. Do you know whether this individual has ever been convicted of any criminal conduct or not?
"A. Yes. He's on probation."
The State never sought to elaborate upon the crime for which the defendant had been on probation.[8]
We previously found that the victim's testimony regarding the defendant's probation was properly admissible into evidence. Walsh's testimony merely corroborated that which had already been entered into evidencei.e., the defendant had been on probation. The evidence was introduced by the State solely to establish how the officers had followed up on the victim's leads, which ultimately led to the defendant's arrest. Assuming, arguendo, that Walsh's testimony was an impermissible reference *770 to another crime by the defendant, it was clearly harmless, as the victim had earlier made the same reference.[9] Harmless error may not form the basis for reversal upon appeal. LSA-C.Cr.P. art. 921.[10]
The final reference to other crimes complained of by the defendant occurred during the State's cross-examination of the defendant's mother, set forth as follows:
"Q. Do you know if your son has ever been convicted or anything?
A. No.
MR. DYESS: Objection, Your Honor.
DISTRICT ATTORNEY: (Continuing)
Q. Has not?
THE COURT: Sustained.
DISTRICT ATTORNEY: She can testify about convictions, Judge, if she knows.
THE COURT: That is only admissible for the purpose of impeachment of the witness on the stand. The objection is sustained.
DISTRICT ATTORNEY: That's all. I don't have any other questions.
MR. DYESS: That's all."
We note, initially, that we fail to see any manner in which the defendant has been prejudiced by the complained of question and answerespecially since the witness (defendant's mother) answered that she did not know that her son had ever been convicted of any crime.
However, even assuming that the defendant was prejudiced, we find that the defendant did not take the proper steps to preserve this issue upon appeal. When an accused timely objects to certain remarks or comments made in the presence of the jury, he has available to him the mandatory mistrial provisions of LSA-C.Cr.P. art. 770 or the discertionary mistrial or admonition provisions in LSA-C.Cr.P. art. 771. In the instant case, the defendant's objection to the question asked by the prosecutor was sustained by the trial judge; the defendant did not, however, request any relief in the form of a mistrial or an admonishment to the jury. The jurisprudence is clear that the failure to lodge either of these requests in a manner which would timely allow the trial judge to cure the alleged defect precludes the defendant from raising the issue on appeal. State v. Michel, 422 So.2d 1115 (La.1982); State v. Miles, 402 So.2d 644 (La.1981); State v. Baylis, 388 So.2d 713 (La.1980); State v. Nicholas, 359 So.2d 965 (La.1978).
For the aforementioned reasons, this assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER 2
Defendant argues by this assignment that he was denied his constitutional right to confront the witness against him, when the trial judge denied him the right to cross-examine the victim as to her prior sexual conduct or reputation for chastity.[11] An examination of the record indicates that defense counsel, cognizant of the prohibitions in LSA-R.S. 15:498[12] requested to the trial judge that he be allowed to delve into the evidence concerning the victim's contraction of venereal disease.
The defendant had had three tests for veneral disease performed at the order of the State, and the trial judge agreed with *771 the defendant that he should be allowed to inquire into the victim's disease, although he would not be allowed to go into detail regarding the sexual acts themselves. And, at trial, the victim stated under cross-examination that she believed that she could have contracted venereal disease from either the defendant or from another named man, whose surname differed from her own. The victim's testimony that she had had sexual relations with another man, presumably not her husband, was followed by other questions by the defense regarding the test results performed upon that other man. The victim stated that she had been told that the test results were negativeindicating that her paramour had not contracted venereal disease. No objections to this line of questioning were lodged by the State, and the defendant was, therefore, allowed to question, as he had earlier requested, the victim regarding her contraction of venereal diseasealthough this clearly encompassed evidence of another sexual act by the victim with someone other than the defendant.
No request was made by the defendant to be allowed to inquire into further sexual activity by the victim, and no objection as to the line of questioning allowed by the trial judge was made by the defendant. The requested cross-examination of the victim was allowed by the trial judge, and the victim may not now complain that an unobjected to error occurred.
At the hearing on his motion for a new trial, the defendant requested the trial judge to declare R.S. 15:498 unconstitutional, as having infringed upon his right to confront the witnesses against him. The trial judge ruled that no basis for declaring an unconstitutional infringement had been shown, and he denied the motion on that ground.
Our Supreme Court has noted that R.S. 15:498 might unconstitutionally restrict the accused's confrontation right, when the evidence of the victim's sexual conduct is genuinely relevant to the issue of guilt or innocence. State v. Dawson, 392 So.2d 445 (La.1980); State v. Decuir, 364 So.2d 946, 948 (La.1978) (concurring opinion). However, when the victim's prior sexual activity with someone other than the accused has no relevance to the issue of her consent involving a subsequent act of rape, no allegation of unconstitutional impingement may be maintained. State v. Dawson, supra. Such is true in the instant case. No showing of any possible relevance regarding the victim's prior sexual history has been made by the defendant.[13]
The trial judge correctly upheld the constitutionality of R.S. 15:498, and he even allowed the defendant, at his request, a latitude of inquiry into the victim's past sexual acts, regarding her contraction of venereal disease. We can find no error under these facts. Accordingly, this assignment has no merit.
ASSIGNMENTS OF ERROR NUMBERS 3, 4 and 5
By these assignments the defendant alleges that the State failed to comply with several of the guidelines set forth in State v. Prieur, 277 So.2d 126 (La.1973). The judicial guidelines of Prieur are requirements the State must meet before it can enter into evidence other crimes of the defendant under the exceptions delineated in LSA-R.S. 15:445[14] and 15:446.[15]
*772 The requirements imposed by Prieur are set forth as follows:
"(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant's testimony.
(2) In the written statement the State shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses.
(3) Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant's bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.
(4) When the evidence is admitted before the jury, the court, if requested by defense counsel, shall charge the jury as to the limited purpose for which the evidence is received and is to be considered.
(5) Moreover, the final charge to the jury shall contain a charge of the limited purpose for which the evidence was received, and the court shall at this time advise the jury that the defendant cannot be convicted for any charge other than the one named in the indictment or one responsive thereto."
Defendant complains that violations of 1, 3, 4 and 5 occurred.[16]
In overruling the defendant's objections (both at trial and at the motion for a new trial) on the basis of Prieur, the trial judge found that the other crimes evidence was admissible under the res gestae exception and, therefore, required no compliance with Prieur. We previously agreed with the trial judge's ruling as to the applicability of the res gestae exception for other crimes evidence, and we are likewise in accord with his ruling that the State was not, because of the doctrine of res gestae, required to comply with Prieur's guidelines.
Our Supreme Court, in State v. Goza, 408 So.2d 1349, 1351 (La.1982), stated the following:
"Evidence of offenses which are part of the res gestae, or convictions used to impeach defendant's testimony, are the only exceptions to the Prieur rules requiring the prosecution to give reasonable, particularized notice to the accused of any other crimes evidence it intends to offer."
This is a restatement of the principle that Prieur notice is not necessary when evidence of the other crimes is part of the res gestae. State v. Williams, 375 So.2d 364 (La.1979).
As the other crimes evidence was part of the res gestae in the instant case, we find that the trial judge properly rejected the defendant's claims that the State was required and failed to comply with the Prieur guidelines. This assignment is, therefore, without merit.
For these reasons, the defendant's conviction and sentence are affirmed.
AFFIRMED.
NOTES
[1] The initial intrusion was at approximately 2:00 A.M., and the attacker left at 6:00 A.M.
[2] Revelations made by the intruder are as follow:
(1) He had gone to prison for murder and, because he was on probation, his use of a weapon could result in his return to prison;
(2) His family was in Natchitoches, and he was from Leesville;
(3) He was the father of a child, and the mother's name was Tiny; and
(4) His name was Marcus Johnson.
[3] A hearing on this issue was held outside of the jury's presence, and the trial judge ruled that the testimony was admissible. The defendant timely objected to this ruling.
[4] At trial the State called only one probation and parole officerKen Welsh.
[5] The defense attempted, through the use of alibis by the defendant's mother and brother, to establish that the defendant was not in the victim's apartment at the time of the rape. However, the State appears to have successfully rebutted these attempted alibis.
[6] Although the objection was primarily couched in terms of noncompliance with State v. Prieur, defense counsel timely objected (LSA-C.Cr.P. art. 841) to the other crimes evidence.
[7] LSA-R.S. 15:447 defines res gestae as:
"Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence."
[8] In fact, it was defense counsel who subsequently attempted to delve into the crimes two (2) according to himwhen the trial judge cautioned him that such a line of questioning could open the whole area of the defendant's prior acts. Counsel heeded the caution by discontinuing his line of questioning regarding the defendant's probationary crimes.
[9] Although it is arguable that the defendant failed to preserve this issue on appeal by not objecting contemporaneously a second time to Welsh's testimony and by failing to request a mistrial under LSA-C.Cr.P. arts. 770 or 771, we have considered the issue, because the defendant had initially objected to any reference by the State of defendant's prior acts. The objection was overruled by the trial judge, and the defendant timely objected to this ruling.
[10] The trial judge, subsequent to defense counsel's question to Welsh regarding defendant's past crimes, sua sponte admonished the jury that the defendant was only on trial for the charge of aggravated rape.
[11] The confrontation right is provided in the Sixth Amendment to the United States Constitution and by Article I, § 16 of the Louisiana Constitution.
[12] "Evidence or prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim's relationship with the accused."
[13] The defendant apparently felt that he should be allowed to draw the jury's attention to the fact that Ms. Perry has two illegitimate children. He claimed that Ms. Perry did not know the identity of those children's fathers. However, Ms. Perry, at the preliminary examination hearing, said that she did know the identity of the fathers. We find none of this to be relevant to the case at bar.
[14] LSA-R.S. 15:445 states:
"In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction."
[15] LSA-R.S. 15:446 provides:
"When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged."
[16] Notice was given by the State on December 28, 1982, when the trial was set to commence on January 3, 1983. It actually began on January 5, 1983. Defendant contends this was an unreasonably short time.
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174 Ariz. 291 (1993)
848 P.2d 870
AROK CONSTRUCTION COMPANY, a California Corporation, Plaintiff-Appellant,
v.
INDIAN CONSTRUCTION SERVICES, a joint venture between Evcor Builders, Inc., Jeremiah La Mesa and Jane Doe La Mesa, Defendants-Appellees.
No. 1 CA-CV 90-231.
Court of Appeals of Arizona, Division 1, Department B.
February 11, 1993.
*292 Cruse, Firetag & Bock by Robert J. Cruse, Keith B. Forsyth, Phoenix, for plaintiff-appellant.
Burch & Cracchiolo, P.A. by Edwin D. Fleming, Michael Salcido, Phoenix, for defendants-appellees.
OPINION
LANKFORD, Judge.
Plaintiff AROK Construction Company ("AROK") brings this appeal from the entry *293 of summary judgment in favor of Defendants-Appellees Indian Construction Services ("ICS"), Evcor Builders, Inc., and Jeremiah La Mesa. AROK's appeal challenges the superior court's holding that, as a matter of law, no contract existed between the parties because essential terms were absent from the parties' agreement.
During our consideration of this matter, we asked the parties to submit supplemental briefs on the impact, if any, of the Arizona Supreme Court's decision in Schade v. Diethrich, 158 Ariz. 1, 760 P.2d 1050 (1988), on the application of Savoca Masonry v. Homes & Son Construction Co., 112 Ariz. 392, 542 P.2d 817 (1975) to the instant appeal. The parties filed supplemental briefs, which we have considered together with the parties' initial briefs.
I.
On review of summary judgment, we view the facts and evidence in a light most favorable to the party against whom summary judgment was granted and draw all reasonable inferences in favor of that party. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 193, 195, 805 P.2d 1012, 1014, 1016 (App. 1990). Summary judgment was granted against AROK, and we must view the record accordingly.[1]
In 1985, Window Rock Unified School District ("Owner") solicited bids for the services of a general contractor. The Owner is not a party to this lawsuit. ICS submitted a bid to act as the general contractor. ICS listed AROK on the bid as the subcontractor to perform drywall and stucco portions of the construction project. The bid was based in part on a telephonic bid by AROK of $1.549 million based on the plans and specifications.
Prior to bid closing, ICS asked AROK to reduce its bid from $1.549 million to $1.42 million. The president of AROK stated to the ICS project manager that AROK would reduce its bid even further to $1.4 million if, as a result, ICS would agree to contract with AROK if the Owner awarded the bid to ICS. The ICS project manager stated that in exchange for AROK's further reduction to $1.4 million, "If [ICS] get[s] a job, [AROK] get[s] a job." AROK sent a letter to ICS confirming the $1.4 million quote and enclosed a detailed bid confirmation.
In early 1986, the Owner declared ICS to be low bidder and awarded it the contract to act as general contractor. ICS then requested "value" adjustments to AROK's bid; AROK complied and worked approximately eight to ten hours further reducing the subcontract price.
ICS received a "notice to proceed" from the Owner. After receiving the notice to proceed, ICS disputed the subcontract price. ICS contended that AROK had agreed to perform the work for $1.3 million; AROK maintains that its original bid, as reduced to $1.4 million, is the correct price. Shortly thereafter, ICS entered into subcontracts with two other entities to perform the drywall and stucco work.
AROK and the principals of ICS[2] had entered into contracts on three prior occasions. On each occasion, the parties used identical standard form contracts.[3] Added *294 to these forms were four identical typed provisions. On one contract, a non-material provision was interlineated and initialed by the parties. When ICS contracted with the replacement subcontractors for this project, it again used the form contract it had used with AROK.
AROK filed this action alleging breach of contract, promissory estoppel, and racketeering. See Ariz. Rev. Stat. Ann. ("A.R.S.") § 13-2314 (civil remedies for racketeering). AROK appeals from the summary judgment on the breach of contract and promissory estoppel counts only.
II.
A.
The overarching question is whether there is a genuine issue requiring a trial that AROK had a contract with ICS. See Ariz.R.Civ.P. 56(c). It is settled law that the bidding process alone does not create a contract. ICS did not obligate itself to use AROK as a subcontractor merely by relying on AROK's subcontract bid or by listing AROK as the subcontractor in the bid. See Universal Const. Co. v. Arizona Consol. Masonry & Plastering Contractors Ass'n, 93 Ariz. 4, 8, 377 P.2d 1017, 1019 (1963) (a bid "does not ripen into a contract until voluntarily accepted by the offeree"); Corbin-Dykes Electric Co. v. Burr, 18 Ariz. App. 101, 103, 500 P.2d 632, 633-34 (1972) (a subcontractor's bid is nothing more than an offer to perform the subcontract under specified terms and does not ripen into a contract until voluntarily accepted by the general contractor). In short, both AROK's bid to ICS and ICS's bid to the Owner were mere offers to contract. These offers had no binding effect unless and until accepted by the offerees to whom the offers were directed.
A bid becomes a contract, however, when it is accepted. In Savoca Masonry v. Homes & Son Construction Co., 112 Ariz. 392, 542 P.2d 817 (1975), the Arizona Supreme Court considered facts very similar to the facts in this case. The general contractor sought bids. A subcontractor submitted a bid. The general contractor listed that subcontractor in the bid for the construction contract. The owner awarded the contract to the general contractor.
In a telephone conversation, the general contractor informed the subcontract bidder that it had the job. Despite this promise, the general contractor ultimately employed someone else to perform the work. The subcontract bidder sued for breach of an oral contract. The general contractor conceded that the subcontract bid was an offer that had been accepted. Similarly, ICS admits for purposes of this appeal that AROK's bid was an offer accepted by ICS.
Despite the presence of the contract elements of offer and acceptance, the supreme court held in Savoca Masonry that the parties' agreement was not binding. The court found that the agreement lacked terms essential to a contract. It reasoned that an enforceable contract did not exist because "such essentials, as manner of payment, time for completion ..., penalty provisions, bonding, etc.," were not agreed upon. Savoca Masonry, 112 Ariz. at 395, 542 P.2d at 820 (quoting Plumbing Shop, Inc. v. Pitts, 67 Wash.2d 514, 518-19, 408 P.2d 382, 384-85 (1965)). The court stated that "only price and work involved were agreed upon.... A sufficient mutual understanding as to all the terms of the contract did not exist." 112 Ariz. at 395, 542 P.2d at 820 (emphasis added). The court found that agreement on such terms as manner and time of payments, penalty provisions, time for completion, and bonding was essential to contract formation.
Similarly, some terms are missing from the agreement in this case and, at first blush, Savoca Masonry appears to warrant summary judgment against the subcontract bidder, AROK. However, the Arizona Supreme Court later considered the same legal issue whether missing terms rendered an agreement unenforceable in the context of an employment case. Schade v. Diethrich, 158 Ariz. 1, 760 P.2d 1050 (1988). In contrast to Savoca Masonry, the supreme court held in Schade that an employment severance agreement was enforceable even though important terms were left unresolved.
*295 In Schade, the employer merely promised to enter into a fair and equitable severance agreement, with the specific terms to be resolved later. Our supreme court held that such an agreement was sufficiently definite to be enforceable. The court examined the transaction in terms of whether a bargained-for exchange and consideration existed, finding that the only provisions of a multi-term agreement which were uncertain and left for later resolution were those relating to severance pay and benefits. Schade, 158 Ariz. at 8-9, 760 P.2d at 1057-1058. The court stated that certainty of terms relates to the parties' intent to contract: "[T]he requirement of certainty is not so much a contractual validator as a factor relevant to determining the ultimate element of contract formation the question whether the parties manifested assent or intent to be bound." 158 Ariz. at 9, 760 P.2d at 1058. Thus, the overriding question is whether the parties intended to contract.
Our supreme court found that the Schade agreement sufficiently manifested mutual assent to be bound by contract despite the absence of agreement on the most basic terms of the severance package:
Any requirement of "reasonable certainty" is satisfied if the agreement that was made simply provides "a basis for determining the existence of a breach and for giving an appropriate remedy." RESTATEMENT (SECOND) OF CONTRACTS § 33(2).... [T]he trial court did not need to take upon itself the task of filling the gaps in the parties' agreement and designing an appropriate remedy. It had, instead, the opinion of experts mutually selected by Diethrich and Schade. The Committee to which they turned to recommend a fair and equitable severance agreement was composed of businessmen familiar with personnel practices involving senior executives....
Schade, 158 Ariz. at 10-11, 760 P.2d at 1059-60. The court held that the parties had made an enforceable bargain.
Schade reflects a clear and overwhelming trend in the law. The old "formalist" view limited the agreement to written terms and emphasized rules of contract, such as the requirement that the agreement include all material terms. This has long since given way to the "realist" approach, exemplified by the Uniform Commercial Code and the Second Restatement of Contracts. The latter emphasizes standards rather than rules, and assigns to courts the task of upholding the agreements parties intended to make. See generally Richard Speidel, Restatement Second: Omitted Terms and Contract Method, 67 CORNELL L.REV. 785 (1982).
The courts have employed the modern approach to uphold construction contracts which lack material terms. For example, an informal agreement covering price, nature of the work and schedule of the work but lacking other terms was held enforceable in Havens Steel Co. v. Randolph Engineering Co., 613 F. Supp. 514 (W.D.Mo. 1985), aff'd, 813 F.2d 186 (8th Cir.1987). In Henry C. Beck Co. v. Arcrete, Inc., 515 S.W.2d 712 (Tex.Civ.App. 1974), writ dism'd (1975), the court held that the parties to a subcontract could be bound without agreeing on all terms if they intended to do so.
In light of Schade, we believe that our supreme court would decide Savoca Masonry differently today. In Schade, the court found an enforceable contract when the agreement between the parties was an oral agreement to enter into a contract representing a fair and equitable severance package. In the instant case, the agreed terms were more settled than in Schade.
Just as importantly, there is evidence in this case which permits resolution of any indefiniteness in the agreement. Unlike either Schade or Savoca Masonry, the record here contains evidence of a prior course of dealing in which agreement had been reached in other construction contracts on the very terms which ICS claims are missing from this contract. The availability of this evidence distinguishes Savoca Masonry.
B.
We hold that the evidence is sufficient to raise a triable issue of whether a contract exists. Again viewing the evidence *296 in the light favorable to the party seeking a trial, we learn that AROK's offer its bid was accepted by ICS. An agreement was made when ICS requested AROK to reduce its bid from $1.549 million to $1.42 million. AROK's president stated at the time that if ICS would guarantee AROK the contract, AROK would reduce its bid even further to $1.4 million. ICS's project manager responded, "If we get the job, you get the job." AROK later sent a confirming letter and detailed bid confirmation.
ICS concedes for purposes of this appeal that its conditional promise,[4] "If we get the job, you get the job," is an acceptance of AROK's promise to perform the work for a reduced price. ICS bargained for the lower bid price from AROK; AROK bargained for the promise of the contract award. The exchange of these return promises constitutes consideration.[5] ICS further admits that consideration was given.
ICS contends, however, that the parties failed to specify other terms essential to indicate their intent to be bound: the manner and time of payments, penalty provisions, time for completion, and bonding. We note that ICS does not contend that a contract was never formed because the parties expressed disagreement about specific terms.[6] Rather, ICS argues that the parties simply never discussed some terms, leaving gaps in the agreement. Relying on Savoca Masonry, ICS argues that as a result of the missing terms, no enforceable contract exists as a matter of law.
Is the agreement too uncertain to enforce? In Schade, our supreme court relied on the RESTATEMENT (SECOND) OF CONTRACTS § 33 as the expression of "settled principles of law." 158 Ariz. at 9, 760 P.2d at 1058. Section 33 establishes "reasonable certainty" as the standard for enforcement, explaining:
(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.
(2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.
(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.[7]
The RESTATEMENT rule exemplifies the policy of the law to uphold agreements. Courts are never eager to undo agreements. Only when courts ensure that promises create obligations do promises have real meaning. Only then can those in the marketplace rely on their bargains to allocate their resources and plan for the future. "Commitments to take or refrain from taking certain actions are indispensable elements in most forms of interaction and exchange." Gillian Hadfield, Problematic Relations: Franchising and the Law of Incomplete Contracts, 42 STAN. L.REV. 927 (1990). For example, AROK presented evidence that it did not bid for other jobs because it had a contract with ICS. If that contract is not enforced, and AROK's resources were idled as a result of *297 ICS's promise and breach, then one of the goals of contract law economic efficiency would be thwarted.
The enforcement of incomplete agreements is a necessary fact of economic life. Business people are not soothsayers, and can neither provide in advance for every unforseen contingency nor answer every unasked question regarding a commercial agreement. This is especially so with a complex contract for a major construction project. Nor are entrepreneurs perfect at drafting legal documents. Finally, parties may want to bind themselves and at the same time desire to leave some matters open for future resolution in order to maintain flexibility. Thus, courts are often presented with incomplete bargains when the parties intend and desire to be bound. See Gillian Hadfield, Problematic Relations: Franchising and the Law of Incomplete Contracts, 42 STAN.L.REV. 927 (1990). Refusing the enforcement of obligations the parties intended to create and that marketplace transactions require hardly seems the solution.
For these reasons, the policy of the law favors enforcement when it is clear that the parties intended themselves to be bound. "[T]he actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon. In such cases, courts endeavor, if possible, to attach a sufficiently definite meaning to the bargain." RESTATEMENT (SECOND) OF CONTRACTS § 33 comment a (emphasis added).[8] Professor Corbin, whose realist view of contract law has prevailed in Arizona and elsewhere,[9] wrote:
If the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filling of some gaps that the parties have left....
The fact that the parties have left some matters to be determined in the future should not prevent enforcement, if some method of determination independent of a party's mere "wish, will, and desire" exists, either by virtue of the agreement itself or by commercial practice or other usage or custom.
ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 95, 400-402 (1963).
As ICS contends, some terms of the contract between ICS and AROK to perform the stucco and drywall work were unresolved. However, as the RESTATEMENT indicates, absent or uncertain terms are not fatal to the enforceability of an otherwise binding contract. Schade illustrates the point. In that case, the nature of a "fair and equitable" severance package was unresolved.
The standard for contract enforceability is not whether the agreement included a resolution of every matter and anticipated every contingency. "The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy." RESTATEMENT (SECOND) OF CONTRACTS § 33(2) (1981). If a court can determine the existence of a breach by ICS and fashion an appropriate remedy for AROK, then the terms of their agreement are reasonably *298 certain and enforceable. Thus, "gaps" or omitted terms, or vague and indefinite terms, are not invariably fatal to the rights of the parties to obtain enforcement of their bargain.
The terms of this contract are sufficiently certain for two independent reasons. First, ICS breached the contract at a point when the only terms necessary to determine the existence of the breach (scope of work) and for giving an appropriate remedy (agreed-upon price) were present. Second, there was evidence of a course of dealing involving a standard form contract which could be used to supply any missing terms.
Because the breach by ICS was a total breach of the contract ICS refused to allow AROK to perform the work the absence of contract terms such as bonding is not fatal to AROK's claim. Only "[i]f the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken" does a contract not exist. RESTATEMENT (SECOND) OF CONTRACTS § 33 comment a. Otherwise, the courts will supply an omitted term, even one "essential" to the contract. Id. at § 204. In this case, the refusal by ICS to honor the agreement is a total breach. If ICS made a binding promise to pay AROK for this work, there is sufficient basis for deciding whether a breach occurred even without "gap-filling" by a court.
Applying the view of contract law embraced by Corbin, the RESTATEMENT, our supreme court and courts elsewhere, we hold that the agreement is sufficiently definite to be enforceable. The terms of the oral contract are sufficient to show a breach and to guide the court in awarding an appropriate remedy. The agreement included the scope of the work and price.[10] ICS was in total breach by refusing to allow AROK to perform the drywall and stucco work. The agreed price, together with other evidence such as the cost to AROK of performing the work, will enable the court to give an appropriate remedy. See RESTATEMENT (SECOND) OF CONTRACTS § 347.[11] The superior court erred in entering summary judgment in favor of ICS on the ground that the contract was too indefinite.
Even if some terms of the oral contract between AROK and ICS were missing or uncertain, "extrinsic evidence is always admissible to aid in interpretation and to establish the meaning that was intended by the parties." CORBIN, supra, at 409. Moreover, omitted terms may be supplied by the court. RESTATEMENT at § 204. This approach is clearly the law in Arizona. In Triangle Const. v. City of Phoenix, 149 Ariz. 486, 491, 720 P.2d 87, 92 (App. 1985), this court held that the court could supply a "reasonable" price to fill an omitted price term. In Darner Motor Sales, our supreme court adopted Corbin's view of extrinsic evidence:
In Arizona, ... the interpretation of a negotiated agreement is not limited to the words set forth in the document. Evidence on surrounding circumstances, including negotiation, prior understanding, subsequent conduct and the like ... may be used to interpret the meaning of the provisions contained in the agreement.
140 Ariz. at 393, 682 P.2d at 398.
One form of admissible extrinsic evidence is course of dealing. "[A]n offer which appears to be indefinite may be given *299 precision by usage of trade or by course of dealing between the parties." RESTATEMENT (SECOND) OF CONTRACTS § 33, comment a. Course of dealing is defined by RESTATEMENT § 223:
(1) A course of dealing is a sequence of previous conduct between the parties to an agreement which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.
(2) Unless otherwise agreed, a course of dealing between the parties gives meaning to or supplements or qualifies their agreement.
RESTATEMENT § 223, comment b explains that course of dealing "may become part of an agreement ... by tacit recognition, or it may guide the court in supplying an omitted term.... [I]t may determine the meaning of language or it may annex an agreed but unstated term."
In this case, ICS used essentially the same standard form contract with the subcontractor it ultimately employed as the form which the principals of ICS had used with AROK in three prior contracts. This raises a question of fact as to whether a course of dealing occurred. If the trier of fact determines that the use of the form contract represents a course of dealing, the form would provide all of the terms which ICS now alleges are essential but lacking. See, e.g., Hughes v. Jemco, Inc., 201 So.2d 565 (Fla.App. 1967) (prior lease agreements showed that "lease brief" was a binding contract and allowed the court to fill in missing terms).
The dissent suggests that no enforceable contract could exist because the parties contemplated reducing their oral agreement to writing. 174 Ariz. at 300, 848 P.2d at 879. ICS does not advance this argument on appeal. Nor did the superior court rest its decision on this point. Moreover, the bidding documents constituted a written basis for contract, although not addressing every conceivable term. See Beck v. Arcrete, 515 S.W.2d 712. Most importantly, the law is otherwise. RESTATEMENT § 27 provides:
Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations.
"Formal execution may be a mere formality and have little to do with the actual existence of the contract." MICHAEL S. SIMON, CONSTRUCTION CLAIMS AND LIABILITY, § 5.6, at 112 (1989). See, e.g., Beck v. Arcrete, 515 S.W.2d 712.
We therefore conclude that even if the parties anticipated making a written agreement, that fact alone does not preclude as a matter of law a jury finding that an oral contract was made. See Edward L. Nezelek, Inc. v. Southern Bell Tel. & Tel. Co., 383 So.2d 979 (Fla.App. 1980) (whether parties intend to be bound prior to a further writing is question for jury).
III.
AROK also claims that it is entitled to relief based upon promissory estoppel. We hold that this is a proper claim for relief as an alternative to the contract claim.
If AROK can show that it acted or detrimentally relied upon ICS's promise to award the contract, then promissory estoppel is available. For example, AROK performed "value engineering" allegedly in reliance upon ICS's promise. AROK may also have foregone other work because it anticipated employing its resources in performing this contract. RESTATEMENT (SECOND) OF CONTRACTS § 90(1) states:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.
Promissory estoppel was recognized as a proper alternative remedy in a closely analogous case. Electrical Constr. Maint. v. *300 Maeda Pacific Corp., 764 F.2d 619 (9th Cir.1985).
However, the remedy under this theory may be more limited than damages for breach of contract. "The remedy granted ... may be limited as justice requires." RESTATEMENT § 90(1). "In particular, relief may sometimes be limited to restitution or to damages or specific relief measured by the extent of the promisee's reliance rather than by the terms of the promise." Id. at comment d. Thus, AROK may be entitled to recover only the value of its work in "value engineering" unless it can show greater loss due to its reliance.
For the reasons stated above, we reverse the superior court's judgment in favor of ICS and against AROK and remand the case back to the superior court for further proceedings consistent with this opinion. We grant AROK's request for attorneys fees and direct it to file an application pursuant to Ariz.R.Civ.App.P. 21 and in compliance with Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App. 1983).
CLABORNE, J., concurs.
JACOBSON, Presiding Judge, dissenting.
I find myself in the minority and therefore dissent. The majority seems to find the case of Schade v. Diethrich, 158 Ariz. 1, 760 P.2d 1050 (1988), to be of such earthshaking departure from previous contract law as to reverse, sub silentio, settled supreme court case law in the area of construction contracts.
Before discussing this "new" revelation, I find it necessary to supply some facts not discussed by the majority. The majority opinion correctly sets forth the chronology of events between ICS and AROK, up to the point that AROK submitted its written bid confirmation. What the majority fails to mention is that this bid confirmation contained terms that were different from those contained in ICS's standard contract. Moreover, although the parties had engaged in dealings four years prior to the negotiations involved here, AROK was not aware of what the terms of the ICS subcontract would be, having not seen the contract ICS ultimately used for the drywall subcontractors until after this litigation was commenced.
AROK was also aware that at the time ICS made its alleged promise[12] as to employment, any oral agreements would have to be reduced to writing. Also, ICS's standard contract contained a no-damages-for-delay provision that was not acceptable to AROK; AROK would not have entered into a contract containing such a clause. In addition, AROK's president testified that there would be a "real war" over a "pay-when-paid" clause in ICS's standard contract. In short, AROK's president expected post-bid discussions with ICS concerning the "conflicts" between ICS's standard subcontract and AROK's standard proposal. He testified that "where [ICS's] boiler plate form conflicted with [AROK's] boiler plate form, that would have to be worked out ...," and he expected "discussions over some of those items" and would have "expected possible changes." A written contract embracing these "possible changes" was never entered into between the parties. These additional facts are basically undisputed and are neither favorably or unfavorably presented.
I now turn to what the majority contends are diametrically opposed concepts of contract law embraced by Savoca Masonry v. Homes & Sons Construction Co., 112 Ariz. 392, 542 P.2d 817 (1975) and Schade v. Diethrich. I note that the majority agrees that if Schade does not "more accurately reflect Arizona's common law of contracts," then Savoca Masonry is controlling and this case must be affirmed.
Any analysis as to whether Schade has such an effect must begin with a true understanding of both the factual predicate for the Schade decision and its legal conclusions, for reversals of prior settled law are not to be lightly implied, particularly where the case allegedly overruled is not *301 even mentioned in the overruling decision. Litigants should be entitled to rely upon previous decisions of the supreme court until they are clearly overruled. Sligh v. Watson, 67 Ariz. 95, 191 P.2d 724 (1948).
Schade involved the termination of an employment contract with a long time valued employee. The trial court, after a trial, made extensive findings of fact. The facts deemed dispositive by the supreme court in its decision were:
[T]here were a number of oral conversations among Schade, Diethrich and Diethrich's attorney and agent Paul Meyer culminating in an offer made to Schade by Diethrich that if Schade would resign his employment with both Defendants and the International Heart Foundation effective immediately, Schade would receive fair and equitable severance benefits based on his tireless service of 10 1/2 years and his unique contributions, that an unbiased committee would be appointed to make recommendations as to the amount of fair and equitable severance benefits and Schade would continue to work toward presenting the International Cardiovascular Congress IV.
158 Ariz. at 7-8, 760 P.2d at 1056-57.
Moreover, as noted by the supreme court:
In this case, both Schade and Diethrich began performing within days of making the contract. Having accepted Diethrich's offer by resigning his former position on November 17, 1982, Schade undertook his newly defined duties for the Congress the next day. According to the terms of his agreement with Diethrich, he continued to perform these duties in support of the Congress through March 6, 1983. Diethrich, for his part, attended the Foundation's board meeting on December 22, 1982 to personally request the appointment of the committee that would formulate Schade's severance package. By these acts the parties clearly manifested their joint understanding that they were bound by their promises.
158 Ariz. at 10, 760 P.2d at 1059 (emphasis added).
The only thing missing from the agreement was the "fair and equitable severance agreement" to be decided by an impartial committee. The supreme court noted, "Assuming they [the committee] acted in good faith, Diethrich and Schade impliedly agreed to accept the Committee's recommendation if they found it fair and equitable." Schade, 158 Ariz. at 11, 760 P.2d at 1060 (emphasis in original).
The supreme court found that the implied agreement to be bound by what was "fair and equitable" did not render the agreement incapable of either being formed or enforced. In doing so, the court relied upon the one hundred year old decision in Joy v. City of St. Louis, 138 U.S. 1, 11 S.Ct. 243, 34 L.Ed. 843 (1891).
In Joy, the United States Supreme Court held:
Although the statement is that the compensation is to be such "as may be agreed upon by such companies," yet the statement that it is to be "fair and equitable" plainly brings in the element of its determination by a court of equity.... If the parties agree upon it, very well; but if they do not, still the right was is to be enjoyed upon making compensation, and the only way to ascertain what is "fair and equitable" compensation therefore is to determine it by a court of equity. In this view, it cannot be said that the court is making an agreement for the parties which they did not make themselves.
138 U.S. at 43, 11 S.Ct. at 255. In adopting this reasoning, the court in Schade held:
Here, as in Joy, if the parties could agree upon what was "fair and equitable," then "very well; but if they [did] not," then the Committee's recommendation might be agreed upon, but if not, what was to be "fair and equitable compensation ... [would be] determine[d] ... by a court of equity."... The trial court found ... that the recommendation [of the Committee] was "fair and equitable" and adopted it.... The trial court's finding was supported by credible evidence, and we, in turn, are bound by the trial court's finding.
*302 158 Ariz. at 11, 760 P.2d at 1060 (citations omitted).
In essence, what Schade holds, completely in keeping with long-established principles of contract law, is that if the parties agree to abide by what is "fair and equitable," assuming contractual intent, the parties impliedly agree that the fact that the future determination of what is "fair and equitable" may be settled by a court does not make the contract indefinite. See Henderson Bridge Co. v. McGrath, 134 U.S. 260, 10 S.Ct. 730, 33 L.Ed. 934 (1890) (holding a promise to do "what is right" enforceable so long as it was made with contractual intent); Brennan v. Employers' Liability Assurance Corp., 213 Mass. 365, 100 N.E. 633 (1913) (holding that a promise to "make it right" did not fail for indefiniteness); Noble v. Joseph Burnett Co., 208 Mass. 75, 82, 94 N.E. 289 (1911) (upholding the enforceability of a promise to pay "a fair and equitable share of the net profits" as neither so indefinite nor so impracticable that it cannot be applied with reasonable certainty).
Again, Schade relies upon well settled principles of contract law when it quotes from RESTATEMENT (SECOND) OF CONTRACTS § 33(3) and the comment to that section:
The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.
.....
But the actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon.
158 Ariz. at 9, 760 P.2d at 1058.
In Schade, the trial court found that by reason of the parties' action in proceeding to perform the agreement, they manifested an intent to conclude a binding agreement. The supreme court concurred in this conclusion. Thus, Schade is not a bump in the universal fabric of contract law; nor does it reflect a "realist approach" to contract law; it merely restates settled principles.
Unlike Schade, in this case there were no actions by the parties that would indicate they intended to enter into a binding agreement; everyone agreed that the oral promises needed to be reduced to writing. In this case, the parties did not agree to be bound by what was "fair and equitable." Rather, the entire contract, including disputed provisions dealing with "no-damage-for-delay" and "pay-when-paid," was unresolved. The majority contends that these "missing terms" can be supplied by looking to the custom utilized by the parties in the past. Aside from the fact that certain provisions of this "standard contract" required further negotiations, the law is clear that custom and usage cannot be used to provide missing essential elements of a contract, but only to clarify or explain terms in a contract already formed. Savoca, 112 Ariz. at 395, 542 P.2d at 820.
Moreover, what parties may have been willing to agree to years before, does not mean these same terms would be agreeable today. Time and circumstances change the economic feasibility of construction contracts. Business relationships should not be cast forever in the same contractual mold.
Thus, the majority, unlike the court in Schade, is not merely supplying "a missing term," it is creating a contract for the parties, which they themselves refused to create.[13] I would affirm on the clear authority *303 of Savoca, not having the omnipotence to forecast that the present supreme court would decide that case differently today.
NOTES
[1] In contrast, the dissenting opinion appears to view the record favorably to ICS.
[2] ICS' predecessor, Indian National Developers, Inc., was a joint venture between Chris Evans, Inc. and Luke Johnson, an Indian. Chris Evans, Inc. was a union contractor which was allowed to become inactive; Evcor, a non-union entity, was incorporated to take its place. Evcor's chain of command, officers, directors, and shareholders are identical to those of Chris Evans, Inc.
[3] The dissent notes that AROK expressed such dissatisfaction with some terms of the standard form agreement that, in hindsight, it doubted that it would have agreed to those terms. The proper standard of review on this appeal requires us to also consider contrary testimonial evidence that AROK was agreeable to these terms and the course of dealing in which AROK had agreed to these very terms on three prior occasions. Moreover, the evidence is sufficient to support a conclusion that the contract was formed by oral agreement prior to the execution of the written document. Any different or added terms in the written form would be modifications to the existing contract. See RESTATEMENT (SECOND) OF CONTRACTS § 27, comment d. Disagreement after the bargain has been struck over changes or additions to agreed upon terms does not undo the existing contract.
[4] condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due." RESTATEMENT (SECOND) OF CONTRACTS § 224 (1981). If ICS had not been awarded the contract, it would not have been required to pay for the subcontract work under the oral contract. ICS's promise to award the subcontract to AROK if ICS were awarded the general contract is an enforceable conditional promise supported by consideration. See Electrical Constr. & Maint. v. Maeda Pacific Corp., 764 F.2d 619 (9th Cir. 1985).
[5] Constr. Maint. v. Maeda Pacific Corp., 764 F.2d at 621. See Carroll v. Lee, 148 Ariz. 10, 13, 712 P.2d 923, 926 (1986); RESTATEMENT (SECOND) OF CONTRACTS § 71.
[6] This was also the expressed basis for the superior court's decision.
[7] The third factor is not at issue on this appeal because ICS has conceded that, for purposes of the appeal, the offer was accepted.
[8] The conduct of the parties confirms their intention to be bound. Not only does ICS concede for the purposes of this appeal that the elements of offer, acceptance, and consideration were present, ICS requested that AROK perform "value engineering" services after ICS was awarded the general contract. Value engineering consists of changing the bid structure to lower the overall bid price without changing the profit structure for either the general contractor or the subcontractor. AROK suggested various changes in the methods and design of the work. This work product was provided to and utilized by ICS. Only months later did ICS question the amount of AROK's bid. AROK, relying on ICS's statement that "If we get the job, you get the job," performed services for ICS. The words and actions of the parties create at least a question of fact as to whether they intended to conclude a binding agreement.
[9] See Darner Motor Sales v. Universal Underwriters Ins. Co., 140 Ariz. 383, 393, 682 P.2d 388, 398 (1984); Richard Speidel, Restatement Second: Omitted Terms and Contract Method, 67 CORNELL L.REV. 785 (1982).
[10] Although ICS and AROK dispute the actual amount of the price, they concur that a price term was agreed upon. Therefore, whether the price was $1.4 million as AROK alleges or $1.3 million as ICS alleges is a question of fact for the jury to determine. Even an omitted price term, however, is not fatal to contract formation: "Where a contract price is left to future agreement by the parties and they fail to agree, the price is a reasonable one." Triangle Const. v. City of Phoenix, 149 Ariz. 486, 491, 720 P.2d 87, 92 (App. 1985).
[11] (SECOND) OF CONTRACTS § 347. Measure of Damages in General
Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by
(a) the loss in the value to him of the other party's performance caused by its failure or deficiency, plus
(b) any other loss, including incidental or consequential loss, caused by the breach, less
(c) any cost or other loss that he has avoided by not having to perform.
[12] For purposes of summary judgment only, ICS does not dispute AROK's factual assertion that its agent said, "if we get the job, [AROK] gets a job."
[13] I also believe the majority goes too far in "holding" that "AROK's offer its bid was accepted by ICS," at 296, 848 P.2d at 875, when that question was not at issue on appeal "because ICS has conceded that, for purposes of the appeal, the offer was accepted," at 296 n. 4, 848 P.2d at 875 n. 4.
Furthermore, although the majority observes that "[t]he words and actions of the parties create at least a question of fact as to whether they intended to conclude a binding agreement," at 297 n. 9, 848 P.2d at 876 n. 9, it then concludes that ICS's refusal to allow AROK to perform the work "was a total breach of the contract," at 298, 848 P.2d at 877, apparently as a matter of law. Thus, on remand, it appears there is nothing left for the trier of fact to do but to determine damages if it is to act "consistent with this opinion," at 298-99, 848 P.2d at 877-78.
I believe these holdings are beyond the scope of our review on appeal from summary judgment, where the only issue before us is whether the trial court erred in finding no issue of material fact regarding the formation of a contract.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6457
JAMES MUHAMMAD, Ahmad Muhammad-Ali,
Plaintiff - Appellant,
v.
CORRECT CARE SOLUTIONS; DEPARTMENT OF MENTAL HEALTH, THE;
CLIENT ISAIAH HEMPHILL, and Family,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Mary G. Lewis, District Judge.
(1:16-cv-00261-MGL)
Submitted: July 28, 2016 Decided: November 2, 2016
Before MOTZ and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Muhammad, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Muhammad appeals the district court’s order accepting
the recommendation of the magistrate judge and denying relief on
his civil complaint. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Muhammad v. Correct Care Solutions, No.
1:16-cv-00261-MGL (D.S.C. Mar. 1, 2016). 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.
AFFIRMED
2
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634 N.W.2d 456 (2001)
Janet A. LISHINSKI and Gary H. Lishinski, individually and as Trustees for the heirs and next-of-kin of Jessica A. Lishinski, Respondents,
v.
CITY OF DULUTH, Appellant.
No. CX-01-747.
Court of Appeals of Minnesota.
October 16, 2001.
*457 H. Jeffrey Peterson, Alicia L. Cope, Virginia, MN, for respondents.
Bryan F. Brown, City Attorney, M. Alison Lutterman, Deputy City Attorney, Cynthia Albright, Assistant City Attorney, Duluth, MN, for appellant.
Considered and decided by PETERSON, Presiding Judge, AMUNDSON and ANDERSON, Judges.
OPINION
G. BARRY ANDERSON, Judge
Appellant City of Duluth challenges the district court's denial of its motion for summary judgment based on statutory recreational immunity, arguing that the court erred in concluding that whether an artificial and allegedly dangerous condition was "hidden," such that appellants would have a duty to warn, involved a genuine issue of material fact. Because we agree that there is a genuine issue of material fact, we affirm denial of summary judgment.
FACTS
Respondents Janet A. Lishinski and Gary H. Lishinski, individually and as trustees for the heirs and next-of-kin of Jessica A. Lishinski, filed this wrongful-death action against appellant City of Duluth. The Lishinski's daughter, Jessica A. Lishinski, died as the result of injuries sustained while in-line skating on a blacktop pathway in Duluth's Leif Erickson Park.
At approximately 5:30 p.m. on May 18, 1999, Jessica Lishinski, a 21-year-old college student, and her roommate, Shari Undeland, decided to go in-line skating along Lake Superior on the Lakewalk path. The women drove to Canal Park, parked their car, and skated along the Lakewalk path. A sign placed along the path instructed in-line skaters to "[u]se blacktop only." As they approached Leif Erickson Park, the women stopped atop a hill to decide which way to go. The Lakewalk path continued through the park, while a path known as the "park path" veered to the right, toward a stage and Lake Superior. Both paths were blacktop and had a downward gradient, and the Lakewalk path was approximately one yard wider than the park path. There were no signs in Leif Erickson Park restricting the use of bicycles, in-line skates, or skateboards. Lishinski suggested that the two women use the path closer to the lake for that reason.
The park path leads to a stone stage, which abuts the natural slope of the Lake Superior shoreline and the beach area below. As the path approaches the stage, it curves sharply to the left, behind the stage, and straightens out for a short distance. The surface of the path then changes from blacktop to pavement stone. The pavement change is not visible until the skater turns the corner. Lishinski had never been on the park path before.
Lishinski, an experienced in-line skater, headed down the park path towards the stage. Undeland initially followed, but stopped to remove her skates because she was not comfortable going down the hill. While removing her skates, Undeland heard a crash and saw people running behind the stage. Undeland approached the area and saw Lishinski lying on the rocks near the lake. Lishinski died from her injuries.
*458 Undeland did not see the accident, and no other eyewitnesses to the accident have been identified. Undeland stated in her deposition (a) that Lishinski had not consumed alcohol or taken drugs prior to the accident and was not racing, skating inappropriately or skating in a reckless manner, and (b) that immediately prior to the accident, Lishinski was standing up straight and not doing anything out of the ordinary.
Appellant City of Duluth asserted a defense of recreational immunity pursuant to Minn.Stat. § 466.03, subd. 6e (1998), and moved for summary judgment. The district court denied the motion, concluding that there were genuine issues of material fact regarding whether the allegedly artificial dangerous condition was "hidden," such that appellant had a duty to warn of the alleged danger. This appeal follows.
ISSUE
Did the district court err by denying summary judgment and concluding, as a matter of law, that the city was not entitled to recreational-use immunity pursuant to Minn.Stat. § 466.03, subd. 6e (1998)?
ANALYSIS
On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence is viewed in the light most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Summary judgment is appropriate when a governmental entity establishes that its actions are immune from liability. In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 546 (Minn.App.1997), review denied (Minn. June 26, 1997). Whether governmental action is protected by statutory immunity is a question of law, which we review de novo. Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996).
Appellant argues that the district court erred by concluding that the city was not entitled to recreational-use immunity under Minn.Stat. § 466.03, subd. 6e (1998). That statute provides that a municipality is immune from tort claims
based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, * * * if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.
Id. Accordingly, a municipality is entitled to recreational-use immunity unless its conduct would entitle a trespasser to recover damages against a private person. Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App.1995).
The general-trespasser standard of the Restatement (Second) of Torts § 335 (1965) defines the duty owed by a municipality to users of its recreational facilities. Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn.1994); Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn.1984). Section 335 provides that a possessor of land is subject to liability for bodily harm caused to a trespasser by an artificial condition on the land if
(a) the condition
(i) is one which the possessor has created or maintains and
*459 (ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespasser and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it and,
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.
Schaffer, 541 N.W.2d at 360 (quoting Restatement (Second) of Torts § 335 (1965)). A plaintiff must prove all of the elements of section 335 to defeat immunity. Id.
Under section 335, "a landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner." Sirek v. State, Dep't of Natural Res., 496 N.W.2d 807, 810 (Minn.1993). Whether a condition was hidden or concealed depends on the visibility of the condition, not on whether the injured party actually saw the danger. Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn.1994). If "a brief inspection would have revealed the condition, it is not concealed." Johnson v. State, 478 N.W.2d 769, 773 (Minn.App.1991) (citation omitted). Recreational users are required to be alert to conditions existing on the land. Sirek, 496 N.W.2d at 812.
Appellant argues that Minnesota law requires an objective analysis of whether a condition is hidden and that the district court failed to apply that law to the facts of this case. See Steinke, 525 N.W.2d at 177 (common earthen drainage ditch not hidden or artificial condition, where plaintiff failed to make even cursory inspection of land before snowmobiling); Sirek, 496 N.W.2d at 812 (state immune for injuries to supervised six-year-old girl who ran in front of car, crossing highway that was visible for 100 feet before trail ended); Schaffer, 541 N.W.2d at 361 (municipality immune from liability where 14-year-old girl ran into metal barrel while skiing, because barrel was not a hidden hazard and large portion of barrel and its yellow top were visible); Watters v. Buckbee Mears Co., 354 N.W.2d 848, 851 (Minn. App.1984) (under restatement, vertical drop in dirt hill was not concealed from plaintiff injured while four-wheeling because brief inspection would have revealed it).
Appellant argues that because the alleged dangerous condition could have been seen with a brief inspection, under Minnesota law, it was not hidden. Appellant contends that, as a result, summary judgment was appropriate.
The district court, however, rejected this argument, stating:
[Appellant] points to several cases in which our appellate courts have held certain particular hazards were not hidden from view and that as a result[,] persons injured in incidents were not entitled to recovery under the statute. The Court finds those cases distinguishable, however. The [respondents] here have presented evidence to suggest the particular hazard claimed to exist was hidden or concealed in nature rather than obvious upon reasonable inspection.
(Emphasis added.)
We agree. In Sirek, the highway where the child was struck was visible 100 feet before the trail ended and was not hidden. Sirek, 496 N.W.2d at 812. In Schaffer, photographs taken the day of the skiing accident reveal that the yellow barrel was clearly visible to skiers. Schaffer 541 N.W.2d at 359. And, in Watters, the men who were four-wheeling had been drinking and two of them had been on the property before and were familiar with the area. Watters, 354 N.W.2d at 849.
*460 We find Noland v. Soo Line R.R., 474 N.W.2d 4 (Minn.App.1991), review denied (Minn. Sept. 13, 1991), helpful. In Noland, this court reversed a grant of summary judgment, concluding that material facts were in dispute and warranted a trial. Id. at 7. A snowmobiler had driven over the side of a railroad trestle and was injured. Id. at 5. There was no evidence that the snowmobiler had been in the area before or was aware that she was on a trestle at the time of the accident. Id. Moreover, the snowmobiler stated that the trestle was covered with snow and that visibility had been reduced by darkness and blowing snow. Id. This court concluded that because "[t]hese conditions may have obscured the trestle enough to make it difficult for even an attentive snowmobiler to discover," the plaintiff had raised "a fact question about whether the trestle was so concealed respondent had reason to believe trespassers would not discover it." Id. at 7. Thus, there was a fact question as to whether the allegedly dangerous condition involved in that accident was hidden or concealed.
Appellant disputes the applicability of Noland to this case, arguing that the defendant in that case did not argue that the condition was visible, but rather that the trestle was not on a snowmobile trail and the plaintiff should have known that she was on a railroad right-of-way. See id. But this court clearly described the "fact question" raised by the plaintiff as "whether the trestle was so concealed [the defendant] had reason to believe trespassers would not discover it." Id. (emphasis added).
Appellant asserts that because variations in the surface of multi-use trails should be anticipated, recreational immunity should apply. See Johnson, 478 N.W.2d at 773 (municipality immune where pedestrian tripped over uneven sidewalk and fell); Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 520 (Minn.App.1998) (municipality immune where tennis player tripped over court tape). We disagree. In Johnson, the pedestrian admitted that she was looking down as she walked over a sidewalk joint and fell. Johnson, 478 N.W.2d at 773. In Lundstrom, the tennis player admitted that he saw the tape on the court prior to tripping on it. Lundstrom, 587 N.W.2d at 520. In contrast, Lishinski had never been on the park path before, and the sharp curve and changing surface of the path were concealed by the stage. No signs warned of danger.
We conclude that the district court did not err by denying summary judgment. Appellant's posted signs instructed Lishinski to stay on the blacktop path. The park path, although a little narrower that the Lakewalk path, was made of blacktop. There was no warning of either the curve or the surface change. Pictures from the scene of the accident demonstrate that the park path appears to continue with the same surface conditions behind the stage as before and after the stage. Two experts testified that in-line skaters were not likely to discover the hidden danger until they found themselves imperiled. Appellant conceded at oral argument that an in-line skater is not required to walk an entire pathway before skating.
We note that we need not speculate as to whether respondents will succeed in their lawsuit, but must only determine whether the district court erred in finding that a genuine issue of material fact remains for trial. Viewing the evidence in the light most favorable to respondents, we agree with the district court that it is for the jury to decide whether the condition behind the stage was hidden or whether brief inspection would have revealed the condition.
*461 Appellant also argues that the district court clearly erred by viewing subjectively whether Lishinski actually saw the alleged dangerous condition. For support, appellant cites the following statement by the court:
Clearly, if decedent had inspected the area behind the stage it would have been readily apparent the character of the pathway changed abruptly very shortly after it went behind the stage structure.
But the district court also said:
As noted, however, viewed from the brow of the hill[,] the pathway arguably appeared to proceed with the same surface characteristics behind the stage as before it and after it. In effect, [respondents] suggest the setup of the pathway created the illusion of a continuity of the pathway surface. The Court is asked by [appellant] to conclude as a matter of law, given the particular facts and physical configuration of the pathway, the hazard was not hidden and that decedent must bear sole responsibility for proceeding as she did. The Court concludes neither the record nor the law supports defendant's request for relief on this ground. This issue is properly one for jury determination.
It is clear from the above language that the district court did not focus on whether the decedent actually saw the alleged dangerous condition, but instead took an objective viewpoint. Appellant's argument is without merit.
In the reply brief, appellant argues that respondents have failed to prove the cause of Lishinski's accident. But as appellant admits in its brief, interlocutory appeal is not available for the denial of a motion for summary judgment based on a lack of evidence to sustain a finding of causation. A governmental entity is entitled to appellate review of an adverse ruling on a claim of immunity, but orders denying summary judgment are generally not appealable, and interlocutory review does not extend to issues that do not involve immunity from suit. McDonough v. City of Rosemount, 503 N.W.2d 493, 496 (Minn.App.1993), review denied (Minn. Sept. 10, 1993). Therefore, any arguments regarding causation are beyond the scope of this appeal.
DECISION
The district court properly denied summary judgment because a genuine issue of material fact remains for the jury. The jury must determine whether the condition of the park path was hidden from Lishinski and whether a brief inspection would have revealed the condition. We affirm the denial of summary judgment.
Affirmed.
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89 F.Supp.2d 4 (2000)
Matthew R. MARSHALL, Plaintiff,
v.
LABOR & INDUSTRIES, STATE OF, WASHINGTON
and
Attorney General, State of Washington, Defendants.
No. Civ. 99-3145(TFH).
United States District Court, District of Columbia.
March 7, 2000.
*5 *6 *7 Matthew R. Marshall, Syracuse, NY, plaintiff pro se.
Robin Dale, Office of the Attorney General, Olympia, WA, for defendant.
MEMORANDUM OPINION
THOMAS F. HOGAN, District Judge.
Pending before the Court are plaintiff's Motion for Default Judgment and defendants' Motion for Summary Judgment. Upon consideration of these motions and the entire record herein, this Court will deny plaintiff's Motion for Default Judgment and grant defendant's Motion for Summary Judgment.
I. BACKGROUND
Plaintiff's complaint alleges that the State of Washington failed to award him adequate workers' compensation benefits for an on-the-job injury which he allegedly suffered in June of 1993. This is the third suit brought by plaintiff concerning this injury. The first suit was filed on October 18, 1996 in King County Superior Court of the State of Washington. See Declaration of Assistant Attorney General Robin Dale, p. 1; see also Complaint for Washington suit (Exhibit A to defendants' motion for summary judgment). In that lawsuit, Mr. Marshall, then a Washington resident, alleged that the State of Washington and the other defendants had mismanaged his *8 workers' compensation claim, causing him significant pain and loss of income. On December 6, 1996, Mr. Marshall moved for default; the default was denied by Superior Court Judge Alsdorf, because Plaintiff had failed to serve any of the Defendants. Id. On April 2, 1997, the allegations against the State of Washington and the Department of Labor & Industries were dismissed. See Order granting defendant Labor & Industries's motion for summary judgment (Exhibit B to defendants' motion).
On or about August 2, 1997, Assistant Attorney General Dale learned that Mr. Marshall had filed another lawsuit against the State of Washington; this time, the suit was pending in the Supreme Court for the County of Onondaga in New York State. Id.; see also Complaint for New York action (Exhibit C to defendants' motion). Upon reviewing the New York action, Assistant Attorney General Dale realized that it was the exact same suit that Mr. Marshall had unsuccessfully brought against the State of Washington in Washington State. Id. The New York lawsuit was dismissed in January of 1998. Id.; see also Order of dismissal (Exhibit D to defendants' motion).
Review of this lawsuit reveals that it is nearly identical to the lawsuits filed in King County, Washington and Syracuse, New York. Id.
II. THE SUMMARY JUDGMENT STANDARD
In order to withstand a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. Fed.R.Civ.P. 56(e). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In the absence of such facts, "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. However, in opposing a motion for summary judgment, a party is not entitled to rely solely on the allegations of its complaint. Rule 56 provides that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
III. DISCUSSION
A. Because All Alleged Tortious Conduct Occurred in Washington State, this Court lacks Jurisdiction over this Case
Plaintiff's complaint alleges that he was deprived of his Washington State workers' compensation benefits as a result of "professional negligence" of the State of Washington's Department of Labor & Industries, and the Office of the Attorney General of the State of Washington. See Complaint at 1. This "professional negligence" apparently took the form of a delay in processing his workers' compensation benefits from mid-1995 to 1996. See Complaint at ¶ IV. Therefore, this case represents assertions by a former Washington State resident against the State of Washington and its agencies for actions that took place in the State of Washington. Construing these alleged facts in the light most favorable to Plaintiff, this Court finds that it cannot establish jurisdiction over this case.
To establish personal jurisdiction over a non-resident, a court must engage in a two-part inquiry:
*9 A court must first examine whether jurisdiction is applicable under the state's long-arm statute and then determine whether a finding of jurisdiction satisfies the constitutional requirements of due process.
See GTE New Media Servs., Inc. v. Bell-South Corp., 199 F.3d 1343, 1347 (D.C.Cir. 2000); United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995).
1. This Court Cannot Establish Jurisdiction Under the District's Long-Arm Statute
The District's long-arm statute provides, in relevant part, that:
[a] District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's(1) transacting any business in the District of Columbia; ... (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia, if he [i] regularly does or solicits business, [ii] engages in any other persistent course of conduct, or [iii] derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.
D.C.Code Ann. § 13-423(a) (1981).
The Court of Appeals for the D.C. Circuit has determined that:
A plaintiff seeking to establish jurisdiction over a non-resident under the foregoing provisions of the long-arm statute must demonstrate, pursuant to section (a)(i), that the plaintiff transacted business in the District, or show, pursuant to section (a)(4) that the plaintiff has caused tortious injury in the District, the injury was caused by the defendant's act or omission outside of the District, and the defendant had one of the three enumerated contacts with the District.
GTE New Media Servs. Inc., 199 F.3d at 1347.
In the present case, none of the requirements of the long-arm statute have been met. The Department of Labor & Industries and the Office of the Attorney General for the State of Washington do not solicit or transact business with the District of Columbia, nor was there any action taken by defendants causing harm within the District of Columbia. Since neither the plaintiff nor the defendants have any connection to the District of Columbia and all of the tortious acts alleged by plaintiff occurred in the State of Washington while plaintiff was a resident of Washington State, plaintiff cannot establish the requisite minimum contacts necessary to invoke the District's long-arm statute. Consequently, this Court lacks jurisdiction over the defendants in this case.
2. Assumption of Jurisdiction Would Offend Traditional Notions of Due Process
Even when the literal terms of the long-arm statute have been satisfied, a plaintiff must also show that the exercise of personal jurisdiction is within the permissible bounds of the due process clause. GTE New Media Servs., Inc., 199 F.3d at 1347. In other words, a plaintiff must show "minimum contacts" between the defendant and the forum so that the "maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, et al., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Under the "minimum contacts" standard, courts must insure that the defendant's conduct and connection with the forum "are such that he should reasonably anticipate being hauled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The constitutional test is whether the defendant purposefully established "minimum contacts" in the forum state. Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 *10 U.S. 102, 108-109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Minimum contacts consist of "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id. at 109, 107 S.Ct. 1026.
In this case, the Department of Labor & Industries for the State of Washington and the Office of the Attorney General for the State of Washington have no agencies or offices stationed in the District of Columbia, and they perform no commercial activities here. See Declaration of Assistant Attorney General Dale at 2-3. Furthermore, the State of Washington cannot reasonably be expected to assume that one of the consequences of administering the state's workers' compensation system within the boundaries of Washington State would be a lawsuit in the District of Columbia. The fact that a resident of the State of Washington, who alleges that he was denied workers' compensation, has moved to the District of Columbia is insufficient grounds for the State of Washington to reasonably foresee being hauled into this Court. The concept of minimum contacts is designed to ensure that courts do not reach beyond the limits imposed on them by their status as co-equal sovereigns in a federal system. Asahi, 480 U.S. at 113, 107 S.Ct. 1026. Where a state has not deliberately availed itself of the benefits and protections of another state's jurisdiction, the due process clause acts to prevent the forum state from asserting jurisdiction. In this case, assumption of jurisdiction over the State of Washington's Department of Labor & Industries and its Office of the Attorney General would offend traditional notions of due process.
B. Principles of Comity Also Dictate Dismissal of this Lawsuit
The principles of federalism and comity compel dismissal of this action. In Nevada v. Hall, 440 U.S. 410, 426, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), the Supreme Court reasoned that "it may be wise policy, as a matter of harmonious interstate relations, for states to accord each other immunity or to respect any established limits on liability." Notwithstanding the existence of jurisdiction, principles of comity allow states to decline jurisdiction over another state in order to promote friendly relations and a mutual desire to do justice. See Fernandez v. Dep't of Highways, 49 Wash.App. 28, 741 P.2d 1010, 1017 (1987). Although a state may exercise jurisdiction over other states if its state policy so dictates, the United States Constitution does not require such an exercise. Id.
In the present case, plaintiff is asking the United States District Court for the District of Columbia to determine whether a Washington State agency properly administered Washington State's workers' compensation law. The District of Columbia's interests in this suit are unclear. Moreover, at this point, there is no reason to believe that the District's law should govern resolution of questions surrounding the State of Washington's workers' compensation claim. Principles of comity dictate that these issues should be decided by a Washington court, not the United States District Court for the District of Columbia.
C. Default Is Improper Because Service of Process Has Not Been Achieved As To Any Defendant
The prerequisite to commencement of a civil suit is proper service of process. Murphy Bros. Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). In the absence of service of process, a court may not exercise power over a party whom the complainant names as a defendant. See Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987).
In the present case, neither the State of Washington's Department of *11 Labor & Industries nor the State of Washington's Office of the Attorney General were properly served. See Declaration of Assistant Attorney General Dale at 2-3. Under the Federal Rules of Civil Procedure, a state must be served in the following manner:
Service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.
Fed.R.Civ.P. 4(j)(2) (West 1999). In Washington State, the only individuals authorized by law to receive service for the state and its agencies are the Attorney General and the Assistant Attorneys General of the State of Washington. See RCWA 4.92.020 (West 1999). Plaintiff's affidavit of service filed with this Court shows that he had a copy of the case "summons" delivered by Federal Express to Ms. Linda Pietras at the Washington State Attorney General's Office. See Plaintiff's Affidavit of Service. Linda Pietras is not an Attorney General or an Assistant Attorney General with the State of Washington; she is the receptionist. See Declaration of Assistant Attorney General Dale at 2-3. Moreover, Ms. Pietras is not legally authorized to accept service on behalf of the Attorney General or any Assistant Attorney General. See RCWA 4.92.020 ("service of summons and complaint in such actions shall be served in the manner prescribed by law upon the attorney general, or by leaving the summons and complaint in the office of the attorney general with an assistant attorney general.")
Plaintiff has failed to personally serve the Attorney General or any Assistant Attorney General in Washington. See Declaration of Assistant Attorney General Dale. Accordingly, due to lack of service, plaintiff has failed to establish this Court's jurisdiction over the defendants in this action. Therefore, plaintiff's default motion must be denied and this case must be dismissed.
D. Plaintiff's Claims Against the State are Barred by the Eleventh Amendment
The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Under the Eleventh Amendment, "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Employees of Dept. of Public Health and Welfare, Missouri v. Missouri Dep't of Public Health & Welfare Dep't, 411 U.S. 279, 280, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973)). Immunity under the Eleventh Amendment extends to state agencies. Shaw v. Cal. Dep't of Alcoholic Beverage Control, 788 F.2d 600, 603 (1986) ("a suit against a state agency is considered to be a suit against the state, and thus is barred by the Eleventh Amendment."). States and their agencies are immune from suit for money damages in federal court. Welch v. Texas Dep't of Highways and Public Transp., et al., 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987).
A state is found to have waived Eleventh Amendment immunity "[o]nly where stated by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction." Micomonaco v. State of Washington, 45 F.3d 316, 319 (9th Cir.1995) (citing Atascadero State Hospital v. Scanlon, 473 U.S. 234, 239-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 *12 (1985)). Nothing in Washington's law expressly or otherwise consents to suit in federal court. See McConnell v. Critchlow, 661 F.2d 116, 117 (9th Cir.1981).
Congress may also waive a state's Eleventh Amendment immunity under certain circumstances. See Seminole Tribe of Florida v. Florida, et al., 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("Congress may abrogate states' sovereign immunity if it has `unequivocably expresse[d] its intent to abrogate the immunity' and has acted `pursuant to a valid exercise of power.'") (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). However, "Congress has not abrogated the States' Eleventh Amendment immunity against state law claims brought in federal court[.]" Mascheroni v. Board of Regents of Univ. of Calif., 28 F.3d 1554, 1560 (10th Cir.1994). Moreover, jurisdiction over plaintiff's state law claims may not be found through pendent or supplemental jurisdiction, because "neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment." Pennhurst, 465 U.S. at 121, 104 S.Ct. 900.
In this case, the State of Washington has been sued by the plaintiff in federal court. Because the State is the real party in interest, the Eleventh Amendment applies. Therefore, plaintiff's lawsuit against the State must be dismissed.
IV. CONCLUSION
For the foregoing reasons, the Court lacks jurisdiction over this action. The Court will therefore deny plaintiff's Motion for Default Judgment, grant defendants' Motion for Summary Judgment, and dismiss this case without prejudice. An order will accompany this Opinion.
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553 F.2d 99
U. S.v.Fowler*
No. 76-4452
United States Court of Appeals, Fifth Circuit
5/20/77
1
N.D.Ga.
2
AFFIRMED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
***
Opinion contains citation(s) or special notations
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738 N.W.2d 736 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Nancy Ann SEAMAN, Defendant-Appellant.
Docket Nos. 133865, 133866. COA Nos. 260816, 265572.
Supreme Court of Michigan.
September 24, 2007.
On order of the Court, the application for leave to appeal the February 13, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
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699 F.2d 874
Bennie LENARD, Plaintiff-Appellee, Cross-Appellant,v.Robert ARGENTO & Joseph Sansone, Defendants-Appellants,v.VILLAGE OF MELROSE PARK, Defendant-Appellee.
Nos. 80-2602, 80-2666, 81-2036 and 81-2434.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 10, 1981.Decided Feb. 1, 1983.As Modified Feb. 15, 1983.
John G. Poust and Stephen E. Sward, Rooks, Pitts, Fullagar & Poust, Frank Glazer, Chicago, Ill., for defendants.
Cecile Singer and Edward T. Stein, Singer & Stein, Chicago, Ill., for plaintiff-appellee, cross-appellant.
Before PELL, Circuit Judge, CUDAHY, Circuit Judge, and GRANT, Senior District Judge.*
GRANT, Senior District Judge.
This case arises from the events of January 31, 1977 involving plaintiff-appellee, Bennie Lenard, and several police officers of the Village of Melrose Park, Illinois. The particular events of the case are disputed but we will attempt to provide a fair summary of the facts.
Lenard, a 41 year old black mechanic, discovered when he left work at 7:00 A.M. on January 31 that his car had a flat tire. While waiting for the spare tire to be repaired, he and a co-worker went to a neighborhood bar where Lenard consumed two shots of vodka and two glasses of beer. After changing the tire, Lenard returned to the bar where he consumed in a 2 to 2 1/2 hour period two more shots of vodka and three glasses of beer. He had nothing to eat during this time. About 1:00 P.M., Lenard and his co-worker left the bar to go to the co-worker's home, each driving his own vehicle. While en route, Lenard collided with a car driven by Andrea Dreyer, a defendant in the district court trial but not a party in this appeal. There is a dispute whether Lenard's car crossed the center line and struck Dreyer's vehicle.
The damage to each car was minor but the drivers quarreled regarding fault. Dreyer, in her deposition, admitted shouting vulgarities at Lenard. Witnesses, including a passenger in the Dreyer car, testified Lenard appeared drunk and that he struck Dreyer's shoulder with his fist and grabbed her. The Melrose Park police were called with Officer Joseph Sansone the first to arrive at the accident scene. Officer Robert Argento arrived several minutes later.
Lenard was arrested for drunk driving and several other traffic offenses. A scuffle occurred while the officers tried to handcuff Lenard and place him in Argento's squad car. Lenard contends he was beaten by Argento with his nightstick while in the squad car and knocked unconscious. Argento searched Lenard's car after the arrest and discovered a handgun and an open half can of beer.
After his arrest, Argento drove Lenard to the Melrose Park police station where Lenard contends he was further kicked, beaten and called a "black nigger." His next memory is that of lying on the wet floor of a cell in his underwear in extreme pain and cold. He requested to go to a hospital but someone said: "Leave him alone. He doesn't want to go to the hospital." Lenard was unable to identify any of the officers because of his facial injuries. Lenard remained in custody at the Melrose Park police station until late that evening. During the evening while Lenard was still in a cell in the Melrose Park police station, Floydell Henning (Lenard's stepson) testified he heard racial slurs, i.e., "Chicken George," over the loudspeaker in the station. He could not identify the parties involved. At one point while still in police custody, Lenard was brought to the Westlake Community Hospital where he was treated for his injuries and returned to the police. Lenard complains that his family came to the jail on three occasions that evening before his release was finally obtained. Lenard was hospitalized for his injuries for 39 days and later underwent surgery for the injuries. There was medical testimony at trial that he suffered permanent sight impairment from his injuries.
Officers Argento and Sansone deny that Lenard was beaten at any time with clubs or anything else. Two witnesses present at the accident scene testified that they did not see Lenard beaten. The police contend that an altercation occurred in the icy police station parking lot while attempting to remove Lenard from the squad car. Because of his size (6'3", 260 pounds) and drunken condition, three officers, Argento, Culotta and Zito, were necessary to remove him from the car. The officers testified that Lenard swore at them and resisted being taken into the police station. The officers further contend that Lenard repeatedly fell in the icy lot and on the stairway of the station because of his constant struggling. They deny that any beating occurred and maintained Lenard's injuries occurred while resisting his removal into the police station.
Lenard was charged with the following state offenses: driving while under the influence of intoxicating beverage; improper traffic lane usage; failure to reduce speed to avoid an accident; battery; transportation or possession of alcoholic liquor; possession of a firearm without a firearm identification card; unlawful transportation or use of weapons; resisting a police officer and driving without a valid driver's license.
A jury convicted Lenard of the petty offense of transportation of alcoholic liquor, Ill.Rev.Stat.1977, Ch. 95 1/2, par. 11-502, and acquitted him on all other charges. The transportation conviction was subsequently reversed and remanded by the Illinois Appellate Court because of the trial court's refusal to allow Lenard to cross-examine the police officers for impeachment purposes. People v. Lenard, 79 Ill.App.3d 1046, 35 Ill.Dec. 104, 398 N.E.2d 1054 (1979). In dicta, however, the court did state that "[t]he evidence adduced was ample to sustain defendant's conviction." Id. 35 Ill.Dec. at 108, 398 N.E.2d at 1058.
Lenard initiated this action in a five-count complaint pursuant to several sections of the Civil Rights Act of 1871, 42 U.S.C. Secs. 1983, 1985 and 1988. The named defendants included the Village of Melrose Park, Robert Argento, Joseph Sansone, Bruce Culotta, George Zito, Andrea Dreyer, Dr. T. Mehrpuyan and Westlake Community Hospital. Westlake Hospital and Dr. Mehrpuyan reached a settlement with Lenard and they, along with Count IV of the Complaint, were dismissed from the suit. Count I of the Second Amended Complaint charged Police Officers Argento, Sansone, Culotta and Zito with violating 42 U.S.C. Sec. 19831 by beating Lenard. Count II charged these same officers with conspiracy to deprive equal protection of the law by use of brutal and excessive force on Lenard in violation of 42 U.S.C. Sec. 1985(3)2 and the Village of Melrose Park for failure to properly screen, hire, train and supervise its police employees in violation of 42 U.S.C. Secs. 1983 and 1985. Count III charged conspiracy to impede, obstruct and defeat the due course of justice with intent to deny equal protection in violation of 42 U.S.C. Sec. 1985(2).3 So charged under Count III were the Village of Melrose Park, Argento, Sansone, Culotta, Zito, Dreyer, Westlake Community Hospital and Dr. T. Mehrpuyan (the latter two were dismissed before trial). Count V charged Argento, Sansone and Dreyer with malicious prosecution for the charges resulting from the traffic accident and arrest, thereby depriving Lenard of his civil rights under 42 U.S.C. Sec. 1983.
Bifurcated trials lasting five weeks were held on liability and damages in February and March, 1980. A default judgment was entered against defendant Dreyer. In the liability phase of the trial, the jury returned a verdict for all the defendants on the "beating" charge of Count I. However, the jury found for Lenard on the two conspiracy charges of Counts II and III and the malicious prosecution charge of Count V against Argento and Sansone only. In the damage portion of the trial, Lenard was prohibited from presenting any damages resulting from the "beating" because the jury found no "beating" under Count I.4 No other evidence of damages was presented by Lenard. Over defense objection, the jury was given a three-tier jury verdict form by the trial judge and instructions relating to possible damages under that form. The jury returned a finding of $10,000 actual and compensatory damages, $125,000 "substantial damages" and $150,000 punitive damages against Argento and $75,000 punitive damages against Sansone.
The Village of Melrose Park, Argento and Sansone raise four issues on this appeal. First, whether the district court's use of a three-tier damage verdict form and its damage instructions which stressed "substantial damages" were erroneous. Second, whether the amount of damages awarded by the jury is against the manifest weight of evidence and excessive as a matter of law. Third, whether there was ample evidence to establish a good faith belief in the officers for probable cause to arrest Lenard and prosecute the criminal charges requiring a directed verdict for the defendants on the malicious prosecution charge of Count V. Fourth, whether a conspiracy without an overt act can be the basis of a damage award or whether there can be a duplication of an award for conspiracy when damages have been already awarded for the act.
On cross-appeal, Lenard raises several issues. First, whether the trial court erred in permitting a good faith immunity defense to be asserted by the Village of Melrose Park. Second, whether the trial court erred in not specifically mentioning Lenard's claim of a beating in its verdict form. Third, whether the jury verdict for the "beating" count was against the manifest weight of the evidence. Claims are also raised regarding attorneys' fees and costs under 42 U.S.C. Sec. 1988, 28 U.S.C. Sec. 1920 and Fed.R.Civ.P. 54(d). Both Lenard and the defendants raise other claims of error, including arguments of various counsel, instructions to the jury and the district court's judgments on Motions in Limine. Each will be addressed individually.
I. Liability
a. Police Officers
Count I of the Second Amended Complaint alleged that the four named police officers beat Lenard while he was in police custody in violation of his civil rights. This beating was the seminal issue of the entire case. Lenard testified that he was cursed and struck by Argento after he was placed in the backseat of Argento's squad car. Lenard contends that he was struck about his head and right eye with what appeared to be a stick. After being knocked unconscious, Lenard testified his next recollection was that of sitting in the squad car as it pulled up to the police station and hearing Argento tell someone "I got a big Black nigger." He testified that he was grabbed about the neck and pulled from the car. He fell to his knees and was kicked and beaten. Lenard's next memory is that of being in a cold wet cell in his underwear. Lenard could not identify any of the officers involved because of his facial injuries.
Several witnesses at the accident scene testified that they did not see Lenard being beaten. Officers Argento, Zito and Culotta testified Lenard was injured in two falls in the icy parking lot and by a fall on the stairwell in the police station. These officers testified that Lenard was struggling and resisting his removal into the station. His size, drunken condition, his struggling, the physical weather conditions all contributed to the falls. The jury, after hearing all the testimony, returned a verdict that Lenard was not beaten.
While there is clearly a conflict of testimony, the question of credibility and weight of the evidence is within the purview of the jury. Pinkowski v. Sherman Hotel, 313 F.2d 190, 193 (7th Cir.1963). A jury verdict cannot be lightly set aside so long as it has a reasonable basis on the record. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969); Wyant v. J.I. Case Co., 633 F.2d 1254, 1256 (7th Cir.1980). Viewing the evidence in a light most favorable to the defendants, the prevailing parties, (Smith v. Rogers, 290 F.2d 601, 602 (7th Cir.1961)), there was a reasonable basis in the record for the jury verdict and the evidence will not be reweighed. Rupe v. Spector Freight Systems, Inc., 679 F.2d 685, 697 (7th Cir.1982) (Judge Swygert dissenting); Musgrave v. Union Carbide Corp., 493 F.2d 224, 229 (7th Cir.1974). The jury determination that Lenard was not beaten will not be disturbed.
Counts II and III of the complaint charged the named officers with violation of Secs. 1985(2) and (3). The jury found, however, only Argento and Sansone liable for civil rights conspiracy. Argento and Sansone argue that they cannot be liable for a conspiracy to "beat" when the jury found that there was no "beating." However, the charge given to the jury was not a "conspiracy to perform a beating" but rather a conspiracy to deprive [Lenard] due course of justice and equal protection of the law. (Tr. 2202-03).
1
As this court outlined in Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980):
2
A civil conspiracy is "a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties 'to inflict a wrong against or injury upon another,' and 'an overt act that results in damage.' " Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir.1973) (citation omitted).
3
* * *
4
* * *
5
A plaintiff seeking redress need not prove that each participant in a conspiracy knew the "exact limits of the illegal plan or the identity of all participants therein." Hoffman-LaRoche, Inc., supra, 447 F.2d [872 (7th Cir.1971) ] at 875. An express agreement among all the conspirators is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result. To demonstrate the existence of a conspiratorial agreement, it simply must be shown that there was "a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences." Id.
6
600 F.2d at 620-21.
7
Thus, there cannot be a civil cause of action for conspiracy under Sec. 1985 without an overt act. Williams v. St. Joseph Hospital, 629 F.2d 448, 451 n. 3 (7th Cir.1980). "[I]t is the overt act which moves the conspiracy from the area of thought and conversation into action and causes the civil injury and resulting damage." Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir.1959), overruled in part on other grounds, Cohen v. Norris, 300 F.2d 24 (9th Cir.1962).
8
While Sansone's contact with Lenard was primarily at the accident scene, Argento did place Lenard in his police car, drive him to the Melrose Park police station and escort him into the police station. There was testimony at trial that Sansone called Lenard a "shine" to a tow truck driver at the accident scene. Lenard testified that Argento called him a "big Black nigger" and hit him in the right eye and about the face with what appeared to be a stick. While the evidence does not link Argento and Sansone to all the events of January 31, there was sufficient evidence for a jury to reasonably believe that there was an overt act and circumstantial evidence of an agreement among the police, particularly Argento and Sansone, to conspire to deprive Lenard of his civil rights. Furthermore, there was sufficient evidence of racially discriminatory animus to meet the Griffin standard for Sec. 1985 conspiracies.
9
The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all.
10
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1970) (footnotes omitted) (emphasis in original). See also Murphy v. Mount Carmel High School, 543 F.2d 1189, 1192 n. 1 (7th Cir.1976); Potenze v. Schoessling, 541 F.2d 670, 672 (7th Cir.1976); Lesser v. Braniff Airways, Inc., 518 F.2d 538, 540 (7th Cir.1975).
11
While the jury may have found insufficient evidence of a beating, that does not mean that there was insufficient evidence of a Sec. 1985(3) conspiracy. The jury could have found that there was insufficient evidence to tie all the defendants to the alleged beating, yet enough evidence, based primarily upon the injuries sustained by Lenard during his police custody, to reasonably conclude that at least Argento and Sansone had entered into and committed "an act" in the furtherance of a conspiracy to deny equal protection.
12
As pointed out in Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir.1971):
13
... [c]ircumstantial evidence may provide adequate proof of conspiracy. The law does not demand proof that each conspirator knew the exact limits of the illegal plan or the identity of all participants therein.
14
Thus, while the jury determined that the evidence did not support the finding of a beating, there was a determination of sufficient evidence to find a conspiracy to deprive equal protection.
15
In such a situation, "it is the jury which 'weighs the contradictory evidence and inferences' and draws 'the ultimate conclusion as to the facts.' " [Citing Continental Ore Co. v. Union Carbide and Carbon Corp., 370 U.S. 690, 700-01, 82 S.Ct. 1404, 1411-1412, 8 L.Ed.2d 777 (1962).]
16
Hampton v. Hanrahan, 600 F.2d at 621. From a review of the facts and record in this case, it was not unreasonable for this jury to reach the verdicts regarding Counts I and II.
17
Count III specifically alleged that the named officers conspired together with the purpose of impeding, obstructing, hindering and defeating the due course of justice and to deprive Lenard of equal protection of the law. This count is complementary to Count V of the Complaint charging malicious prosecution. All parties agree that Count III goes to a conspiracy to maliciously prosecute Lenard for the traffic, liquor and gun violations. In light of our holding regarding the malicious prosecution charge, infra, we must reverse the jury verdict on Count III for failure of an act implementing the conspiracy.
18
In his Second Amended Complaint, Lenard charged in Count V that Argento, Sansone and Dreyer denied him his rights to be free from malicious prosecution under color of law in violation of Sec. 1983. This court has held that under a charge of a Sec. 1983 violation, the test is "... not whether the arrest was constitutional or unconstitutional or whether it was made with or without probable cause, but whether the officer believed in good faith that the arrest was made with probable cause and whether that belief was reasonable." Brubaker v. King, 505 F.2d 534, 536-37 (7th Cir.1974). See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir.1972), on remand from 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).5 See also Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980) (Lack of probable cause and malice must be shown. Actual existence of probable cause is an absolute bar to a Sec. 1983 action); Boscarino v. Nelson, 518 F.2d 879 (7th Cir.1975); Tritsis v. Backer, 501 F.2d 1021 (7th Cir.1974).
19
The question then is whether Officers Argento and Sansone arrested Lenard with good faith belief that there was probable cause for the arrest and whether that belief was reasonable. The Supreme Court has held that:
20
[t]he quantum of information which constitutes probable cause--evidence which would "warrant a man of reasonable caution in the belief" that a felony has been committed, Carroll v. United States, 267 U.S. 132, 162 [, 45 S.Ct. 280, 288, 69 L.Ed. 543]--must be measured by the facts of the particular case.
21
Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1962). This court has held in United States v. Ganter, 436 F.2d 364, 368 (7th Cir.1970), that:
22
The determination of probable cause does not rest upon a technical framework; instead it depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, [1310-1311], 93 L.Ed. 1879 (1949). "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); Thornton v. Buchmann, 392 F.2d 870, 872-73 (7th Cir.1968).
23
See also United States v. Watson, 587 F.2d 365, 368 (7th Cir.1978).
24
In examining the particulars of this case, it is undisputed that Lenard consumed four shots of vodka and five glasses of beer in a period of 5-6 hours while eating nothing and that while driving his automobile he became involved in a minor auto accident. Both officers were called to the scene to investigate the accident when a dispute over fault arose. While the offenses did not occur in the presence of the officers, they arrived upon the scene shortly thereafter. Testimony at trial indicated that Dreyer complained that Lenard had crossed the center line and struck her car. Upon the basis of this information and Lenard's appearance at the scene, it would be reasonable for the officers to have a good faith belief that there existed probable cause to arrest Lenard on the traffic violations. While at the scene, Officer Argento, during a search of Lenard's car, discovered the firearm on the seat and the open can of beer. This Court does not lightly set aside this jury verdict but under the facts which were before the officers, we find that there was probable cause for Lenard's arrest for gun possession and liquor possession, and that it was reasonable for Argento and Sansone to have a good faith belief in the probable cause. We reverse the finding of malicious prosecution and the finding of conspiracy to obstruct justice dependent upon this prosecution.
25
b. Village of Melrose Park
Count II of the Complaint alleged:
26
44. Defendant "Village" by its policy and custom of failing to properly screen, hire, train and supervise its police employees encouraged and sanctioned the misbehavior complained of herein, with the knowledge that it would deprive plaintiff of his rights, privileges and immunities, including Equal Protection of the Laws.
27
(R. 95).
28
Count III of the Complaint charged that it was the policy of the Village to encourage, sanction and "cover-up" acts of misconduct by its police employees. The count specifically alleges that the internal investigation ordered by the Chief of Police was conducted solely to disprove Lenard's allegations and cover-up the police misconduct. Lenard further alleges that the policy and practice of the Village to encourage, sanction and conceal unlawful acts by its police employees was so broad and pervasive that it encompassed a large number of the police department including the Chief from the time of the incident to the present day.
29
Liability of municipalities must be based on something more than a mere right to control employees. A "municipality cannot be held liable under Sec. 1983 on a respondeat superior theory." Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1977). As the Supreme Court held in Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1975), there must be an "affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners--express or otherwise--showing their authorization or approval of such misconduct." The Court in Rizzo further held that the "failure to act in the face of a statistical pattern" of police misconduct was not sufficient to base liability on the City of Philadelphia. 423 U.S. at 376, 96 S.Ct. at 606. In Monell there was this same requirement of showing an implementation or execution of a governmental policy before municipal liability could be imposed. The resulting case law from Rizzo finds "... that a failure of a supervisory official to supervise, control, or train the offending individual officers is not actionable absent a showing that the official either encouraged the specific incident of misconduct or in some way directly participated in it." Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 75, 74 L.Ed.2d 73 (U.S.1982). At a minimum, a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers. Id. Inaction by the Village officials would also not attach liability. There can be liability only when there is an extremely high degree of culpability for inaction. The Second Circuit has held:
30
... a mere failure by the county to supervise its employees would not be sufficient to hold it liable under Sec. 1983. However, the county could be held liable if the failure to supervise or the lack of a proper training program was so severe as to reach the level of "gross negligence" or "deliberate indifference" to the deprivation of the plaintiff's constitutional rights.
31
Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979) (citation omitted). Only where there is a pattern of constitutionally offensive acts with failure to invoke remedial measures will there result in municipal liability for subsequent violations "if the supervisor's inaction amounts to deliberate indifference or tacit authorization of the offensive acts." Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980). Until this present case, this court has not addressed these liability holdings of Monell or Rizzo, though they have been relied upon in Spriggs v. City of Chicago, 523 F.Supp. 138, 142 (N.D.Ill.1981) and Jordon v. City of Chicago, Department of Police, 505 F.Supp. 1 (N.D.Ill.1980).
32
After an examination of approximately 2400 pages of transcript, we find insufficient evidence to establish a failure by the Village to properly screen, hire, train and supervise its employees. Defendant Argento was a police officer for another community before his employment by Melrose Park. He and Sansone attended the Chicago Police Academy after employment. While Chief of Police Cimino had received no formal police training, he was a veteran of thirty years on the police force. Chief Cimino, during direct examination, testified that his officers did receive training on physical restraint of prisoners. The identity of those officers was not pursued by Lenard's counsel. Several other officers, including defendants Culotta and Zito, testified but were not questioned by Lenard regarding their police training.
33
The Village of Melrose Park did not have established at the time of this incident a system of internal investigation nor written regulations regarding treatment of prisoners or the use of nightsticks. Directions, department policy and instructions were transmitted by word of mouth via meetings with staff officers every three months or general whole department meetings held twice a year. Nightsticks are issued to the officers only one week a year during a community feast and returned to the department at the end of that week. They were not standard uniform equipment requiring continual retraining.
34
Chief Cimino testified that on several occasions over eleven years the FBI had questioned officers regarding complaints but nothing ever became of those incidents. When a citizen complaint came to the attention of the Chief, he looked into the matter and talked the matter out with the officer and the complainant. For a small community, this personal approach to a community problem seems reasonable. The internal investigation regarding the Lenard incident was the first that Chief Cimino felt a need to order. The investigation was conducted by Officer Carpino and no disciplinary action resulted from this investigation. The investigation was still open at the time of trial.
35
Lenard argues that the investigation was conducted to disprove his allegations and cover-up police misconduct. We found no evidence to support these allegations. Officer Carpino did read at trial from a police report one line of which read "disprove allegation by the defendant and Lenard was charged with DWI" (Tr. 1295). However, when asked what was the purpose of the investigation, Carpino's reply was "to corroborate or contradict any of the evidence, whichever it may be, regardless to where it led." (Tr. 1297).
36
In light of the standard outlined in Monell, supra, Rizzo, supra and Turpin, supra, the review of the evidence in this case clearly did not reveal sufficient evidence that a reasonable man would return a contrary verdict regarding Count II or Count III in regard to the Village of Melrose Park. Most definitely the evidence did not rise to the standard of liability necessary under Rizzo and its progeny.
37
Similarly, there was not sufficient evidence to show a conspiracy on the part of the Village or its officials with the police officers or defendant Dreyer. The evidence did not show a custom or practice upon the part of the Village or through its officials with its police officers to deprive certain citizens of their constitutional rights through the use of physical force or criminal prosecution. From a reading of Andrea Dreyer's deposition entered into the record at trial, she had four contacts with the Melrose Park police--the day of the accident, the following day when she filed a battery complaint and two telephone conversations after Lenard filed suit. The only possible conspiracy would have been in regard to the accident report and the battery charge. But there was no reasonable basis for the Village to have refused to pursue the complaints of a citizen relating to this accident or the battery charge filed. There was no evidence to show that the Village provoked the complaint filed by Dreyer.
38
The presence of the Village attorney during an interview of Argento, Sansone and Culotta by State's Attorney Kling on February 14, 1977 and the Village attorney's restrictions upon that interview, appear to be no more than legal counseling of Village employees during an admittedly unofficial investigation rather than a cover-up. The Village cooperated with the State's Attorney's office providing statements in its possession. The officers even took Kling to the accident scene and reviewed the events with him. Before a complaint was filed by Lenard and on the basis of newspaper articles alone, Chief Cimino initiated the first internal investigation of police officers in Melrose Park. While Lenard chooses to see conspiracy in these activities, we see none.
39
It should be pointed out that Lenard argues on appeal that the trial court erred when it instructed the jury regarding good faith immunity defense accorded the Village. At the time this trial was conducted, municipalities possessed a qualified immunity under Monell v. New York, supra, though the trial court was aware of pending action in the Supreme Court on this issue. (Tr. 1739-40, 1743). Six weeks after the conclusion of the trial, the Supreme Court held municipalities have no immunity from liability under 42 U.S.C. Sec. 1983 for their constitutional violations, and that they may not assert the good faith of their officers as a defense. Owens v. City of Independence, Mo., 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). On appellate review, we would ordinarily be obligated to apply the law as of the time of the appeal versus as of the time of trial, National Labor Relations Board v. Food Store Employees Union, Local 347, 417 U.S. 1, 10 n. 10, 94 S.Ct. 2074, 2080 n. 10, 40 L.Ed.2d 612 (1974); Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Key v. Rutherford, 645 F.2d 880, 883 (10th Cir.1981), but we need not address the issue of the jury instruction in this case.
40
At the close of Lenard's case and at the close of all the evidence, the Village moved for a Directed Verdict which was reserved by the district court. The jury then returned verdicts in favor of the Village as to all alleged violations. Notwithstanding the jury verdict, after the close of the trial, the district court granted the Village's Motion for a Directed Verdict effective as of the close of the evidence. (Corrected Judgment was entered October 3, 1980 [R. 277].6 Thus, the issue on appeal is not whether the trial court erred when it instructed the jury on the Village's good faith immunity defense but whether the court erred in granting a Directed Verdict in favor of the Village. The Directed Verdict took the judgment from the jury and made it that of the court.
41
The standard for a Directed Verdict was recently stated by this Court in Richardson v. City of Indianapolis, 658 F.2d 494, 498 (7th Cir.1981). It was stated that:
42
... the trial judge must determine whether the party with the burden of proof has produced sufficient evidence upon which a jury could properly proceed to a verdict, and that a mere scintilla of evidence will not suffice. Hohmann v. Packard Instrument Co., 471 F.2d 815, 819 (7th Cir.1973). Thus on appeal the party against whom a verdict has been directed has the onus of demonstrating the existence of a conflict in the evidence or the inferences to be drawn therefrom sufficient to justify submission of the question to the jury. Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098, 1102 (5th Cir.1973).
43
While it might be argued that the trial court could have been influenced in its judgment by the defense of qualified immunity, such an argument would not reverse the trial court's decision but only require a remand for a clarification of its decision. In the normal orderly and efficient administration of justice, priority consideration should be given to issues which will dispose of litigation over issues which, if sustained, will require remand and retrial. Otten v. Stonewall Insurance Co., 538 F.2d 210, 213 (8th Cir.1976). From this record, we feel a remand is not necessary.
44
Lenard argues the sufficiency of the evidence against the Village and requested a reversal of the verdict and judgment, but no post-trial motions, i.e., judgment n.o.v. or motion for retrial, were made. Such failure limits the relief available from the appellate court to that of possibly ordering a new trial. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); 5A Moore's Federal Practice p 50.12 (2d ed. 1981). Defendants Argento and Sansone made several post-trial motions, including a motion for new trial. These motions were denied. From our review of the record, we fail to find sufficient evidence that would cause a reasonable man to return a contrary verdict. Smith v. J.C. Penney Co., 261 F.2d 218, 219 (7th Cir.1958). We sustain the Directed Verdict for the Village of Melrose Park.
II. Damages
45
a. "Substantial"
46
As previously discussed, all the defendants, the Village of Melrose Park, Argento, Sansone, Zito and Culotta, were found not guilty by the jury of the alleged beating of Lenard. The jury also found the Village of Melrose Park, Zito and Culotta not guilty under Counts II and III. The jury did, however, find for Lenard against Argento and Sansone on both Counts II and III. The jury also found the two officers liable for malicious prosecution.
47
When the trial court instructed the jury on the "damage" portion of the verdict, they were instructed that they could award "substantial damages" for both conspiracies without proof of actual injury. If the jury found malicious or wanton conduct in regard to the conspiracies, the jury was instructed that they could award punitive damages in addition to the award of "substantial damages." If the jury found that Lenard had sustained actual or compensatory damages from the malicious prosecution, the jury was instructed to award such damages to Lenard. If Lenard had not sustained any actual damages, they were instructed to award a nominal sum. They were also instructed that punitive damages could be awarded if they found by a preponderance of the evidence "that the acts and conduct of the defendants toward the plaintiff were maliciously done." (R. 2382).
48
The trial court went on to further explain the three types of damages upon which they had been instructed. Actual damages represented any direct out-of-pocket expenses Lenard sustained because of the defendants' acts and conduct. The trial court viewed "substantial damages" as a category presumed to flow from every conspiracy to obstruct justice or deprivation of equal protection.7 It was seen as a category separate from actual damages or punitive. This Court finds that it was error to instruct the jury as to a separate and distinct category of damages classified as "substantial damages."
49
In Carey v. Piphus, 545 F.2d 30 (7th Cir.1976), rev'd 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1977), the Supreme Court reversed the position of this court regarding the awarding of damages to students who were suspended from public elementary and secondary schools without procedural due process. We had held that the students were entitled to recover substantial non-punitive damages in the absence of proof of actual injury caused by the denial of procedural due process. The Supreme Court held "that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights." 435 U.S. at 266, 98 S.Ct. at 1053. Carey was limited to procedural due process violations rather than the substantive constitutional violations of this case.
50
When the Court overruled the holding in Carey, it refrained from overruling the line of cases upon which this court had based Carey. The Supreme Court held:
51
... the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. As we have said, supra, at 258-259 [98 S.Ct. at 1049-1050], these issues must be considered with reference to the nature of the interests protected by the particular constitutional right in question.
52
435 U.S. at 264-65, 98 S.Ct. at 1052-1053. As recently pointed out in this court by Justice Stewart, retired, sitting by designation in Owen v. Lash, 682 F.2d 648 (7th Cir.1982), several courts have considered the question of awarding compensatory damages for substantive constitutional violations in the absence of consequential injury. Several of the courts, under the circumstances of their particular case and the nature of the constitutional violations, found damages could "be presumed where there is an infringement of a substantive constitutional right." Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1272 (8th Cir.1981). See also Owen v. Lash, 682 F.2d at 657-59. Examining the circumstances of this case and the substantive constitutional issues, it was proper for the jury to consider and award damages for these violations in the absence of discernible consequential injuries.
53
There is no question that Lenard is entitled to a damage award for a violation of 42 U.S.C. Sec. 1985(3). Such a right to damages is provided for within Sec. 1985(3). This court, however, does not find that there is a separate category of damages known as "substantial damages" which flow from civil rights violations. While it is recognized that courts must exercise creativity in fashioning remedies for violations of constitutional rights, we are mindful of the Supreme Court's instruction in Carey that:
54
... the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question--just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law.
55
435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1977). While the Court in Carey made several references to "substantial damages" or "substantial non-punitive damages,"8 it is our reading that the word "substantial" was used as an adjective modifying the noun "damages" and not as a descriptive phrase alluding to a category of damages. Classification of damages as actual or compensatory, nominal and punitive are terms of art which have a substantive meaning in legal jurisprudence. "Substantial" is an adjective modifying damages and conveys no legal meaning. Rather, it gives a quantitative character to the damages.
56
We cannot but feel that the repeated use of the phrase "substantial damages" by the district court (11 times, plus inclusion as a category in the verdict form) in its instructions to the jury and the instruction that such damages could be awarded without proof of actual injury greatly influenced this large verdict. "Repetitious instructions which place undue emphasis on matters favorable to either side constitute reversible error." Flentie v. American Community Stores, Corp., 389 F.2d 80, 83 (8th Cir.1968). In light of the erroneous use of the term "substantial" in the verdict form and the instructions in keeping with that form, we reverse and remand this case for retrial on the issue of damages.
57
b. Punitive
58
Additionally, the award of $150,000 and $75,000 in punitive damages against Argento and Sansone, respectively, without a showing as to which claim, the conspiracies or the malicious prosecution, the award as assigned or apportioned requires remand in this instance. Federal law governs the right to punitive damages in civil rights violations. Basista v. Weir, 340 F.2d 74 (3d Cir.1965). To warrant an award of punitive damages, it must be demonstrated that "there was a degree of willful and wanton disregard of plaintiffs' right not to suffer this sort of discrimination." Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 638 (7th Cir.1974). Because of our holding on the issue of malicious prosecution, supra, and the single sum award of punitive damages, we cannot apportion the award among the counts of the complaint. Punitive damages may be awarded to punish a defendant for his outrageous conduct but also to deter the defendant and others from engaging in the same or similar conduct. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974); see also, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); W. Prosser, Law of Torts, Sec. 2 at p. 9 (4th ed. 1971). Damages should not go beyond deterrence and become a windfall.
59
c. Damage evidence that can be presented
60
Several issues were raised on appeal regarding damages and evidence regarding damages which we will consider in order to guide the district court in the retrial.
61
The district court below held that no evidence in the damage portion of the trial could be introduced regarding the "beating" as the jury found no "actual" beating had occurred. The district court instructed Lenard's counsel that:
62
THE COURT: That is not what the Court is saying. I am saying any evidence that flows from the damages resulting from Mr. Lenard being maliciously prosecuted or conspired against may come in; but on the 1983 charge, of having been beaten or the use of excessive force and deprivation of his constitutional rights, that I am precluding.
63
The Court feels it has no choice, in light of the jury's verdict. If you feel I read the jury's verdict incorrectly, then, of course, you make the exception you have and call for a mistrial. But I feel there is no other choice.
64
* * *
65
* * *
66
THE COURT: So the record is clear, Mr. Bertucci, there can be no reference to a cover-up of a beating which I state for the record the Court has concluded that the verdict has been returned that that proof has not been established by a preponderance of the evidence.
67
MR. BERTUCCI: What I want to know, your Honor--
68
THE COURT: You are limited in that, that is correct.
69
MR. BERTUCCI: But what can I say the conspiracy was?
70
THE COURT: Whatever conduct, other than the beating, which was alleged to have occurred in this case you feel occurred, any conduct other than that, whether it relates to the malicious prosecution or any other action which violated the constitutional rights of the plaintiff may be addressed in your argument, and you may ask for substantial damages and punitive damages, with regard to that.
71
But there cannot be any reference to the beating. So that the record is clear, I am precluding that, so if you have any comment on that, I certainly would hear you.
72
(Tr. 2280, 2345-46). Counsel made offers of proof of the physical injuries sustained, the subsequent surgeries, the consequential monetary losses, and the pain and suffering caused by the incident. No damage evidence went to the jury except the arguments of counsel.9
73
While the district court was correct in holding that no evidence of damage from an alleged "beating" could be presented to the jury because of its prior decision, the district court erroneously prevented the presentation of any of the proffered evidence of injuries, medical treatment and losses caused by those injuries sustained while in police custody as they relate to the conspiracy counts. In other words, any evidence of injuries proved incurred from the time shortly after the accident to Lenard's release to his family late that evening should be admitted as they relate to being sustained while in police custody. These injuries cannot be presented or argued, however, as being the result of a beating but presented as injuries incurred somehow while under police supervision and protection.
74
It has been recognized that prisoners are entitled to protection from excessive use of force by police officers. Clark v. Ziedonis, 513 F.2d 79 (7th Cir.1975). This court has held that where there is a showing of deliberate deprivation of constitutional rights while confined, a prisoner is entitled to damages. Black v. Brown, 513 F.2d 652 (7th Cir.1975); Little v. Walker, 552 F.2d 193, 197-98 (7th Cir.1977). On reconsideration of the damages on remand, evidence relating to the eye injury and the shoulder injury, the corrective surgeries performed, the costs and monetary losses from these injuries and the prognosis for recovery should be presented to the jury.
75
Damages may also be considered and awarded for constitutional deprivations. As we held in Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir.1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), the trial court should consider, when making an award for constitutional violations, "the nature of the constitutional deprivation and the magnitude of the mental distress and humiliation suffered by the plaintiff, as well as any other injury caused as a result of being deprived of federally protected rights ..." Id. at 580. As recently pointed out in this court by Justice Stewart in Owen v. Lash, supra, several courts "have awarded significant damages to compensate for the deprivation of a constitutional right despite the absence of proof on consequential injury." 682 F.2d at 658.
As this court pointed out in Hostrop:
76
Although the amount of damages for such an injury cannot be determined by reference to an objective standard, recovery of non-punitive damages for deprivation of intangible rights for which no pecuniary loss can be shown is not without precedent. Courts have traditionally assessed such damages for tortious injury. Examples in civil rights litigation include the awarding of damages for the deprivation of voting rights, for the abridgment of equal opportunities to housing, for illegal assets, and for violation of the right against unlawful searches and seizures.
77
523 F.2d at 579 (cites omitted). See also Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir.1974); Corriz v. Naranjo, 667 F.2d 892 (10th Cir.1982), appeal dismissed per S.Ct. Rule 53, --- U.S. ----, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982).
78
Upon retrial for damages, Lenard should be allowed to argue damages flowing from the nature of the constitutional deprivation, the mental distress, humiliation or any other injury, if any, caused as the result of the violation of his constitutional rights.
79
d. Duplicative Award
80
Argento and Sansone argue on appeal that any damage award for a civil conspiracy would be a duplicative damage award for the act which implemented the conspiracy. They argue that the damages for the conspiracy counts cannot represent the "beating" but must relate to the conspiracy to prosecute Lenard. The damages for the act of prosecution, they contend, were compensated under the instructions related to the malicious prosecution count and cannot be compensated again under the conspiracy count.
81
However, the instructions for the conspiracy damages were not isolated to a particular event but rather related to the deprivation of rights of "due course of justice" and "equal protection under the law."10 An award under Sec. 1985 would not be duplicative of the prosecution or the beating but, in this case, go to the finding of deprivation of civil rights while in police custody. See Corriz v. Naranjo, 667 F.2d at 896-898. While courts have held that an award of damages for a state tort claim joined with a federal civil rights action would be duplicative when there is an adequate state tort remedy, Clappier v. Flynn, 605 F.2d 519, 529 (10th Cir.1979), there are in this case, only strictly federal civil rights claims. As previously indicated, Sec. 1985 provides damages for "injury or deprivation." Thus, it is possible under Sec. 1985 to award damages for the act which effectuated the conspiracies and for the conspiracy which caused the deprivation. See Stringer v. Dilger, 313 F.2d 536 (10th Cir.1963).
82
In summary, upon remand for retrial on damages, we direct that there is no category of damages called "substantial," that the evidence of bodily injury sustained by Lenard during his police custody and the related treatments, costs and prognosis shall be considered as damages under Sec. 1985 (but they should not be couched as beating injuries), and that any evidence of injuries, i.e., mental distress or humiliation, sustained by Lenard as a result of the deprivation of his federal protected rights should be presented to the jury. However, the awards should not be duplicative of any other compensated injuries. Because of our finding of probable cause and reversal of the malicious prosecution count, no damages under Count III shall be considered on remand.
III. Miscellaneous
83
a. Omission of "beating" on the verdict form
84
Lenard argues that the omission of "battery," "beating," or "excessive force" in the verdict forms submitted to the jury was confusing and misleading. He contends that the general phrase regarding deprivation of "his rights, privileges or immunities" failed to inform the jury that these phrases referred to the excessive use of force. He further contends that the jury could have been confused because the verdict form was captioned with the Village of Melrose Park as well as the other named police defendants when in fact the Village was not charged under Count I of the complaint.
85
In reviewing the verdict forms, we must look at the instructions to the jury which complement the forms. Instructions should not be isolated in review but the court should look at the total scheme. Dreckman v. Flores, 331 F.2d 221 (7th Cir.1964). See also Alloy International Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222 (7th Cir.1980). In this instance, the trial court adopted the phraseology of Sec. 1983 and then proceeded to break down the elements which Lenard had to prove by a preponderance of the evidence. In doing so, the charge read:
86
In order to prove his claim that defendants Argento, Sansone, Zito and Culotta, or some of them, deprived him of any of his rights, privileges or immunities secured by the Constution [sic] and laws, the burden is upon the plaintiff to establish by a preponderance of the evidence each of the following propositions:
87
"One, that these defendants, or some of them, knowingly beat, bruised and wounded plaintiff about the face, head and body as alleged.
88
"Two, that these defendants or some of them then and there acted under color of some law of the State of Illinois or some ordinance of the Village of Melrose Park.
89
"Three, that the acts and conduct of these defendants, or some of them, deprived the plaintiff of some of his federal constitutional rights, and
90
"Four, that the acts and conduct of these defendants or some of them were the proximate cause of injuries and consequent damage to the plaintiff."
91
(Tr. 2198-99). Thus, looking at the instruction and the accompanying verdict form, it is clear that the deprivation of "privilege and immunities" went to the alleged beating "of the face, head and body" of Lenard. The exact wording of an instruction is within the discretion of the court and will not be overturned unless there was an abuse of that discretion. See Emery v. Northern Pacific Railroad Company, 407 F.2d 109 (8th Cir.1969). It is clear from the instruction that the verdict form related to the "beating."
92
While the verdict form was captioned with the Village's name, the instruction clearly indicated the named police defendants. "[O]nly when there is a complete absence of positive fact to support conclusions reached (by the jury) does a reversible error appear." Almendarez v. Atchison, Topeka and Santa Fe Railway Co., 426 F.2d 1095, 1099 (5th Cir.1970), citing Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). We find no prejudicial error in the form caption or the omission of "beating" in the verdict form itself.
93
b. Jury Instructions
94
The defendants Argento and Sansone argue that the jury instruction regarding the conspiracy to obstruct justice was overly broad and led the jury to believe that if the defendants were guilty of malicious prosecution they would be similarly guilty on the conspiracy charge. A similar argument was made regarding the equal protection instruction. We cannot agree.
95
An examination of the record clearly indicates that the trial court properly instructed the jury on the elements of the conspiracy to obstruct justice and the elements of the conspiracy to deprive equal protection. These elements were broken down numerically and relevant terms were defined for the jury. The instruction regarding the malicious prosecution clearly went to the initiation and prosecution of the state charges and not to any civil rights deprivations.11 As the trial court had done in the other Counts, it enumerated the elements of the cause of action which clearly delineated to the jury that the malicious prosecution went to the criminal charges and not to any police misconduct. Inasmuch as the jury was properly instructed as to the issues before them, given an understanding of those issues and charged with the duty to determine those issues, we find no prejudicial error to Argento and Sansone. As this court repeated in Alloy International Co. v. Hoover-NSK Bearing Co.:
96
The test then, is not what meaning the ingenuity of counsel can at leisure attribute to the instructions, but how and in what sense, under the evidence before them and the circumstances of the trial, ordinary men acting as jurors will understand the instructions.
97
635 F.2d at 1228 (citations omitted).
98
Argento and Sansone contend that the instructions are overly broad because any misconduct by the defendants would create liability for conspiracy. As previously indicated, any act in the furtherance of or implementation of the conspiracy agreement creates the liability. Thus, if the jury found an agreement between Argento and Sansone and an act in the furtherance of that agreement to hinder the due course of justice or to deny equal protection under the law, the civil conspiracy is triggered.12 It is within the dominion of the jury to decide upon the evidence what act of the defendants supported the conspiracy not the instructing court. This jury was not set loose in a vague and cloudy field of legal concepts as charged. It must be pointed out, however, that since this court has found probable cause to arrest Lenard, the prosecution of those charges was not malicious, and the conspiracy count must fail.
99
In light of our finding of probable cause to effect the arrest of Lenard and reversal of the jury's finding on the malicious prosecution, the challenged instructions regarding the malicious prosecution need not be discussed. Finally, Argento and Sansone challenge the instruction of the trial court as to the Thirteenth Amendment and prejudicial introduction of "slavery" and "involuntary servitude" in this case. The defendants have, however, overlooked the fact that 42 U.S.C. Sec. 1981 et seq. has its constitutional derivation from the Thirteenth and Fourteenth Amendments. As the Supreme Court held in Griffin:
100
By the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their descendants should be forever free. To keep that promise, "Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." Jones v. Alfred H. Mayer Co., supra, [392 U.S.] at 440 [88 S.Ct. at 2203]. We can only conclude that Congress was wholly within its powers under Sec. 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.
101
403 U.S. at 105, 91 S.Ct. at 1799.
102
Examining all the instructions as a whole, we do not find the objected to instructions overly broad, confusing or prejudicial.
103
c. Motions in Limine
104
The trial court granted a Motion in Limine barring the introduction of evidence of a prior arrest and conviction of Lenard on voluntary manslaughter on March 23, 1953 in Arkansas. He was sixteen years old at the time, but there is no indication on the judgment of conviction (Exhibit A at R. 285) whether or not he was adjudicated as a juvenile. Argento and Sansone contend the granting of the Motion was prejudicial error as this conviction went to the issue of Lenard's violent tendencies and antipathy to the law. It is contended that Lenard presented himself as a lifetime law abiding citizen and the defense was prevented from impeaching his credibility through the introduction of three prior arrests and one conviction.13 While Argento and Sansone argue that this evidence went to the issues in the malicious prosecution count, it could have related to the other counts as well.
105
Federal Rules of Evidence 60914 permits the admission of evidence of the prior criminal conviction of a witness to attack his credibility if the probative value of the evidence outweighs its prejudicial effect. However, convictions more than ten years old are inadmissible "unless the court determines, in the interest of justice" that the probative value outweighs the prejudicial effect. Id. In addition, juvenile adjudications are similarly inadmissible. In this instance, the conviction was twenty-four years old occurring when Lenard was a juvenile.
106
This court has always carefully considered the prejudicial impact of prior convictions and has recommended a standard for the trial courts to guide them in their discretionary function. See, United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025, 50 L.Ed.2d 627 (1976). The determination whether the evidence of a prior conviction is more probative than prejudicial is within the trial court's discretion. The House Committee on the Judiciary, when considering the proposed Federal Rules of Evidence, recommended that convictions older than ten years should be totally inadmissible.15 The Senate's recommendation was that of admission of the conviction on only very rare and exceptional circumstances.16 The present rule is a version of the Senate recommendation. The Sixth Circuit in United States v. Sims, 588 F.2d 1145, 1150 (6th Cir.1978) held that "609(b) creates, in effect, a rebuttable presumption that convictions over ten years old are more prejudicial than helpful and should be excluded." Lenard's conviction was sufficiently remote in time, under possible juvenile adjudication circumstances, and unrelated to his truth telling capabilities or the events in this action. It was not error for the trial court to determine that admission would be highly prejudicial and not in the interest of justice.
107
Lenard contends the trial court erred when it granted the Motion in Limine of Sansone and Zito regarding their guilty pleas to bribery charges and thirty day suspensions which occurred in August, 1978.17 It is argued the Village's treatment of these officers on the bribery charge supported the allegations of the Village condoning police misconduct and that such evidence is admissible under Federal Rules of Evidence 404(b).18
108
Generally evidence of other criminal activities is inadmissible unless the evidence of the other crimes or misconduct is relevant. It would be relevant if it bore upon the intent, knowledge, or absence of mistake or accident of the defendant. United States v. Peskin, 527 F.2d 71, 84 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). See also, United States v. Jones, 438 F.2d 461, 465 (7th Cir.1971); United States v. Marine, 413 F.2d 214, 216-17 (7th Cir.1969), cert. denied, 396 U.S. 1001, 90 S.Ct. 550, 24 L.Ed.2d 493 (1970). The admissibility of other criminal conduct is within the discretion of the trial court. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Fierson, 419 F.2d 1020 (7th Cir.1969); United States v. Grabiec, 563 F.2d 313 (7th Cir.1977).
109
The bribery admissions of Sansone and Zito do not relate to any charge against them in this civil action. The bribery and suspensions do not demonstrate any intent or knowledge which correlates to any civil rights deprivation or physical abuse. While both charges might demonstrate police misconduct, the admission of the subsequent suspensions would have to be weighed by the trial court for its prejudicial versus probative value. In addition, Lenard is not seeking to use the evidence against Sansone and Zito but against the Village to prove its intent to condone misconduct. Thus, Lenard is not seeking to use the evidence to show the intent of Sansone and Zito to commit police misconduct but rather to impose a completely different intent upon the Village. The proposed use of this evidence is completely outside the exceptions of 404(b). The suspensions are unrelated to any facts at issue in this case and do not have "any tendency to make the evidence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Federal Rules of Evidence 401. The trial court properly acted within its discretion to deny the admission of the suspensions.
110
Lenard also argues the trial court erred when it granted the Motion in Limine in respect to the police officer defendants' assertion of their Fifth Amendment privileges to internal investigators and the Cook County Grand Jury investigating the incident. (The officers did testify two weeks later). Lenard argues that the Village's failure to discipline the officers for invocation of their Fifth Amendment privilege was further evidence of a Village cover-up or condoning of misconduct. The Supreme Court held in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), however, that a police officer cannot be disciplined for invocation of his Fifth Amendment privilege nor his failure to sign a waiver of immunity with respect to any testimony when the officer is called before a grand jury investigating criminal conduct with which he may be involved. Thus, the Village was prohibited from disciplining the officers under Gardner. Failure to discipline could not then be part of a cover-up. The failure of the Village to reinterview the defendants for its own internal investigation after their waiver of privilege before the Grand Jury fails to demonstrate an intention to cover-up, especially when Sansone and Zito were suspended a year and a half later. The trial court acted within its discretion in granting the Motion.d. Statements made by counsel
111
While this Court appreciates the advocacy displayed by these attorneys on behalf of their clients, there were times during the course of reviewing the briefs and records of this case when it wondered whether these attorneys were in the same courtroom hearing the same case. While florid language and zealous advocacy display commitment to their respective causes, exaggerations and personal attacks do not factually present issues before an appellate court.
112
Defendants Argento and Sansone contend on appeal that several statements made by Lenard's counsel, including statements regarding religious affiliations and the veracity of Sansone in his testimony, amounted to reversible error. Personal observations, evaluations and recommendations are not part of the role of trial counsel but in the context of all the evidence and the clear cautionary instructions of the trial court regarding the arguments of counsel, these statements do not rise to the level of reversible error. We find any error in statements made by either counsel to be harmless error within Fed.R.Civ.P. 61. Kotteakos v. United States, 328 U.S. 750, 761-62, 66 S.Ct. 1239, 1246-1247, 90 L.Ed. 1557 (1946). We do congratulate the trial court for its very fair, even-handed handling of this long difficult case.
IV. Attorney Fees
113
The conclusion of the trial was far from the conclusion of the issues of the Lenard case on appeal. In October, 1980, the trial court in a Memorandum Opinion (R. 281) ruled that each party had prevailed to some extent and denied cross-motions by the plaintiff and defendants for attorney fees under the Civil Rights Attorneys Fees Awards Act of 1976, 42 U.S.C. Sec. 1988.19 Subsequent to that decision, this appellate court modified its prior ruling of Roesel v. Joliet Wrought Washer Co., 596 F.2d 183 (7th Cir.1979), in the cases of Coop v. City of South Bend, 635 F.2d 652 (7th Cir.1980) and Murphy v. Kolovitz, 635 F.2d 662 (7th Cir.1981). As a result of this modification, the trial court reconsidered the question of attorney's fees and granted the plaintiff's motion regarding fees.20 The trial court denied Defendants' Motion to Reconsider on May 29, 1981. On the same date the trial court awarded to the plaintiff attorney's fees in the amount of $180,500. The trial court also awarded costs to the plaintiff. Argento and Sansone made a Motion to Reconsider the Award of $180,500 in fees pointing out that the attorneys had entered into fee agreements with Lenard limiting their fees to 1/3 of the recovery at trial. The trial court in its Memorandum Opinion examined the case law of other circuits and the terms of the 1981 fee agreement21 and found that plaintiff's counsel had limited their fees to one-third of the judgment. The court then modified the fee award to $120,000. This Memorandum Opinion was entered on June 19, 1981.
114
On June 26, 1981, the defendants filed notice of appeal from all orders of the district court related to fees and costs. On June 29, 1981, the plaintiff filed in the district court a Motion to Reconsider the reduction of fees. This motion was within the ten-day time requirements of post-judgment motions. The court ordered memorandums of the issue of fee reduction and held oral arguments on the issue. After consideration of the memorandums and arguments, the district court found the disputed provision of the 1981 fee agreement ambiguous. Since the court found the contract terms ambiguous, Illinois case law permitted the use of extrinsic evidence to enable the court to reach a proper interpretation. Considering the affidavits of Lenard and Attorney Singer, the court held the provision was a credit provision and not a limit to attorney's fees. The district court ordered the vacation of the June 19 judgment and the reinstatement of the award of $180,500 in attorney's fees in a Memorandum Opinion of July 29, 1981.
115
On appeal, initially, Argento and Sansone argue that the district court did not have jurisdiction over Lenard's June 29 Motion to Reconsider because they had already filed their appeal. In addition, it is argued that Lenard was not the prevailing party; that special circumstances require denial of fees; that the fees should be limited to the contingent contract; that the trial court did not limit the fees to the successful claims; that fees should not be awarded for the pendent claim of malicious prosecution; and that costs should not have been awarded under Sec. 1988.
116
As a result of this Court's decision reversing the judgments under Counts III and V of the Complaint, affirming the jury verdict on Count I and remanding the case for retrial of damages under Count II, the issue regarding the final amount of attorney's fees must also be remanded to the trial court. In light of Judge Posner's concerns over the "nest of Chinese boxes" in civil rights litigation (Muscare v. Quinn, 680 F.2d 42 (7th Cir.1982)), we will address some of the issues raised on appeal.
117
The filing of a timely Motion for appeal has the effect of transferring the jurisdiction over the case from the district court to that of the appellate court. 9 Moore's Federal Practice p 203.11 (1982); United States v. Lafko, 520 F.2d 622 (3d Cir.1975). Under Fed.R.App.P. 4(a)(1) the notice of appeal should be filed within 30 days from the entry of judgment or order appealed from. However, the rule further provides that:
118
(4) If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.
119
Fed.R.App.P. 4(a)(4).
120
For the purposes of Rule 4(a), a motion to reconsider has been held to qualify as a Rule 59(e) motion. Richerson v. Jones, 572 F.2d 89, 93 (3d Cir.1978); Jones v. Nelson, 484 F.2d 1165, 1167-68 (10th Cir.1973); 9 Moore's Federal Practice p 204.12, p. 4-67 (1982). Thus, a timely motion to reconsider postpones the running of the time for appeal. If the time to file is postponed by a motion, the district court must have jurisdiction to consider the motion. As the rule states "[a] notice of appeal filed before the granting or denying of any of the above motions shall have no effect. A new notice must be filed ..." Fed.R.App.P. 4(a)(4). We find that the district court had jurisdiction to consider the Motion to Reconsider the opinion of June 19, 1981, timely filed by the plaintiff on June 29, 1981. The defendants filed a notice of appeal from the opinion reinstating the fees of $180,500 on August 31, 1981. Per stipulation, all appeals were consolidated for hearing and oral argument. We will now consider the appropriateness of attorney's fees and the factors that should be considered by the trial court in the awarding of fees.
121
The awarding of attorney's fees is within the discretion of the trial court but that discretion is a narrow one. Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir.1979). The fees should only be denied when special circumstances would render an award unjust. Id. The key to the award of attorney's fees is the determination as to who is the prevailing party. This Circuit in Busche v. Burkee, 649 F.2d 509, 521 (7th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), adopted the definition of the First Circuit in Nadeau v. Helgemoe, 581 F.2d 275, 278-9 (1st Cir.1978) which stated:
122
plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.
123
(emphasis added).
124
On the trial court level, Lenard failed in the significant allegation of the "beating" under Sec. 1983. Similarly, while he was sustained in his charges under the conspiracy counts, the jury found liability only for Argento and Sansone and not the other named defendants. On this appeal, this Court has only affirmed the findings of the jury on one of the conspiracy charges and reversed the findings on the malicious prosecution and obstruction of justice. This Circuit has held that "a prevailing plaintiff should receive fees almost as a matter of course." Davis v. Murphy, 587 F.2d 362, 364 (7th Cir.1978). It cannot be said, however, that Lenard has prevailed in the case as a whole but rather he was partially successful in his civil rights claims. As was held in Muscare v. Quinn, 614 F.2d 577, 580 (7th Cir.1980), attorney's fees should be awarded only for the preparation and presentation of claims on which the plaintiff has prevailed. "[T]he amount of attorney's fees they receive [prevailing plaintiff] should be based on the work performed on the issues in which they were successful." Nadeau v. Helgemoe, 581 F.2d at 279; Busche v. Burkee, 649 F.2d at 522. See also Coop v. City of South Bend, supra; Murphy v. Kolovitz, supra; Harrington v. DeVito, 656 F.2d 264 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). On remand the trial court should carefully review the time sheets on the successful claim of Count II in light of the Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir.1974) factors adopted in Muscare v. Quinn, 614 F.2d at 579. See also Busche v. Burkee, 649 F.2d at 522.
125
The defendants argue that, even if Lenard did prevail, fees should be denied because of the special circumstances of the size of the damage award, the contingent attorney contract and the financial position of the defendants. The amount of the damage award, large or small, is not a circumstance to be considered in the awarding of fees. Coop v. City of South Bend, 635 F.2d at 654. The purpose of the Attorneys Fees Awards Act was to effectuate and assist the private citizen in the enforcement of the Civil Rights Act. (See the legislative history, S.Rep. No. 1011, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 5908-5914). We do not view the size of any damage award as a special circumstance to be considered in the award of these attorney's fees. But see Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.), petition for cert. filed, 51 U.S.L.W. 3055 (U.S. May 19, 1982) (No. 81-2135); Mirabal v. General Motors Acceptance Corp., 576 F.2d 729 (7th Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 699 (1978). The trial court may consider as a factor the contingent fee contract, but it is not to be an automatic limitation on the attorney fee award. See Sanchez v. Schwartz, 688 F.2d 503 (7th Cir.1982); Strama v. Peterson, 689 F.2d 661 (7th Cir.1982). See also Sargeant v. Sharp, 579 F.2d 645 (1st Cir.1978). Additionally, while we recognize that these defendants are two young police officers, the ability to pay a fee award has been held not to be a special circumstance that would bar an award. Entertainment Concepts, Inc. v. Maciejewski, 631 F.2d 497 (7th Cir.), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1980). We are aware that currently the question of the insurance company's liability for the damage award is being litigated in the magistrate's court. We do not express any opinion regarding amount of damages, fees or costs to affect those proceedings.
126
As Chief Judge Cummings recently wrote in Sanchez v. Schwartz, supra, a contingent fee contract should not serve "as an automatic ceiling on the amount of a statutory award." 688 F.2d at 505. See also Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980).22 The trial court properly reconsidered the disputed provision of the 1981 fee agreement.23 It is the function of the courts to seek the proper interpretation of a contract which reflects the intentions of the parties. Stanley v. Chastek, 34 Ill.App.2d 220, 180 N.E.2d 512, 520 (2d Dist.1962); Greene v. Gust, 26 Ill.App.2d 2, 167 N.E.2d 438, 441 (1st Dist.1970); 4 S. Williston, A Treatise on the Law of Contracts Sec. 601 (3d ed. 1961). It is clear from the contract, the memorandum in support of the Motion to Reconsider and the affidavits attached thereto that it was the intention of Lenard and his attorneys that any award under Sec. 1988 would be credited to any fees owing under the contingent contract. The excess attorney's fee award, if any, would go to the attorneys. We cannot express or confirm the final amount of the attorney's fees because the trial court must reexamine the award and limit the fees to the prevailing issue.
127
The defendants contend that the trial court improperly awarded costs under Sec. 1988. They base this contention upon the fact that the court reversed its stand regarding costs after it reconsidered the attorney's fees issue in January, 1981. Costs are allowable under Sec. 1988. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 642 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980); Konczak v. Tyrrell, 603 F.2d 13, 18-19 (7th Cir.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). Costs are also allowable under Fed.R.Civ.P. 54(d) and 28 U.S.C. Sec. 1920. These costs are awarded to the prevailing party. Busche v. Burkee, 649 F.2d at 522. It must be remembered that up to January, 1981, the trial court regarded this case a draw. It was only after the clarification of "prevailing" in civil rights cases that the trial court awarded costs. While the court did not indicate, in its Order awarding costs, the statutory basis for the award, we believe that such costs are allowable under Sec. 1988, 54(d) and Sec. 1920. Deposition costs are allowable within the discretion of the trial court, Bailey v. Meister Brau, Inc., 535 F.2d 982, 996 (7th Cir.1976), as are copying costs, SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979). We find no abuse of discretion in the trial court regarding the costs.
128
Since Lenard was successful in prevailing on the issue of conspiracy to deprive equal protection, on appeal, the trial court should determine the reasonable fees on this issue on appeal keeping in mind the totality of the case. See Muscare v. Quinn, 680 F.2d 42, supra. See also Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980).
V. Conclusion
For all the above reasons we:
129
1. Affirm the jury verdict as to Count I;2. Affirm the jury verdict as to liability under Count II but reverse and remand for retrial as to damages under Count II as to defendants Argento and Sansone;
130
3. Reverse the jury verdict as to Count III as to defendants Argento and Sansone;
131
4. Reverse the jury verdict as to Count V as to defendants Argento and Sansone;
132
5. Affirm the jury verdicts as to Zito and Culotta;
133
6. Affirm the Directed Verdict as to the Village of Melrose Park;
134
7. Reverse the District Court's award of $180,500 in attorney's fees and remand for recalculation in light of this opinion;
135
8. Remand to the District Court for determination of attorney's fees on appeal for those issues on which Lenard prevailed in this court.
136
Circuit Rule 18 shall not apply.
137
AFFIRMED in part, REVERSED in part and REMANDED.
*
Honorable Robert A. Grant, Senior District Judge of the United States District Court for the Northern District of Indiana, sitting by designation
1
42 U.S.C. Sec. 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
2
42 U.S.C. Sec. 1985(3) provides:
(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified persons as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
3
42 U.S.C. Sec. 1985(2) provides:
(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
4
"THE COURT: To the extent that the proffer relates to injuries dericed [sic] as a result of the incident of 1/31/77, this Court, in light of the jury's verdicts in this case, would preclude a presentation of such evidence, if it relates, as has been described by Mr. Bertucci. And the proffer, of course, may stand and objection to the Court excluding it may stand; and in light of the Court's earlier comments, as well as these, would rule that inadmissible for submission to the jury for consideration in a damage phase of the trial." (Tr. 2308)
5
Therefore, to prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. And so we hold that it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted. We think, as a matter of constitutional law and as a matter of common sense, a law enforcement officer is entitled to this protection
456 F.2d at 1348.
6
"Today the court has amended its Judgment dated March 19, 1980 which mistakenly entered judgment upon the jury's verdict in favor of the Village of Melrose Park and has entered judgment on its order granting the motion of the Village of Melrose Park for a directed verdict at the close of all the evidence." Footnote to Memorandum Opinion October 3, 1980. (R. 281)
7
"Substantial damages, as I have described in these instructions, are those which are presumed to flow from every conspiracy to obstruct justice, and every conspiracy to deprive plaintiff of equal protection of the laws or of equal privilege or immunity under the laws. It is for you to determine the amount of the substantial damages, as it is for you to determine the amount of the actual damages." (Tr. 2385)
8
See 435 U.S. at 252, 253, 254, 261, 266, 98 S.Ct. at 1046, 1047, 1051, 1053
9
This was a bifurcated trial lasting over 5 1/2 weeks with the same jury determining liability as well as damages
10
"Where a plaintiff has proven a conspiracy to obstruct justice and a conspiracy to deprive him of equal protection of the laws, or of equal privileges and immunities under the law, he is entitled to recover without proving any actual injury, substantial damages." (Tr. 2381)
11
"In order to prove his claim that defendants Argento and Sansone, or one of them, maliciously prosecuted him for the offenses of no valid driver's license, resisting arrest, unlawful use of weapons, no firearm owner's identification card, improper lane usage, driving under the influence of alcohol and failure to reduce speed to avoid an accident, or some of them, the burden is upon the plaintiff to establish by a preponderance of the evidence each of the following propositions:
One, that a criminal proceeding was commenced against the plaintiff.
Two, that defendants Argento and Sansone, or one of them, commenced the criminal proceeding against the plaintiff.
Three, that the plaintiff was found not guilty of one or more of the charges.
Four, that a criminal proceeding was commenced by defendants Argento and Sansone, or one of them, without probable cause.
Five, that defendants Argento and Sansone, or one of them, acted with malice and,
Six, that the defendant was damaged by the criminal proceeding." (Tr. 2209).
12
"So where the evidence in the case shows such a common plan or arrangement between two or more persons, evidence as to an act done or statement made by one such person is admissible against all, provided that the act be knowingly done or the statement be knowingly made during the continuance of the common plan or arrangement, and in furtherance of some intended object or purpose of the common plan." (Tr. 2204)
13
Lenard was arrested for premeditated murder but pled guilty to voluntary manslaughter on March 23, 1953. He was apparently arrested in 1960 and resisted arrest in July, 1968. (Offer of proof Tr. 1648-49). Those arrests were not prosecuted. It is unclear from the record, as several documents are missing, but there is passing reference to a gambling conviction but it is not further identified. The trial court granted Lenard's Motion in Limine prohibiting reference to the prior gambling conviction and the prior manslaughter conviction for impeachment purposes. (Tr. Vol. A p. 7). The trial court did not, however, outline on the record the factors considered consistent with this court's standard in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976)
14
Federal Rules of Evidence 609 provides:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
* * *
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
Federal Rules of Evidence 609.
15
H.R.Rep.No. 650, 93rd Cong. 1st Sess., reprinted in, 1974 U.S.Code Cong. & Ad.News pp. 7051, 7085
16
S.Rep.No. 1277, 93rd Cong. 2d Sess., reprinted in, 1974 U.S.Code Cong. & Ad.News pp. 7051, 7062
17
On August 30, 1978, Sansone and Zito entered guilty pleas to soliciting and accepting a $100.00 bribe on June 24, 1978
18
Federal Rules of Evidence 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
19
42 U.S.C. Sec. 1988 provides:
... In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
20
Memorandum Opinion dated January 30, 1981
21
The January 21, 1981 Attorney's contract signed by Bennie Lenard and Cecile Singer provided in part:
I HEREBY accept the foregoing terms and conditions and agree to make no charge for our services unless and except to the extent that money or property is recovered on such claims or suits. I further agree to make no settlement without the consent of the above claimant. I further agree that any money awarded as and for attorneys fees under the Civil Rights Attorneys Fees Award [sic] Act, for services rendered in prosecution of the trial, appeal before the Seventh Circuit Court of Appeals, and the retrial (if necessary) of this cause shall be applied and credited, up to and including, but not to exceed the stated per centage [sic] of the amount recovered on the claim (33 1/3% for trial; 40% for trial and appeal; 50% for trial, appeal, and retrial).
22
But see Cooper v. Singer, 689 F.2d 929 (10th Cir.1982). The 10th Circuit Cooper decision holds the amount of fees under a contingent contract to be the maximum allowable amount to be awarded under Sec. 1988. This is contrary to this Circuit's holding in Sanchez v. Schwartz, supra, wherein we declined to hold a contingent fee contract as an automatic ceiling on an award and concluded that any such holding would be contrary to the legislative history. 688 F.2d at 505. See Judge Holloway's dissent in Cooper
23
See fn. 21, infra
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751 F.2d 385
Melkezdek Hermiz & Familyv.Immigration and Naturalization Service
NO. 83-3763
United States Court of Appeals,sixth Circuit.
NOV 05, 1984
1
Appeal From: I.N.S.
2
PETITION FOR REVIEW DENIED.
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748 F.Supp. 1511 (1990)
Andrea ZANZURI, Plaintiff,
v.
G.D. SEARLE & COMPANY, and ABC Pharmaceutical Supply Company, Defendants.
No. 87-2370-CIV-WMH.
United States District Court, S.D. Florida.
September 4, 1990.
*1512 Terry Nelson, Hope, Backmeyer & Nelson, P.A., Miami, Fla., for plaintiff.
Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A., Tampa, Fla., for defendant G.D. Searle & Co.
ORDER
HOEVELER, District Judge.
This cause is before the Court on the motion of Defendant G.D. Searle for summary judgement on the first six counts of Plaintiff's complaint. For the reasons discussed below, Defendant's motion is denied as to Counts I-V, and granted as to Count VI.
I. BACKGROUND
Plaintiff brings this suit for injuries that she alleges were caused by her use of an intrauterine copper contraceptive (hereinafter "Cu-7") manufactured by Defendant G.D. Searle & Company ("Searle"). Counts I and II allege that Defendant negligently failed to disclose unfavorable information and provided inaccurately favorable information to the general public and physicians about the Cu-7. Count III sounds in common law fraud, alleging that Searle deliberately misinformed the FDA, prescribing physicians, and the general public about the Cu-7. Counts IV and V allege strict liability and breach of warranty. Count VI is a claim for statutory deceit, and Count VII (not subject to the motion before the Court) alleges a violation of the Florida RICO statute.
The Cu-7 is an intrauterine copper contraceptive which is available to women only on the prescription of a physician. It is inserted into the uterus through the vagina and cervix, where it remains until removal by the physician. On October 9, 1981, Plaintiff had inserted a Cu-7 intrauterine contraceptive by Dr. Geoffrey James, a board certified obstetrician/gynecologist. Dr. James testified that by 1981, he had been administering IUDs for approximately eight to ten years and had developed a routine for informing and warning prospective IUD users of the risks in using an IUD, including a discussion with the prospective *1513 IUD user of the health risks involved. According to Dr. James, these risks include infection, pelvic inflammatory disease, and ectopic pregnancy (a pregnancy which occurs outside of the uterus, typically in one of the fallopian tubes).
Plaintiff wore the Cu-7 for almost two years. During this period, Dr. James performed three physical examinations, the medical records of which do not report any problems or difficulties associated with the IUD. However, Plaintiff, testifies that she did experience headaches, lethargy, and lower back pains. On April 13, 1983, Plaintiff had the IUD removed by Dr. Straussburg, because she and her husband wished to have another child.
In August 1983, Plaintiff developed an ectopic pregnancy, necessitating the surgical removal of the embryo and the right fallopian tube. In July 1984, Plaintiff developed a second ectopic pregnancy in her left fallopian tube, which was removed by surgery. Dr. Edwards, Plaintiff's primary treating gynecologist, testified that an ectopic pregnancy typically occurs from blockage of the fallopian tube, which can be caused by pelvic inflammatory disease (PID). Plaintiff now seeks to recover damages from Defendant for her pain, suffering, medical expenses incurred, and loss of fertility.
II. DISCUSSION
Defendant's motion for summary judgment presents the Court with three issues.
First, Defendant moves for summary judgment on the issues of causation and the adequacy of the warning. Defendant contends that under Florida law it is not required to warn the patient of the risks associated with the Cu-7, but rather must only provide adequate warnings to the medical community. Maintaining that the record before the Court demonstrates that there is no controverted factual issues surrounding the adequacy of the warning to the medical community, Defendant concludes that it is entitled to summary judgment.
Second, Defendant contends Counts IV and V of the complaint should be dismissed on the grounds that Defendant is not strictly liable to Plaintiff under Florida law.
Third, Defendant moves for summary judgment on Count VI of the complaint which alleges statutory deceit. Defendant maintains that the statute under which Plaintiff purports to state a claim was not enacted until after the injuries were allegedly sustained by Plaintiff.
A. STANDARD ON SUMMARY JUDGMENT
The standard to be applied in reviewing a summary judgment motion is stated unambiguously in Rule 56(c) of the Federal Rules of Civil Procedure:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
As set forth in the Rule, summary judgment may be entered only where there is no genuine issue of material fact. Moreover, the moving party bears the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142, 154 (1970).
In applying this standard, the Eleventh Circuit has explained that:
In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; [Environmental Defense Fund v.] Marsh, 651 F.2d [983] at 991 [(5th Cir.1981)]. All reasonable doubts about the facts should be resolved in favor of the non-movant. Casey Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir.1981). If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture & Elec. Supply Co. v. Continental Insurance Co., 420 F.2d 1211, 1213 (5th Cir.1969). Summary judgment *1514 may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply 420 F.2d at 1213....
Moreover, the party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes v. S.H. Kress & Co., 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at 991. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied, notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-612 (5th Cir. 1967). See, Dalke v. Upjohn Co., 555 F.2d 245, 248-49 (9th Cir.1977).
Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368-1369 (11th Cir.1982).
In opposing a motion for summary judgment, the non-moving party may not rest upon mere allegations, but must rebut any facts presented by the moving party in order to demonstrate the existence of a genuine and material issue of fact for trial. Adickes, 398 U.S. at 160, 90 S.Ct. at 1609-10, 26 L.Ed.2d at 156. Furthermore, the mere existence of a scintilla of evidence in support of the non-movant's position is insufficient; there must be evidence on which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 214 (1986). In determining whether this evidentiary threshold has been met, the trial court must "view the evidence presented through the prism of the substantive evidentiary burden" applicable to the particular cause of action before it. Id. 477 U.S. at 254, 106 S.Ct. at 2512, 91 L.Ed.2d at 215. If the non-movant fails to adduce evidence which would be sufficient, when viewed in a light most favorable to the non-movant, to support a jury finding for the non-movant, summary judgment may be granted. Id., 477 U.S. at 253, 106 S.Ct. at 2512, 91 L.Ed.2d at 215. Moreover, summary judgment is mandated, if after adequate time for discovery, the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265, 273 (1986).
B. THE "LEARNED INTERMEDIARY" DOCTRINE
As a general rule, the manufacturer of a product has a duty to warn the users of dangers inherent in the use of that product. One exception to this rule, however, is the "learned intermediary" doctrine, whereby the manufacturer of a prescription drug discharges its duty to warn by providing an adequate warning to the prescribing physician. As noted by the Eighth Circuit:
There are several arguments supporting the application of this exception to prescription drug products. First, medical ethics and practice dictate that the doctor must be an intervening and independent party between patient and drug manufacturer. Second, the information regarding risks is often too technical for a patient to make a reasonable choice. Third, it is virtually impossible in many cases for a manufacturer to directly warn each patient.
Hill v. Searle Laboratories, 884 F.2d 1064, 1070 (8th Cir.1989). Although the "learned intermediary" exception has been questioned and rejected in the context of birth control devices by some courts,[1] the doctrine continues to enjoy solid support under *1515 Florida law. In the case of Buckner v. Allergan Pharmaceuticals, Inc., 400 So.2d 820 (Fla.App.1981), the court held that a manufacturer of prescription drugs is only under a duty to warn the medical community:
A manufacturer of a dangerous commodity, such as a drug, does have a duty to warn but when the commodity is a prescription drug we hold that this duty to warn is fulfilled by an adequate warning given to those members of the medical community lawfully authorized to prescribe, dispense and administer prescription drugs.
Buckner at 822 (citations omitted). As the Florida Supreme Court recently stated in the case of Felix v. Hoffman-LaRoche, Inc., 540 So.2d 102, 104 (Fla.1989):
[I]t is clear that the manufacturer's duty to warn of [the drug's] dangerous side effects was directed to the physician rather than the patient. Buckner v. Allergan Pharmaceutical, Inc., 400 So.2d 820 (Fla. 5th DCA), review denied, 407 So.2d 1102 (Fla.1981). This is so because the prescribing physician, acting as a "learned intermediary" between the manufacturer and the consumer, weighs the potential benefits against the dangers in deciding whether to recommend the drug to meet the patient's needs. Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.), cert. denied, 419 U.S. 1096 [95 S.Ct. 687, 42 L.Ed.2d 688] (1974).
Thus, in Florida, the manufacturer of a prescription drug must provide the prescribing physician with an adequate warning. The properly warned physician then becomes a "learned intermediary" operating to break the causal link between the manufacturer and plaintiff, thereby insulating the manufacturer from tort liability for harm caused by the drug.
Defendant presents three points for consideration in light of the learned intermediary doctrine. First, Defendant claims that the warning provided to the physician with the Cu-7 was so clear and unambiguous that Defendant's duty to warn the medical community has been discharged as a matter of law. Alternatively, Defendant argues that even if the warnings were not so clear as to warrant judgment for Defendants as a matter of law, Defendant is nevertheless entitled to summary judgment since a factual evaluation demonstrates that the warnings to the medical community were adequate. Finally, Defendant maintains that even if the warnings were inadequate, it is entitled to summary judgment because the prescribing physician was independently aware of the risks involved with the Cu-7. In response to Defendant's arguments under the learned intermediary doctrine, Plaintiff argues that the entire doctrine is inapplicable to this case since the FDA imposed a duty on Defendant to warn the patient directly. The Court first examines Plaintiff's argument concerning the FDA regulations, describes the warnings supplied by Defendant, and then explores each of Defendant's three positions under the learned intermediary doctrine.
1. Defendant's Duty to Warn Imposed by Federal Law
In response to Defendant's "learned intermediary" defense, Plaintiff asserts that the Food and Drug Act, 21 C.F.R. Section 310.502(2),[2] imposes on Defendant a duty to warn the patient directly, the breach of which gives rise to strict liability under state law. In essence, Plaintiff contends that Defendant's "learned intermediary" defense is displaced by a federally imposed duty to warn Plaintiff of the risks inherent with IUD use.
In addressing a similar problem in the context of oral contraceptives, the case of Lukaszewicz v. Ortho Pharmaceutical Corp., 510 F.Supp. 961, amended, 532 F.Supp. 211 (E.D.Wisc.1981) ruled that, despite the existence of the "learned intermediary" doctrine, the FDA creates an obligation on the part of the drug manufacturer to warn the patient of potential risks, the breach of which gives rise to liability *1516 under Wisconsin tort law as negligence per se. However, the Lukaszewicz ruling was clearly based on the Court's belief that Wisconsin state law of negligence per se provided for liability where Defendant had violated a federally imposed duty. By contrast, Plaintiff has presented this Court with no authority indicating that the Florida Courts would take the same approach. Rather, as discussed above, the Florida courts without exception sanction the "learned intermediary" doctrine which is clearly at odds with the federal duty to warn the patient which is arguably embodied in 21 C.F.R. Section 310.502(2). Although failure to comply with federal standards might very well provide a vehicle by which to argue that the manufacturer was negligent, this Court is not persuaded that the federal regulations contained in 21 C.F.R. Section 310.502 should redefine the scope of this cause of action under state law.
2. The Warnings Supplied By Defendant
Every Cu-7 purchased by a physician is accompanied by a "package insert", which provides instructions on insertion and warnings regarding potential health risks. Under the heading "warnings", the insert provides:
... 3. Pelvic Infection: An increased risk of pelvic inflammatory disease associated with the use of IUDs has been reported. While unconfirmed, this risk appears to be greatest for young women who are nulliparous and/or who have a multiplicity of sexual partners.... The decision to use an IUD in a particular case must be made by the physician and patient with the consideration of a possible deleterious effect on future fertility.
Under a section entitled "adverse reactions," the insert provides:
Pelvic infection, including salpingitis with tubal damage or occlusion has been reported. This may result in future infertility.... The following complaints have also been reported with IUDs although their relation to the Cu-7 has not been established: amenorrhea or delayed menses, backaches, cervical erosion, cystic masses in the pelvis, vaginitis, leg pain or soreness, weight loss or gain, nervousness, dyspareunia, cystitis, endometritis, septic abortion, septicemia, leukorrhea, ectopic pregnancy, difficult removal, uterine embedment, anemia, pain, neurovascular episodes including bradycardia and syncope secondary to insertion, dysmenorrhea, and fragmentation of the IUD.
3. Adequacy of the Warnings as a Matter of Law
As noted above, a drug manufacturer will not be held liable in Florida where it can show that it provided the medical community with an adequate warning of the risks associated with the product. In the case of Felix v. Hoffman-LaRoche, Inc., 540 So.2d 102, 105 (Fla.1989), the Florida Supreme Court stated that although the adequacy of warnings concerning drugs is normally a question of fact, it can "become a question of law where the warning is accurate, clear and unambiguous." The Felix Court found that the manufacturer's warning concerning acne medication was adequate as a matter of law where it warned physicians that the product should not be prescribed to "patients who are pregnant or intend to become pregnant while undergoing treatment." Felix, 540 So.2d at 103 (emphasis supplied). Unlike the categorical negative "should not be prescribed" present in the Felix warning, the warning accompanying the Cu-7 merely warns of that "[a]n increased risk of pelvic infection associated with the use of IUDs has been reported". The warning continues that "[w]hile unconfirmed, this risk appears to be greatest for young women who have never had a baby ...". Far from a model of clarity, the Cu-7 warning is the very example of a qualified warning, the adequacy of which must be resolved through a highly intensive factual inquiry. It is into the first stage of this factual inquiry that the Court now embarks.
4. Factual Evaluation of the Warnings on Summary Judgment
Failing to show adequacy as a matter of law, Defendants claim that as a factual matter, the warning supplied with *1517 the Cu-7 adequately apprised the medical community of the risks associated with the product. The warning mentions the risks entailed in the use of the Cu-7, but states merely that incidents of pelvic inflammatory disease (PID) have been "reported", and that the reports of such problems are "unconfirmed". Dr. Daniel O'Brian, a Ph.D. retained as an expert by Plaintiff, testified by affidavit that the language in the guide for the physician did not adequately convey the information regarding the increased risk of the development of PID as reflected in medical literature, and that Defendant's warnings in fact tried to "minimize or negate" any warnings present in the physician package insert and patient brochure. Dr. O'Brian further opined that the warning was inadequate in that it did not present data to the physician or patient upon which they could make a judgement as to the comparative risk of developing pelvic inflammatory disease while wearing an IUD, versus such risk when using other forms of contraception.
Another of Plaintiff's experts, Dr. Harvey L. Bank, states through affidavit that the design of the Cu-7, specifically the tailstring, was defective, and that its deficiencies were not indicated in the warning. Additionally, Dr. Bank commented that the risks of PID and subsequent infertility as reported in Defendant's literature mischaracterized the relationship and incidence of PID that Defendant knew or should have known existed. These disputed issues of material fact are sufficient to defeat Defendant's motion for summary judgment on the issue of the adequacy of the warnings.
5. The Prescribing Physician as a Learned Intermediary Through Independent Knowledge
In the case of Felix v. Hoffman-LaRoche, Inc., supra at 105, the Florida Supreme Court stated that notwithstanding an inadequate warning by the manufacturer, the learned intermediary doctrine could nevertheless shield the manufacturer from liability where the prescribing physician was independently aware of the risks involved with the product:
[E]ven if it could be said that there was a factual dispute concerning the adequacy of the warning, any breach of the duty to warn in this case could not have been the proximate cause of the damage. The [trial] court reached this conclusion because the prescribing physician testified that he fully understood the warnings and also had prior knowledge of the teratogenic propensities of Accutane. Therefore we agree that any inadequacy in the Accutane warning could not have been the proximate cause of the birth defects in this case.
In line with Felix, Defendant claims that the prescribing physician in the case at bar, Dr. James, was aware of the relevant risks from his general experience as a gynecologist, his subscription to professional journals, and his residency at Lenox Hill Hospital in New York, where he frequently inserted the Cu-7. The record does indeed indicate that Dr. James was generally informed as to the dangers associated with the Cu-7. At deposition, Dr. James indicated that at the time of Plaintiff's insertion, he was aware that the IUD could cause infections which could in turn result in "damage to the [fallopian] tubes which may prevent pregnancy or may result in abnormal pregnancy, such as an ectopic pregnancy." Deposition of Dr. James at 8. Furthermore, Dr. James stated that he was aware that these infections could "result in infertility." Id. at 14. In short, Defendant concludes that Dr. James is the archetypical "learned intermediary" who, despite an allegedly inadequate warning, was nevertheless fully informed as to the risks associated with the product.
Notwithstanding Defendant's lauding of Dr. James' independently acquired acumen concerning the Cu-7, the record as presented gives this Court reason to pause before casting Dr. James in the leading role of an independently informed learned intermediary. The Felix Court specifically noted that there was "no contention that the warning given in this case contained any misstatements". Felix, supra at 104. In contrast to Felix, Plaintiff in the case at bar vehemently contends that the warnings provided by Defendant regarding the Cu-7 did contain misrepresentations which mislead the medical community as to the magnitude *1518 of the risks involved. In support of these allegations of misrepresentative "warnings", Plaintiff offers the affidavits of various medical experts. Through affidavit, Dr. Harvey Bank, states that in his opinion Defendant "mischaracterized the relationship and incidence of PID Searle knew or should have known existed." Additionally, Dr. Bank states that Defendant's "medical studies and record keeping were inadequate ... to determine the actual rate of PID experienced with the use of the device. However, [Defendant] reported an inaccurate rate to the FDA and used the inaccurate rate as a basis for some of its statements in the patients [sic] booklet and physicians [sic] inserts".
Although the line drawn between misstatements in the warning, and general inadequacy of the warning may at first blush seem enigmatic and elusive, close inspection reveals considerable persuasive force behind the increased threshold that must be met when attempting to qualify the prescribing physician as a learned intermediary after being exposed to misrepresentative product warnings. In his deposition, Dr. James admits that he relied heavily on the literature supplied by Defendant in forming his opinion as to the risks associated with Cu-7.[3] The "independent knowledge" category of the learned intermediary doctrine is necessarily premised on the ability of the physician to move beyond the educative deficiencies of the product warning in forming a realistic opinion of the product's risks through an independent research of professional journals. If Defendant's literature were merely inadequate, yet devoid of material misstatements, it is entirely conceivable that the prescribing physician could reach the fully informed state of a "learned intermediary" through independent reading. When, however, the universe of information from which the physician must piece together a conception of the totality of the risks involved with a product includes misstatements by the product manufacturer, the physician's task becomes Herculean, for he or she must not only supplement the warning, but actually refute the errors communicated by the manufacturer.
This is not to say that it is impossible for a manufacturer to show that the physician had formed an accurate opinion as to a product's safety where the product warning contains misstatements from the manufacturer. Rather, the presence of misstatements in the manufacturer's literature heightens the evidentiary threshold which must be crossed by the manufacturer on summary judgment in its endeavor to show that the physician was an intermediary sufficiently informed to interrupt the causal link of liability between the manufacturer and the plaintiff as a matter of uncontroverted fact. In sum, the record presented is not sufficiently compelling to persuade this Court that despite the presence of possible misstatements, Dr. James was nevertheless fully informed as to the risks associated with the Cu-7.
C. STRICT LIABILITY AND THE APPLICABILITY OF COMMENT K
Having adopted section 402A of the Restatement (Second) of Torts, Florida imposes strict liability upon manufacturers for unavoidably dangerous products which are sold with the knowledge that they are to be used by consumers without any inspection by them for defects. West v. Caterpillar Tractor Co., 336 So.2d 80, 86 (Fla. 1976). However, Florida has adopted Comment k to Section 402A, which creates an exception to strict liability for products which are "incapable of being made safe" provided that they are "properly prepared" and marketed with a "proper warning":
There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences *1519 when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desireable product, attended with a known but apparently reasonable risk.
Defendant argues that Comment k operates to exempt the Cu-7 from strict liability. Plaintiffs, however, contend that the Cu-7 does not fall within the scope of Comment k, on the grounds that Comment k should apply only to drugs which are "incapable of being made safe" such as a rabies vaccine, and not to common drugs such as birth control devices. The approaches taken by Courts facing the question of whether or not a certain product is encompassed by Comment k have followed two distinct paths. Many Courts have concluded that Comment k is applicable to all prescription drugs. See, e.g., Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87 (2d Cir.1980); Brown v. Superior Court, 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470 (1988); McKee v. Moore, 648 P.2d 21 (Okl.1982); Terhune v. A.H. Robins Co., 90 Wash.2d 9, 577 P.2d 975, 977-78 (1978). Other Courts, however, have limited the application of Comment k to "circumstances when it is shown that the product is incapable of being made safe given the present state of human knowledge but possesses such a high degree of social need so that its use is warranted, provided warnings are adequate." Hill v. Searle Laboratories, 884 F.2d 1064, 1068 (8th Cir.1989) (holding that whether a product is within Comment k should be determined on a case by case basis where it is shown that the product is unavoidably unsafe and product of "exceptional social need"); see also, Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir.1985); Kociemba v. G.D. Searle & Co., 680 F.Supp. 1293, 1301 (D.Minn.1988); Patten v. Lederle Laboratories, 676 F.Supp. 233, 236 (D.Utah 1987); Hawkinson v. A.H. Robins Co., Inc., 595 F.Supp. 1290, 1308 (D.Colo.1984).
One obvious appeal of adopting the bright-line rule that all prescription drugs are protected by Comment k is that such a rule would avoid the necessity of making difficult decisions as to which drugs are unavoidably unsafe, and which ones could be made safer. Yet however expedient such a clear-cut rule might be, this interpretation of Comment k would appear to be rejected by the clear wording of the Comment itself. Rather than simply stating that all prescription drugs are within its domain, Comment k explicitly specifies three prerequisites which must be met before a product falls within its protection. First, the product must be "incapable of being made safe." Second, the product must be "properly prepared and marketed". Third, a "proper warning" must be given. Applying Comment k to all prescription drugs completely ignores these three expressly stated prerequisites. Moreover, as noted by the Eighth Circuit in Hill, supra at 1069, such a blanket exception to strict liability for all prescription drugs was proposed at the American Law Institute meeting where section 402A and Comment k were adopted, but this proposal was defeated. 38 ALI Proc. 19, 90-98 (1961). Indeed, the example provided in the body of Comment k Pasteur's rabies vaccination indicates that Comment k was *1520 designed to apply to drugs which are unavoidably unsafe, but are nonetheless desireable for use in treating an affliction with greater destructive effects. In contrast to the example of the rabies vaccination, the Cu-7 is not the sine qua non of birth control, but only one alternative amongst a host of competing products. In Florida, this interpretation finds support in the case of Russell v. Community Blood Bank, Inc., 185 So.2d 749, 755 (Fla.App. 1966), and in the case of McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, 174 So.2d 736 (Fla.1965), where the court stated that before applying Comment k, it was necessary for the court to find that the product was "unavoidably unsafe".
Thus, this Court concludes that in order to avail itself of the affirmative defense to strict liability provided by Comment k, a defendant must satisfy the following three requisite elements: that the drug be (1) incapable of being made safe; (2) properly prepared and marketed; and, (3) accompanied by a proper warning. As to the first and second elements, although the Court suspects that they both can be demonstrably satisfied without difficulty, the record presented is insufficient to support a finding that the Cu-7 was incapable of being made safe and was in fact properly prepared to specifications. Concerning the final element, (as discussed in Section II-B-2 above), scrutiny of the record reveals that the issue of the adequacy of the warning is plagued with far too many controverted issues of fact to be susceptible to summary disposition at this time.
D. COUNT VI: STATUTORY DECEIT
Count VI of the Complaint alleges a claim for statutory deceit pursuant to Chapter 499, Florida Statutes, the Florida Drug and Cosmetic Act, ("The Act"). Defendant maintains that Chapter 499 is inapplicable because it was enacted after the alleged acts of fraud and deceit. Chapter 499 of The Act became effective on October 1, 1982. Chapter 82-225, Section 43, Laws of Florida. Plaintiff was inserted with her Cu-7 in October 1981, a year before the effective date of Chapter 499. It is a well-established rule of statutory construction that statutes are presumed to operate prospectively only, absent clear legislative intent to the contrary. Seddon v. Harpster, 403 So.2d 409, 411 (Fla.1981). Plaintiff does point out that prior to Chapter 499, Chapters 500.01, and 500.02 prohibited false advertising of drugs, and could therefore support the same action. However, if Plaintiff wishes to pursue an action under either of these statutes, she must amend her complaint to so reflect.
In light of the above, Plaintiff's claim for statutory deceit is dismissed. Plaintiff will have thirty days in which to amend her claim in conformity with the proper statute.
III. CONCLUSION
In conclusion, Defendant's summary judgment is denied as to Counts I-V, and granted as to Count VI. Plaintiffs shall have thirty days in which to amend Count VI.
DONE AND ORDERED.
NOTES
[1] For example, the Michigan courts have concluded that contraceptives should not be subject to the learned intermediary doctrine because the use of contraceptives, unlike most prescription drugs, is initiated and directed by the patient, not the physician. This increased role of the patient has caused the manufacturers to direct their literature at prospective patients, creating a consumer/producer relationship for which the reasoning of the learned intermediary doctrine is inapplicable. See, e.g., Odgers v. Ortho Pharmaceutical Corp., 609 F.Supp. 867 (E.D.Mich.1985); Stephens v. G.D. Searle, 602 F.Supp. 379 (E.D.Mich.1985).
[2] The regulation provides in pertinent part that: [l]abeling, in sufficient quantities to be available to patients who express interest in IUDs, shall accompany each drug IUD (packaged separately from the sterile packaging), [and] be made available to the patient.... 21 C.F.R. 310.502(2).
[3] At his deposition, Dr. James was asked the following question: "At the time you inserted the IUD in [Plaintiff], was your information concerning the rate of pelvic infection relied partially on the documentation provided to you by Searle?" In response, Dr. James answered, "Partly, yes". Deposition of Dr. James at 26.
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Opinion filed October 8, 2009
Opinion filed October 8,
2009
In The
Eleventh
Court of Appeals
____________
No. 11-08-00078-CV
__________
WILLIAM GILMORE, Appellant
V.
TED
COLLINS, JR. ET AL, Appellees
On
Appeal from the 238th District Court
Midland
County, Texas
Trial
Court Cause No. CV-45,330
M
E M O R A N D U M O P I N I O N
William
Gilmore appeals from the trial court=s
denial of a petition for bill of review. In the petition, Gilmore sought to
have a 2004 order of dismissal for want of prosecution set aside so that he
could prosecute his counterclaim against appellees. We affirm.
In
his sole issue on appeal, Gilmore contends that the trial court erred in
denying his amended petition for bill of review.[1]
Gilmore sought the bill of review based upon the alleged lack of notice of the
following: the court=s
intent to dismiss for want of prosecution, the dismissal hearing, and the order
of dismissal. A bill of review is an equitable proceeding to set aside a prior
judgment that can no longer be challenged by a motion for new trial or appeal.
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Traditionally, a
bill of review requires proof of three elements: (1) a meritorious defense or
claim, (2) that was not asserted because of an official mistake or the fraud,
accident, or wrongful act of an opponent, and (3) unmixed with any fault or
negligence on the part of the movant. Ross v. Nat=l Ctr. for the Employment
of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006); Caldwell, 154
S.W.3d at 96.
Before
a case may be dismissed for want of prosecution, the parties must be provided
with notice and an opportunity to be heard. Villarreal v. San Antonio Truck
& Equip., 994 S.W.2d 628, 630 (Tex. 1999). Gilmore argues that neither
he nor his attorney were provided with the proper notices. At trial, Gilmore
had the burden of proof on his bill of review. See Caldwell, 154 S.W.3d
at 96-97.
The
record from the trial on the bill of review shows that Gilmore was represented
by Timothy J. Herman in 1996 when the underlying case was filed in state court
by Ted Collins Jr. and Herbert E. Ware Jr., individually and d/b/a Collins
& Ware, a partnership, against William Gilmore d/b/a Gilmore Oil &
Gas. Herman filed a counterclaim on Gilmore=s
behalf B the dismissal
of which is at issue in this bill of review. Herman=s address changed in June 1997, and he
notified the court clerk and opposing counsel of his new address at that time
(though opposing counsel later informed the trial court that he had no address
for Herman).
The
assistant chief deputy clerk testified that it was standard practice to update
an address in the computer upon receiving a notice of change of address and
that, subsequent to Herman=s
notice of change of address, the clerk=s
office mailed all notices to Herman at his new address including the order for
status report, the notice of intent to dismiss for want of prosecution, and the
order of dismissal. The record shows that, based upon responses filed by
Herman, Herman had received other notices that were sent by the clerk=s office to him at his new
address. None of the mail sent to Herman was returned as undeliverable.
Herman remained the attorney of record until September 2005.
In
the interim, Gilmore=s
bankruptcy attorney notified the trial court on September 30, 1997, that
Gilmore had filed for bankruptcy. Herman did not represent Gilmore in the bankruptcy
proceedings. The cause of action that had been asserted in Gilmore=s counterclaim in state
court was filed by Gilmore as an adversary proceeding in the bankruptcy court.
The underlying state case was stayed pending the bankruptcy action. Because of
Gilmore=s failure to
comply with court orders, the bankruptcy court dismissed Gilmore=s adversary case against
Collins and Ware in February 2000, with prejudice only as to federal court
proceedings. Gilmore was discharged from bankruptcy on June 21, 2000.
The
underlying case in state court remained inactive until September 2003 when the
trial court issued an order for a status report. The trial court subsequently,
in February 2004, issued a notice of intent to dismiss for want of prosecution,
which included the date and time of the scheduled dismissal hearing. The trial
court signed an order dismissing the case on March 8, 2004. Although the
orders and the notice were mailed to Herman, Herman testified that he Ahad not seen@ them. Herman stated that,
at some point in the past, his file had been Aretired@ and put into storage
because of the adversary case being filed in the bankruptcy court.
Gilmore
also denied seeing or receiving the dismissal documents until long after the
case had been dismissed. Even though Gilmore understood that the result of the
bankruptcy court=s
February 2000 dismissal was that he could proceed in state court, he did not
take any action to prosecute the underlying state case until September 9, 2005,
when he filed a motion to substitute counsel. Such conduct exhibits Gilmore=s fault or negligence in
failing to pursue his claim. The evidence is sufficient to support the trial
court=s findings that
Gilmore=s attorney was
properly notified by the clerk=s
office of the trial court=s
intent to dismiss for want of prosecution and of the dismissal of the case and
that Gilmore was not without fault in failing to pursue his claim against
Collins and Ware. We hold that the trial court did not err in denying Gilmore=s bill of review. Gilmore=s sole issue on appeal is
overruled.
The
judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
October 8, 2009
Panel consists of: Wright, C.J.,
McCall, J., and
Strange, J.
[1]Appellees assert that Gilmore waived any alleged error
by not expressly attacking the sufficiency of the evidence in his issue. We
cannot hold that Gilmore failed to preserve error. See Perry v. Cohen,
272 S.W.3d 585 (Tex. 2008). Gilmore=s
brief is sufficient to put this court on notice of his evidentiary contention;
Gilmore specifically argued that the evidence proved that neither he nor his
attorney received the proper notices.
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Fourth Court of Appeals
San Antonio, Texas
November 10, 2016
No. 04-16-00710-CV
IN THE INTEREST OF J.K.L., J.A.L., AND J.C.L.,
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00056
Honorable Charles E. Montemayor, Judge Presiding
ORDER
This is an accelerated appeal of the trial court’s order terminating appellant’s parental
rights. The reporter’s record was due on November 7, 2016, but has not been filed. We therefore
ORDER the court reporter responsible for preparing the reporter’s record to file the reporter’s
record on or before November 21, 2016. NO EXTENSIONS WILL BE GRANTED.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 10th day of November, 2016.
___________________________________
Keith E. Hottle
Clerk of Court
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--------------------------------------------------------------------------------
TENTH COURT OF APPEALS
Chief Justice
Tom Gray
Justice
Rex D. Davis
Al Scoggins
McLennan County Courthouse
501 Washington Avenue, Rm 415
Waco, Texas 76701-1373
Phone: (254) 757-5200 Fax: (254) 757-2822
Clerk
Sharri Roessler
August 31, 2016
In accordance with the enclosed Opinion, below is the judgment in the numbered cause set out herein to be entered in the Minutes of this Court as of the 31[st] day of August, 2016.
10-14-00384-CV MARK KEN TAFEL v. THE STATE OF TEXAS - ON APPEAL FROM THE COUNTY COURT OF HAMILTON COUNTY - TRIAL COURT NO. 15291 - AFFIRMED - Opinion by Justice Scoggins:
"This cause came on to be heard on the transcript of the record, and the same being considered, because it is the opinion of this Court that there was no error in the judgment of the court below; it is therefore ordered, adjudged and decreed that the judgment of the court below be, and hereby is, affirmed. It is further ordered that appellant pay all costs in this behalf expended, and that this decision be certified below for observance."
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74 F.3d 387
64 USLW 2494
UNITED STATES of America, Appellee,v.Kemi IDOWU, Defendant-Appellant.
No. 307, Docket 95-1110.
United States Court of Appeals,Second Circuit.
Argued Oct. 13, 1995.Decided Jan. 12, 1996.
Howard L. Jacobs, New York City (Susan Beth Jacobs, New York City, of counsel), for Defendant-Appellant.
Arthur P. Hui, Assistant United States Attorney, New York City, Jo-Anne Weissbart, Assistant United States Attorney, New York City, (Zachary W. Carter, United States Attorney for the Eastern District of New York City, New York, Peter A. Norling, Assistant United States Attorney, of counsel) for Appellee.
Before: NEWMAN, Chief Judge, CARDAMONE and CABRANES, Circuit Judges.
JOSE A. CABRANES, Circuit Judge:
1
The defendant, Kemi Idowu, appeals from a judgment entered February 13, 1995, by the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge ), convicting her, after a jury trial, of importation of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. Secs. 952(a) and 841(a)(1), and sentencing her principally to imprisonment for 151 months. Idowu challenges that judgment on two grounds. First, she argues that her indictment should have been dismissed on double jeopardy grounds because the civil forfeiture of her property constituted a prior punishment for the same offense. Second, she argues that she was entitled to an adjustment at sentencing for her mitigating role in the offense pursuant to Sec. 3B1.2 of the Sentencing Guidelines and that she should not be subject to the mandatory minimum sentence. For the reasons set forth below, we affirm the judgment of conviction and the sentence imposed.
I. Background
2
On March 15, 1994, Kemi Idowu was indicted in the Eastern District of New York on one count of importing heroin into the United States and one count of possession with intent to distribute heroin. She was tried on those charges on August 15, 1994.
3
A. The Crime, Arrest, Trial, Conviction, and Sentence
4
The following is an account of the evidence presented by the government at trial. On February 13, 1994, Idowu was arrested at John F. Kennedy International Airport ("JFK") for attempting to smuggle eight kilograms of heroin into the United States from Nigeria. The heroin was found in the defendant's suitcase during a routine examination by the United States Customs Service ("Customs"). According to the testimony of Special Agent Peter Killie, Idowu agreed to cooperate with law enforcement after her arrest.
5
Killie testified that Idowu told him she received the suitcase from a "Mrs. T" in Lagos, Nigeria, and that she was to travel to her home in Boston from JFK, where she would receive further instructions regarding the delivery of the suitcase. Initially, Idowu claimed not to know the contents of the suitcase. In an attempt to catch others involved in the scheme, agents transported Idowu home to Boston and arranged a so-called controlled delivery. Killie arranged for Idowu to call Mrs. T in Nigeria to tell her that she would be delayed in arriving in Boston. Idowu's calls to Nigeria were conducted in her native Yoruba language. After several unsuccessful attempts to reach Mrs. T, Idowu left a message, telling agents that she had asked Mrs. T to call her in Boston.
6
Agent Killie testified that he accompanied Idowu to Boston, where they were joined by Special Agents Edward Salvas and Jim Scott. In Boston, Idowu told Killie that half the heroin was for "Daniel" and the other half was for Mrs. T. This was later confirmed by agents who noted that the bags of heroin were labeled with initials on them.
7
Salvas testified that Idowu consented to a search of her apartment in Boston. Salvas testified that although Idowu told him no money or drugs were to be found in her apartment, the search uncovered approximately $14,993 in cash and $660 in traveler's checks. According to Salvas, when he confronted Idowu about the cash, she admitted carrying cash for Daniel to Nigeria and Chicago on several prior occasions. She also informed Salvas that she was instructed to call Daniel to arrange for delivery of the suitcase in the event she was unable to reach Mrs. T. Salvas testified that Idowu admitted that she had carried cash for Daniel to Nigeria on her most recent trip and that the money found in her apartment was related to drug transactions. He further testified that Idowu told him that she traveled from Boston to Nigeria on January 7, 1994, to attend her sister's wedding and, while she was there, Mrs. T asked her to carry a suitcase back to Boston.
8
According to the government, Salvas arranged for Idowu to call Daniel, and she spoke with him briefly--again, in Yoruba. Idowu told agents that from her conversation she believed Daniel knew that she had been arrested. However, subsequent transcription and translation of recordings of Idowu's previous phone calls indicated that in her first phone call to Nigeria, Idowu had told her contacts that she had been arrested. Salvas also testified that Idowu told him she had recently purchased a 1993 Nissan Altima. Although Idowu told him that she had shipped the vehicle to Nigeria, agents located the car in a parking lot at Boston's Logan Airport on February 17, 1994. Subsequent investigation revealed that the car had been bought with $16,000 in cash.
9
Idowu testified on her own behalf at trial, denying the charges against her. She admitted telling contacts during her phone calls to Nigeria that she had been arrested, but she denied telling agents that the heroin was for Mrs. T and Daniel or that she had carried money for Daniel on previous occasions. She claimed that she was simply doing a favor for Mrs. T by carrying what she believed to be a suitcase of food into the United States. She also testified that the Nissan was a gift from her boyfriend. Idowu testified that she supported herself and her son through public assistance, and that the nearly $15,000 in cash found in her apartment had been sent by her parents who are wealthy Nigerians. On August 17, 1994, the jury returned a verdict of guilty on both counts of the indictment. On February 9, 1995, after denying Idowu's motion to dismiss pursuant to Rule 29--which will be discussed in greater detail below--the district court sentenced Idowu principally to 151 months imprisonment, the minimum sentence under the guidelines.
B. The Forfeiture
10
On February 14, 1994, Customs in Boston seized the $14,993 in cash and the $660 in traveler's checks found in Idowu's apartment. Three days later, it also seized the Nissan. By two separate letters dated March 21, 1994, Customs notified Idowu of the seizure of the money and the car. She was informed that the money was subject to forfeiture pursuant to 19 U.S.C. Sec. 1595a(a) (currency used to facilitate the importation and subsequent transportation of a controlled substance); 21 U.S.C. Sec. 881(a)(6) (proceeds in exchange for a controlled substance); and 18 U.S.C. Sec. 981(a)(1)(B) (property representing the proceeds of unlawful activity). Similarly, the car was seized and subject to forfeiture pursuant to 19 U.S.C. Secs. 1595a(a) (vehicle used to facilitate the importation and transportation of controlled substance); 21 U.S.C. Sec. 881(a)(6) (proceeds in exchange for a controlled substance); and 18 U.S.C. Sec. 981(a)(1)(A) (property representing unlawful activity). Both letters advised Idowu of the procedures to contest the administrative forfeiture of her property, including the need to file a claim and a cost bond within 20 days of April 21, 1994, and April 22, 1994, respectively. Both notices also advised Idowu that "[u]pon satisfactory proof of financial inability to pay the bond, it would be waived." Idowu did not respond to either of these letters.
11
By two letters dated May 13, 1994, Customs wrote to Idowu, noting that she had failed to respond to previous correspondence regarding the seized currency and the automobile, and stating that she had until 20 days after May 4, 1994, to file a claim and a cost bond. Again, she failed to do so.
12
On June 17, 1994, the attorney representing Idowu in her criminal case in the Eastern District of New York1 wrote to Customs in Boston requesting that the forfeiture proceeding be stayed pending the outcome of the criminal case. In response, Customs sent a letter to defendant and her counsel, dated July 11, 1994, allowing Idowu until August 12, 1994, to file a claim and either a cost bond or a bond waiver request. The letter stated that although Customs would not stay the forfeiture proceeding, if Idowu filed a claim and cost bond (or obtained a waiver), the case would be referred to the U.S. Attorney's office for judicial forfeiture proceedings, and Idowu could renew her request for a stay at that time. Customs also noted that a request for waiver should "include as much information as possible regarding ... Idowu's financial assets and liabilities."
13
In a letter dated July 28, 1994, Idowu filed a claim for the car, the money, and the traveler's checks with Customs in Boston, claiming that they were neither the proceeds of criminal activities nor were they used in an illegal manner. She also requested a bond waiver, stating simply: "I am indigent. I have no money and I am incarcerated and unable to work or obtain any money." On August 22, 1994--five days after the jury returned its verdicts of conviction in her criminal case in the Eastern District of New York--Customs advised Idowu that her request for a waiver of bond had been denied because she had offered insufficient information regarding her financial assets and liabilities. The letter from Customs informed Idowu that she must submit a bond deposit by September 1, 1994, in order to avoid administrative forfeiture pursuant to 19 U.S.C. Sec. 1609.2
14
On August 26, 1994, Idowu requested a thirty-day extension of time to obtain money from her family in Nigeria to post the required bond. Customs Officer Stephen Leonard authorized an additional extension of time until September 12, 1994. Although Idowu and her attorney in the criminal action had subsequent telephone conversations with Customs in which they claimed that Idowu's family would file the bond deposit by the September 12 deadline, no deposit was ever filed. Accordingly, on September 13, 1994, Customs in Boston executed an administrative "Declaration of Forfeiture" pursuant to 19 U.S.C. Sec. 1609, forfeiting the car, the money, and the traveler's checks.
15
On November 21, 1994, Idowu, represented by new counsel in her criminal case, filed a Rule 29 motion3 seeking dismissal of her indictment on the ground that it was barred by the Double Jeopardy Clause of the Fifth Amendment of the Constitution. In opposition, the government argued that: (1) the defendant had waived any claim she had by failing to contest the administrative forfeiture; (2) the forfeiture and criminal prosecution constituted a single, coordinated proceeding; (3) the Double Jeopardy Clause did not apply because her criminal prosecution and the forfeiture of her property were based on different offenses; and (4) the Double Jeopardy Clause was not, in any event, implicated because the defendant's property was administratively forfeited after her criminal conviction.
16
At a hearing on February 9, 1995, Judge Glasser denied Idowu's Rule 29 motion "for all the reasons indicated in the government's brief." He also denied Idowu's motion for a four-point reduction in offense level, sentencing her to 151 months' imprisonment--the minimum sentence under the applicable guidelines range.
II. Discussion
A. Double Jeopardy
17
The Double Jeopardy Clause of the Fifth Amendment4 protects a defendant against three distinct abuses: "a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Idowu argues that the Double Jeopardy Clause barred her criminal prosecution for importation of heroin and possession with intent to distribute heroin because she had already been punished by the forfeiture of the Nissan, the $14,993 in cash, and the $660 in traveler's checks. The government argues that several independent grounds support the district court's holding that Idowu's criminal prosecution did not put her twice in jeopardy in violation of the Constitution.
18
1. Forfeiture as "Punishment"
19
On appeal, the government contends that the administrative forfeiture in this case did not implicate double jeopardy because it was not an "overwhelmingly disproportionate sanction" and therefore did not constitute "punishment" for the purposes of the Double Jeopardy Clause. Idowu counters that our proportionality test, as set forth in United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.), cert. denied sub nom. Levin v. United States, 506 U.S. 815, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992), is no longer the appropriate test for determining whether a civil forfeiture may be classified as punishment, and that under the Supreme Court's holding in Austin v. United States, --- U.S. ----, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), all civil forfeiture constitutes punishment within the meaning of the Double Jeopardy Clause. Both arguments overly simplify a complex and confused question.
20
In Halper, the Supreme Court held that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." 490 U.S. at 448, 109 S.Ct. at 1901-02 (emphasis supplied). We considered Halper's impact on civil forfeiture in 38 Whalers Cove Drive, where we held that "[civil forfeitures] that are overwhelmingly disproportionate to the value of the offense, must be classified as punishment unless the forfeitures are shown to serve articulated, legitimate civil purposes." 954 F.2d at 35. We went on to note that "legitimate civil purposes" for forfeiture include the removal of "instrumentalities of crime from general circulation" and the compensation of "the government's investigation and enforcement expenditures, in addition to any damages the government may suffer directly as a result of criminal acts." Id. at 35-36.
21
In Austin, the Supreme Court held that civil forfeitures pursuant to 21 U.S.C. Secs. 881(a)(4) and (a)(7) constituted punishment for the purposes of the Excessive Fines Clause of the Eighth Amendment.5 --- U.S. at ----, 113 S.Ct. at 2812. In that case, the Court considered whether the forfeiture statutes at issue were remedial or punitive, rather than whether the forfeiture of the property involved in the case was remedial or punitive. In concluding that forfeitures pursuant to these particular statutes were not solely remedial--and therefore under Halper must be considered punitive--the Court considered three factors: (1) the historical understanding of forfeiture as punishment; (2) the focus of the statutes on the culpability of the owner; and (3) evidence, such as legislative history, that Congress understood these provisions as serving to deter and to punish.6 Id. at ----, 113 S.Ct. at 2812.
22
Our court has not yet applied the Austin approach to double jeopardy cases. In United States v. United States Currency in the Amount of $145,139.00, 18 F.3d 73, 75 (2d Cir.), cert. denied sub nom. Etim v. United States, --- U.S. ----, 115 S.Ct. 72, 130 L.Ed.2d 27 (1994), a panel of this court applied Whalers Cove, without citing Austin, noting that the forfeiture of currency employed as an "instrumentality of the crime" was not punitive under Halper. In an even more recent opinion, another panel of our court considered, without deciding, whether the Supreme Court in Austin intended to supersede the case-by-case methodology of Halper and Whalers Cove for determining whether forfeiture constitutes punishment for the purposes of the Double Jeopardy Clause. United States v. All Assets of G.P.S. Automotive, 66 F.3d 483, 491 (2d Cir.1995).
23
Four other circuits that have considered this question have concluded that "the only fair reading of the Court's decision in Austin is that it resolves the 'punishment' issue with respect to forfeiture cases for purposes of the Double Jeopardy Clause as well as the Excessive Fines Clause." United States v. $405,089.23 United States Currency, 33 F.3d 1210, 1219 (9th Cir.1994), amended in part on denial of rehearing, 56 F.3d 41 (9th Cir.1995), cert. granted, --- U.S. ----, 116 S.Ct. 762, --- L.Ed.2d ---- (1996); see United States v. Baird, 63 F.3d 1213, 1216 (3d Cir.1995) (quoting $405,089.23 United States Currency with approval), petition for cert. filed, 64 U.S.L.W. 3318 (U.S. Oct. 17, 1995) (No. 95-630); United States v. Perez, 70 F.3d 345, 348-49 (5th Cir.1995) (applying Austin approach to civil forfeiture under 21 U.S.C. Sec. 881(a)(4) for purposes of double jeopardy analysis); United States v. Ursery, 59 F.3d 568, 573 (6th Cir.1995) ("[U]nder Halper and Austin, any civil forfeiture under 21 U.S.C. Sec. 881(a)(7) constitutes punishment for double jeopardy purposes."), cert. granted, --- U.S. ----, 116 S.Ct. 762, --- L.Ed.2d ---- (1996); cf. United States v. Tilley, 18 F.3d 295, 300 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994) (finding Austin approach inapplicable to forfeiture of drug proceeds under Sec. 881(a)(6),7 because such proceeds can be said to be "roughly proportion[ate]" to the costs incurred by the government and society as a result of the crimes). Although it is not clear that the Supreme Court intended Austin to define punishment for the purposes of double jeopardy analysis, we see no principled basis for distinguishing between "punishment" in the context of the Excessive Fines Clause and "punishment" in the context of the Double Jeopardy Clause. If Idowu's claim involved judicial forfeiture, the district court might have been required to apply the Austin analysis to the relevant forfeiture statutes to determine whether Iodwu had twice been placed in jeopardy. Because we conclude that administrative forfeiture of property does not constitute punishment, Idowu's claim fails in any event.
2. Waiver
24
Administrative forfeitures are authorized by the procedural provisions of the customs laws8 and are incorporated by reference in various civil forfeiture statutes.9 Pursuant to 19 U.S.C. Sec. 1607(a), if property falls within any of four categories,10 it may be forfeited by the seizing agency if proper notice of the seizure and intent to forfeit is given and no person files a claim to the property, accompanied by a cost bond, within the allotted time period. Id. Sec. 1609. The customs laws require the filing of claims within 20 days of the date of the first publication of the notice of seizure and intent to forfeit. Id. Sec. 1608. Such claims must be accompanied by a cost bond in an amount determined by statute, see id.; seizing agencies may waive the cost bond requirement in cases of demonstrated indigence, see 19 C.F.R. Sec. 162.47(e). The proper and timely filing of a claim and cost bond stops the administrative forfeiture process, and requires the seizing agency to refer the matter to the United States Attorney for the district where the property was seized for the institution of judicial forfeiture proceedings. Id. Secs. 1603(b) and 1608. Where no person files a claim or bond within the statutory period, the agency is authorized to declare the property forfeited. Id. Sec. 1609.
25
In effect, administrative forfeiture is appropriate only in cases where the seized property goes unclaimed. Indeed, "administrative forfeiture is, in reality, a non-proceeding--it is merely the consequence of no one having come forward to claim the property seized or contest its forfeitability." Baird, 63 F.3d at 1217; see United States v. Cretacci, 62 F.3d 307, 310 (9th Cir.1995) ("[A]n administrative forfeiture of unclaimed property simply constitutes the taking of abandoned property."). In the instant case, the government argues that the forfeiture of unclaimed property--that is, the administrative forfeiture--cannot have "punished" anyone. Accordingly, the seizure of the unclaimed car, money, and traveler's checks did not place Idowu in jeopardy.
26
It is the unanimous view of the circuits that have considered the question that an administrative forfeiture resulting from a defendant's failure to claim property cannot implicate double jeopardy. These courts reason that a defendant who fails to contest the forfeiture is never a party to the forfeiture proceeding (which is technically brought against the property itself, rather than its owner), and as a non-party, the defendant cannot be punished and thus cannot be placed in jeopardy.
27
Because [the defendant] failed to contest the forfeiture, he never became a party to any judicial proceeding, criminal or civil. In fact, no judicial proceeding occurred prior to the forfeiture of the money--such being the very nature of administrative forfeiture. [The defendant] has therefore yet to have been placed in jeopardy, or at risk, of a determination of "guilt" and the concomitant imposition of "punishment."
28
Baird, 63 F.3d at 1219 (3d Cir.1995); see United States v. Arreola-Ramos, 60 F.3d 188, 192 (5th Cir.1995) ("[A] summary forfeiture, by definition, can never serve as a jeopardy component of a double jeopardy motion.... [T]here is no trial, there are no parties, and no one is punished."); United States v. Ursery, 59 F.3d 568, 572 (6th Cir.1995) (citing United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994)), (for the proposition that "jeopardy does not attach to a civil forfeiture when the party claiming double jeopardy was not a party to the forfeiture proceeding"); United States v. Ruth, 65 F.3d 599, 603 (7th Cir.1995) ("The failure to contest the forfeiture ... mean[s] that the defendant was not a party to the forfeiture and thus ha[s] not been subjected to a 'former jeopardy.' "); Cretacci, 62 F.3d at 310 (9th Cir.1995) (concluding that administrative forfeiture of unclaimed property "imposes no 'punishment' for purposes of the Double Jeopardy Clause").
29
Idowu argues that this rule is not applicable here for two reasons: (1) the property at issue could not be deemed "abandoned" or unclaimed because the agents who seized it knew that it belonged to her, and (2) she actually filed a claim to the property in dispute, but merely failed to file a bond or obtain a bond waiver. For the reasons set forth below, both of Idowu's arguments fail.
30
First, we find it irrelevant whether or not the seizing agency--in this case, the Customs Service--knows that the defendant owns the property. If the defendant wishes to assert ownership of seized property after notice of forfeiture, she must assert her interest by filing a claim and a cost bond, thus requiring the government to institute judicial forfeiture proceedings. See United States v. Washington, 69 F.3d 401, 404 (9th Cir.1995) ("Even if [the defendant's] physical possession of the money did support his interest in it at the time of the seizure, ... it does not demonstrate that [the defendant] wished to pursue that interest once the Government notified him that it was seeking forfeiture of the money."); Baird, 63 F.3d at 1218 ("Even if we were to assume, arguendo, that [the defendant] was the owner of the seized and forfeited money, ... we do not agree that administrative forfeitures place in jeopardy the person whose property is so forfeited."); United States v. Kemmish, 869 F.Supp. 803, 804 (S.D.Cal.1994) ("Even where the unclaimed property is titled in the name of some person, personal rights protected by the Double Jeopardy Clause are not affected by the forfeiture of the property through administrative proceedings."), aff'd mem. 66 F.3d 336 (9th Cir.1995).
31
Idowu's second argument--that she "assert[ed] her rights in the administrative forfeiture proceeding" and that "[h]er failure to file the bond should not ... constitute a waiver of her [double jeopardy] rights"--fails as well. First, in failing to file a cost bond or obtain a waiver, Idowu did not satisfy the statutory requirements for avoidance of the administrative forfeiture of the property at issue. See 19 U.S.C. Sec. 1608; 19 C.F.R. Sec. 162.47. Idowu was given every opportunity to apply for a bond waiver or file a bond. She was given two extensions of time in order to file her claim and bond, and the procedure for obtaining a bond waiver was clearly set forth in documents sent to her by Customs. In her letter of July 28, 1994, Idowu claimed the property, but did not provide sufficient financial information to justify a bond waiver. After denying Idowu's application for a waiver, Customs again extended the deadline for posting a bond until August 29, 1994. At Idowu's request, on August 27, 1994, she was given still another extension until September 12, 1994. It was only after she failed to post bond on September 12, 1994--more than four months after her initial forfeiture date in May 1994--that the agency executed a declaration forfeiting the property. According to the record, Idowu never challenged the administrative decree of forfeiture or otherwise sought return of the property on the ground that the agency improperly denied her a bond waiver, or that the administrative forfeiture itself was defective. On appeal she does not challenge the validity of the forfeiture--indeed, she clearly hopes that we will confirm the validity of the forfeiture and permit its use as a shield against prosecution.
32
For the reasons discussed above, a valid administrative forfeiture does not constitute "punishment" of the putative property owner. If the necessary statutory requirements are not met and no judicial forfeiture proceedings are instituted, no jeopardy attaches. In Ruth, 65 F.3d at 603-04, the Seventh Circuit found that jeopardy did not attach as a result of an administrative forfeiture where the defendant filed his claim to the property after the deadline. See also United States v. Amiel, 889 F.Supp. 615, 620-21 (E.D.N.Y.1995) (holding that party who filed a timely claim but defaulted by failing to pursue it could not rely on that forfeiture to assert a claim of double jeopardy). We find these cases persuasive. Because Idowu did not post bond or obtain a waiver, her property was subject to administrative forfeiture, and jeopardy simply could not, and did not, attach.
3. Attachment of Jeopardy
33
The government argues, finally, that even if jeopardy could be said to attach as a result of an administrative forfeiture, the defendant's double jeopardy claim must fail because jeopardy attached in the criminal case before it arguably attached in the forfeiture case.
34
It is well established that jeopardy attaches in a criminal prosecution when the jury is empaneled and sworn. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); United States v. White, 980 F.2d 836, 842 (2d Cir.1992). Accordingly, jeopardy attached in Idowu's criminal case on August 15, 1994.
35
Although we have never had occasion to consider when jeopardy attaches in a civil forfeiture proceeding, several other circuits have addressed the question. The majority of courts have held that jeopardy attaches (1) when the trier of fact begins to hear evidence at a judicial forfeiture proceeding, Baird, 63 F.3d at 1218 (holding that jeopardy does not attach until a defendant is "put to trial before a trier of facts"); Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994) (concluding that jeopardy attaches "when the case is first presented to the trier of fact"), or (2) when there is an order for final administrative action against the defendant's property. See Ursery, 59 F.3d at 572 ("Jeopardy attaches in a nontrial forfeiture proceeding when the court ... enters the judgment of forfeiture."); United States v. Park, 947 F.2d 130, 135 (5th Cir.1991) (holding that jeopardy does not attach until there is adjudication or final administrative action), vacated in part on other grounds on rehearing in part, 951 F.2d 634 (5th Cir.1992); Ragin v. United States, 893 F.Supp. 570, 574 (W.D.N.C.1995) ("[J]eopardy attaches when the final judgment of forfeiture is entered, and not when the claim or answer is filed or the property is seized."); cf. United States v. Barton, 46 F.3d 51, 52 (9th Cir.1995) (noting that the earliest jeopardy could attach to civil forfeiture proceedings was when the defendant "filed his answer to the forfeiture complaint").
36
Since Idowu never filed a claim to the property, the forfeiture was never brought before a trier of fact. The administrative declaration of forfeiture was not issued until September 13, 1994--almost one month after Idowu's trial commenced (August 15, 1994) and after her conviction on criminal charges (August 17, 1994). Accordingly, we find that jeopardy in the forfeiture action, if it attached at all, did not attach until well after jeopardy had attached in Idowu's criminal prosecution.
37
As noted above, the Double Jeopardy Clause protects criminal defendants from both successive prosecutions for the same offense after conviction and successive punishments for the same offense. See Halper, 490 U.S. at 440, 109 S.Ct. at 1897. At oral argument, a question was raised about whether the analysis for determining when jeopardy attaches changes when we focus on the Double Jeopardy Clause's prohibition against successive punishments, rather than its prohibition against successive prosecutions. More specifically, the issue is whether, in successive punishment cases, jeopardy should attach when the criminal trial begins and the defendant is placed at risk of being punished (as it is in successive prosecution cases) or whether it should attach when jeopardy is "complete"--that is, the date when the punishment is imposed. This question is important here because although Idowu was tried and convicted in August 1994 (a month before jeopardy arguably attached in the forfeiture case), she was not actually sentenced until February 13, 1995 (six months after jeopardy arguably attached in the forfeiture case). In United States v. Pierce, 60 F.3d 886, 889-90 (1st Cir.1995), petition for cert. filed, (U.S. Oct. 19, 1995) (No. 95-6474), the First Circuit rejected the identical argument about measuring the attachment of jeopardy from the date that punishment is "complete":
38
[This argument implies that] a defendant ought to have the option to endure an unconstitutional second trial in the hope that it will both conclude first and lead to a more lenient punishment than that eventually imposed in the first trial, and then to object to the punishment imposed in the first trial on double jeopardy grounds. We cannot locate any authority to support this proposition, and we reject it out of hand.
39
The Double Jeopardy Clause is a shield against the oppression inherent in a duplicative, punitive proceeding; it is not a tool by which a defendant can avoid the consequences of the proceeding in which jeopardy first attached.
40
Id. at 890. We find this reasoning persuasive, and likewise reject out of hand the theory that jeopardy in the context of successive punishments does not attach until the time of punishment.
41
Because the grounds set forth above are enough to require rejection of Idowu's double jeopardy claim in this appeal, it is not necessary for us to address the other arguments made by the government.
B. Sentencing Issues
42
The defendant also appeals the district court's order denying an adjustment for a mitigating role in the offense pursuant to U.S.S.G. Sec. 3B1.2. This provision of the Sentencing Guidelines permits the court to decrease a defendant's offense level by four points where it finds that the defendant was a minimal participant in the criminal activity and by two points where it finds the defendant was a minor participant. The application notes to Sec. 3B1.2 define a "minimal participant" as one who is "plainly among the least culpable of those involved in the conduct of a group," id. Sec. 3B1.2 app. n. 1, and a "minor participant" as "any participant who is less culpable than most other participants," comment, id. Sec. 3B1.2 app. n. 3.
43
A defendant bears the burden of proving her reduced culpability by a preponderance of the evidence when requesting an offense level reduction under U.S.S.G. Sec. 3B1.2. United States v. Shonubi, 998 F.2d 84, 90 (2d Cir.1993). "A district court's finding as to a defendant's role in a criminal activity is a factual determination that will not be disturbed unless 'clearly erroneous.' " United States v. Soto, 959 F.2d 1181, 1187 (2d Cir.1992). The determination of whether a role adjustment is appropriate in "courier" or "mule" cases depends upon "the nature of the defendant's relationship to the other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990) (per curiam).
44
Judge Glasser found that Idowu was not a mere drug courier, but rather, that she had extensive knowledge of the importation scheme and was connected to it in a variety of ways. There was sufficient evidence at trial to support the judge's finding that Idowu had a clear understanding of the nature and scope of the international drug operation involving Mrs. T and Daniel. Because Judge Glasser's findings are not clearly erroneous, we find that he acted properly in refusing to adjust Idowu's offense level under Sec. 3B1.2.11
III. Conclusion
To summarize:
45
1. We affirm the district court's denial of Idowu's Rule 29 motion seeking dismissal of her criminal indictment on the ground that it was barred by the Double Jeopardy Clause of the Fifth Amendment of the Constitution. Jeopardy did not attach as a result of the administrative forfeiture of the property because such property is, by definition, property that is not claimed. In essence, Idowu was not a party to that proceeding. Indeed, even if jeopardy could attach as a result of an administrative forfeiture, in this case jeopardy attached in Idowu's criminal trial before it attached in the forfeiture proceeding.
46
2. Because the district court's findings with respect to Idowu's role in the offense are not clearly erroneous, we find that the district court acted properly in refusing to accord her the adjustment pursuant to U.S.S.G. Sec. 3B1.2.
1
Attorney Stephen M. Goldenberg represented Idowu during her criminal trial in the Eastern District of New York. Mr. Goldenberg's letter indicated that, although he was writing to assist Idowu, he was not entering an appearance on her behalf in the forfeiture action. Goldenberg did, however, speak with a Customs officer regarding the forfeiture on at least two subsequent occasions
2
19 U.S.C. Sec. 1609 states:
(a) If no ... claim is filed or bond given within the twenty days hereinbefore specified, the appropriate customs officer shall declare the [property] forfeited, and shall sell the same at public auction....
(b) A declaration of forfeiture under this section shall have the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States....
3
Idowu's motion to dismiss--which, in this case, is a motion for judgment of acquittal--was filed in violation of Rule 29(c), which requires that such motions be made "within 7 days after the jury is discharged." At oral argument on appeal, all counsel indicated that the district court had effectively exercised its discretion to entertain the belated motion in light of the fact that Idowu had recently retained new counsel. Since we find this to be well within the district court's discretion, see United States v. Knox, 977 F.2d 815, 819 (3d Cir.1992), vacated on other grounds, --- U.S. ----, 114 S.Ct. 375, 126 L.Ed.2d 325 (1993), we address the merits of the defendant's appeal
4
The Double Jeopardy Clause states: "No person shall be ... subject for the same offense to be twice put in jeopardy of life or limb...." U.S. CONST. amend. V
5
The Eighth Amendment of the Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S. CONST. amend. VIII
21 U.S.C. Sec. 881(a)(4) provides for forfeiture of "[a]ll conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled substances, their raw materials and equipment used in their manufacture and distribution]."
21 U.S.C. Sec. 881(a)(7) provides for forfeiture of "[a]ll real property, including any right, title, and interest ... in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter."
6
It should be noted that in offering this new method of analysis, the Court stated that it did not mean to alter its position in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364, 104 S.Ct. 1099, 1105-06, 79 L.Ed.2d 361 (1984), "that the forfeiture of contraband itself may be characterized as remedial because it removes dangerous or illegal items from society." Austin, --- U.S. at ----, 113 S.Ct. at 2811
7
21 U.S.C. Sec. 881(a)(6) provides for forfeiture of "[a]ll moneys ... or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of this subchapter."
8
19 U.S.C. Secs. 1602-1621
9
See, e.g., 18 U.S.C. Sec. 981(d) and 21 U.S.C. Sec. 881(d)
10
The four categories are: (1) property of a value that does not exceed $500,000; (2) property whose importation is prohibited; (3) any vessel, vehicle, or aircraft used to import, export, transport or store illegal drugs; or (4) United States coins, currency or other "monetary instruments" such as traveler's checks. 19 U.S.C. Sec. 1607(a)
11
Idowu raises a third claim, arguing that she should not be subject to the ten-year mandatory minimum required by 21 U.S.C. Secs. 960(b)(1) and 841(b)(1)(A) because she is entitled to an exception from the minimum under 18 U.S.C. Sec. 3553(f). See also U.S.S.G. Sec. 5C1.2. Section 3553(f) permits a court to sentence a defendant to a term less than the statutory mandatory minimum under certain circumstances, but it still requires the court to impose a sentence within the applicable guidelines range. Because Idowu's sentence of 151 months was the lowest possible within the applicable guidelines range, Idowu's argument about the mandatory minimum is only relevant if the panel finds that the court placed her within the wrong guideline range by improperly denying her motion for a reduction pursuant to U.S.S.G. Sec. 3B1.2. Because we find that the district court properly denied Idowu's motion for an adjustment under Sec. 3B1.2, we need not address whether Idowu meets the Sec. 3553(f) criteria
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515 F.2d 502
Mendez-Santanav.Sec. of Defense of U. S.
74-1086
UNITED STATES COURT OF APPEALS First Circuit
1/20/75
1
D.P.R.
AFFIRMED
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NO. 07-01-0338-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
AUGUST 22, 2001
______________________________
IN RE: JOHANSON LEE WATSON, RELATOR
_________________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Pending before this court is the "Motion for Leave for Permission to File a Petition
for Writ of Mandamus" filed by Johanson Lee Watson, relator. Although the motion
purports to be a motion for leave to file a petition for writ of mandamus, the motion contains
a prayer for relief requesting this Court to "grant this petition for writ of mandamus."
Relator's motion was not accompanied by a petition for mandamus. Because relator's
motion requests that this Court grant his petition for mandamus, we construe relator's
motion to be a petition for mandamus. We deny the petition as it fails to meet the
requirements of an original proceeding pursuant to Texas Rule of Appellate Procedure
52.3. Relator failed to file a certified or sworn copy of the order complained of or any other
document showing the matter of which he complains. Tex. R. App. P. 52.3(j)(A).
Furthermore, the form referenced in Tex. R. App. P. 52.3(a) through (i) is required in an
original petition. Relator failed to follow rule 52.3 with regard to both form and content.
Accordingly, we deny relator's application for relief which he has entitled "Motion
for Leave for Permission to File a Petition for Mandamus."
Phil Johnson
Justice
Do not publish.
run concurrently. This appeal followed.
The record reflects that the State presented thirteen witnesses and eighteen exhibits
to show that appellant threatened Daidron Ray with imminent bodily injury by driving at him
with an automobile. The evidence also showed that on the same occasion appellant made
use of a folding, lock-blade knife or a large stick, or both weapons, (2) to threaten Willie Ray
with imminent bodily injury. Appellant's appointed appellate counsel has filed a motion to withdraw and a brief in
support pursuant to Anders v. California, 386 U.S. 738 (1967), in which he certifies that he
has diligently reviewed the record and, in his professional opinion, under the controlling
authorities and facts of the cases, there is no reversible error or legitimate grounds on which
a non-frivolous appeal can arguably be predicated. The brief discusses in detail the
procedural history of these two causes and the events at trial. Counsel also notes that a
potential issue on which error may lie is in the sufficiency of evidence supporting the jury's
verdict of guilt. Counsel has certified that a copy of the Anders brief and motion to withdraw
have been served on appellant, and that counsel has advised appellant of his right to review
the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645
(Tex.App.-Waco 1994, pet. ref'd).
By letter, this Court also notified appellant of his opportunity to submit a response to
the Anders brief and motion to withdraw filed by his counsel. Appellant filed a response
raising legal and factual sufficiency of the evidence to support his conviction as well as an
allegation that the trial court erred by not instructing the jury on the lesser-included offense
of simple assault. The State has not filed a brief.
In conformity with the standards set out by the United States Supreme Court, we will
not rule on the motion to withdraw until we have independently examined the record in each
matter. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). If this
Court determines either appeal has merit, we will remand it to the trial court for appointment
of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
As noted, appellate counsel points to one ground on which a meritorious argument
may lie on appeal. Specifically, counsel notes potential legal and factual insufficiency of the
evidence to support appellant's conviction in each cause. Appellant notes the same in his
response. (3) After a complete review of the record, however, we agree with appellate counsel
that the grounds identified do not arguably support an appeal.
Appellant's response points to conflicts in the testimony presented by various
witnesses. It is the province of the jury to resolve or reconcile conflicts in testimony, and the
jury is privileged to believe all, some or none of the testimony of any particular witness.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Washington v. State, 215
S.W.3d 551, 553 (Tex.App.-Texarkana 2007, no pet.).
Our review convinces us that appellate counsel conducted a complete review of
the record for each cause. We have also made independent examinations of the entire
record for each cause to determine whether there are any arguable grounds which might
support the appeals from appellant's convictions and sentences. We agree the records
present no meritorious grounds for review. Accordingly, we grant counsel's motion to
withdraw (4) and affirm the judgments of the trial court.
James T. Campbell
Justice
Do not publish.
1. The offenses were tried together in the trial court. Appellate counsel submitted a
single Anders brief addressing both causes. Appellant's response also addresses both
causes, and we address them together.
2. The indictment alleged appellant used or exhibited a knife and a stick. The court's
charge instructed the jury that it could find appellant guilty if it determined beyond a
reasonable doubt he used or exhibited a knife or a stick as a deadly weapon. See
Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991); Cowan v. State, 562
S.W.2d 236, 240 (Tex.Crim.App. 1981); Watkins v. State, 623 S.W.2d 954, 955
(Tex.App.-Dallas 1981, no pet.) (disjunctive charge of deadly weapon permitted despite
conjunctive language in indictment).
3. As noted, appellant's fifth point of error states that the trial court erred in denying
his request for an instruction with regard to the lesser-included offense of simple assault.
However, appellant does not address this issue in his response, and our review of the
record presents no arguably meritorious issue on this point.
4. Counsel shall, within five days after the opinion is handed down, send his client a
copy of the opinion and judgment, along with notification of the defendant's right to file a
pro se petition for discretionary review. Tex. R. App. P. 48.4.
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838 F.2d 41
Otis G. WEEKS, Jr., Petitioner-Appellant,v.J. Michael QUINLAN, Warden, Respondent-Appellee.
No. 1427, Docket 86-2027.
United States Court of Appeals,Second Circuit.
Argued Aug. 13, 1987.Decided Jan. 25, 1988.
1
Kevin McNulty, New York City (Paul, Weiss, Rifkind, Wharton & Garrison, of counsel), for petitioner-appellant.
2
Bernard W. Bell, New York City, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Nancy Kilson, Asst. U.S. Atty., of counsel), for respondent-appellee.
3
Before WINTER and MAHONEY, Circuit Judges, and RE, Chief Judge, United States Court of International Trade.*
4
RE, Chief Judge, Court of International Trade.
5
Otis G. Weeks, Jr., a prisoner at the Federal Correctional Institute in Otisville, New York, appeals from a judgment of the United States District Court for the Southern District of New York which denied his petition for a writ of habeas corpus. Weeks filed a habeas corpus petition seeking credit on his federal sentence for the 25 months that he served in state prison after federal authorities released him from federal prison to state authorities. The court held that, upon Weeks' conviction for narcotics possession with intent to distribute, in violation of his parole, the United States Parole Commission (the Parole Commission) was authorized under 18 U.S.C. Sec. 4210(b)(2) (1982), to deny Weeks credit for time served in state prison after his parole from federal custody to a state detainer pursuant to 28 C.F.R. Sec. 2.32(a)(1) (1977). Under section 4210 of the Parole Commission and Reorganization Act (the Parole Act), the Parole Commission may revoke the parole of any parolee convicted of a new offense punishable by imprisonment, and order that no credit be received for the time served after release on parole.
6
The question presented on this appeal is whether the district court erred in upholding the determination of the Parole Commission that a federal prisoner who was paroled to detaining state authorities to serve a state sentence, pursuant to 28 C.F.R. Sec. 2.32(a)(1), and subsequently violated his parole, can be denied credit on his federal sentence for the time he served in state prison, pursuant to 18 U.S.C. Sec. 4210(b)(2).
7
Since the court holds that "[p]arole to the actual physical custody of the detaining authorities only," pursuant to 28 C.F.R. Sec. 2.32(a)(1), is parole within the meaning of the Parole Commission and Reorganization Act, 18 U.S.C. Secs. 4201-4218, and that the Parole Commission was authorized to deny Weeks credit for the time served in state prison after his parole from federal prison, the decision of the district court is affirmed.
8
Weeks contends that his release from federal prison under 28 C.F.R. Sec. 2.32(a)(1), "to the actual physical custody of the detaining authorities only," does not constitute "parole" within the meaning of 18 U.S.C. Sec. 4210(b)(2). Weeks maintains that he was not paroled until he was released into the community, and, therefore, his federal sentence should be credited with the 25 months he served in state prison.
9
The respondent, Warden J. Michael Quinlan, contends that release from federal incarceration, pursuant to 28 C.F.R. Sec. 2.32(a)(1), constituted valid parole, and, therefore, Weeks cannot be credited for any time he served from his release from federal incarceration on March 24, 1978 to the time of his subsequent arrest.
Background
10
In April 1975, a Virginia state court sentenced Weeks to 18 months imprisonment for distribution of heroin, and 4 years for possession. In May 1975, Weeks was convicted in the United States District Court for the Eastern District of Virginia, of conspiracy to distribute heroin in violation of federal law, and was sentenced to 8 years imprisonment. The state sentence for possession was to run consecutively to the federal sentence, while the state sentence for distribution was to run concurrently with the federal term.
11
On October 18, 1977, Weeks received an initial parole hearing in which the examiner panel determined that Virginia had lodged a detainer against Weeks on the basis of his state narcotics convictions. A detainer is a request "to an imprisoning jurisdiction to detain a person upon his release so that another jurisdiction may prosecute or incarcerate him...." See Pitts v. North Carolina, 395 F.2d 182, 187 (4th Cir.1968). Hence, the state detainer directed the federal correctional officials to continue holding Weeks in custody pending state action. The panel concluded that, under its guidelines, Weeks should be paroled after serving between 36 and 48 months.
12
On March 24, 1978, after serving approximately 36 months of his federal sentence, Weeks was released pursuant to 28 C.F.R. Sec. 2.32(a)(1), to the custody of the state of Virginia. Under the Interstate Agreement on Detainers Act, the federal authorities were required to notify the state authorities of the forthcoming release of the prisoner. See 18 U.S.C. app. Sec. 2 (1976). Weeks served 25 months of his state sentence and was released from state prison in April 1980.
13
On January 18, 1983, Weeks was arrested in Virginia for possession of heroin with intent to distribute, and possession of marijuana. At the time of his arrest, Weeks was still on parole from federal custody. In June 1983 Weeks was convicted of both narcotics charges, and was sentenced by state authorities to 8 years imprisonment.
14
As a result of Weeks' conviction by the state, the United States Parole Commission, after appropriate administrative proceedings, revoked his parole, and determined that, pursuant to 18 U.S.C. Sec. 4210(b)(2), "the entire period of time of parole from the date of Mr. Weeks release [from] federal custody was to be forfeited," including the time he spent in state prison.
15
Weeks filed a petition for a writ of habeas corpus claiming that the time he spent in state prison was not time on parole, and, therefore, the Parole Commission could not deny him credit for that time. The petition was referred to Magistrate Dolinger, who, after a full briefing of the questions presented, issued a report recommending denial of the petition.
16
In the United States District Court for the Southern District of New York, Judge Edward Weinfeld, by a memorandum endorsement, adopted Magistrate Dolinger's recommendation to dismiss the habeas corpus petition. In rejecting the various arguments made by Weeks, Judge Weinfeld noted that once the detaining authority takes the prisoner into custody, the state may release him at any time, and concluded that since the "federal authorities no longer exercise[d] any control over the date of the parolee's release to the community, it would be inappropriate to treat the resulting state custody as a continuation of the federal confinement." Weeks v. Quinlan, No. 84 Civ. 3151, slip op. at 6 (S.D.N.Y. Nov. 24, 1985).
Discussion
17
It is a well-established principle of administrative law that due weight or deference should be accorded to an agency's interpretation of a statute that it is charged to administer. See, e.g., United States v. City of Fulton, 475 U.S. 657, 666, 106 S.Ct. 1422, 1428, 89 L.Ed.2d 661 (1986); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Regardless of the specific language used by the courts in giving weight or deference to the agency's interpretation of its statutory language, it is clear that the agency's interpretation should be followed "unless there are compelling indications that it is wrong." See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); see also Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985); Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982).
18
The United States Parole Commission was established by Congress to promulgate rules and regulations necessary to carry out a national parole policy, and to administer the Parole Act. See 18 U.S.C. Sec. 4203 (1982). Section 4203 of Title 18 of the United States Code provides in pertinent part:
19
(a) The Commission ... shall--
20
(1) promulgate rules and regulations establishing guidelines for the powers enumerated in subsection (b) of this section and such other rules and regulations as are necessary to carry out a national parole policy and the purposes of this chapter;
21
....
22
(b) The Commission, by majority vote, and pursuant to the procedures set out in this chapter, shall have the power to--
23
(1) grant or deny an application or recommendation to parole any eligible prisoner;
24
(2) impose reasonable conditions on an order granting parole;
25
(3) modify or revoke an order paroling any eligible prisoner;
26
....
27
18 U.S.C. Sec. 4203(a), (b) (1982).
28
In reviewing an agency's interpretation of the statute which it administers, the court must determine whether Congress has "directly addressed the precise question at issue...." See Chevron U.S.A. Inc., 467 U.S. at 843, 104 S.Ct. at 2782. If Congress has addressed the issue, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. The cases teach that an agency's interpretation of a statute need not be the only reasonable one, or even the one the court would have adopted if the question had initially arisen in a judicial proceeding. See id. at 843 n. 11, 104 S.Ct. at 2782 n. 11; Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981). Indeed, for the agency interpretation to be accepted, it need only be shown that it is "sufficiently reasonable." See Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. at 39, 102 S.Ct. at 46.
29
On this appeal, to resolve the question presented, the court must determine whether parole to a state detainer, under 28 C.F.R. Sec. 2.32(a)(1), is parole within the meaning of the Parole Commission and Reorganization Act, 18 U.S.C. Secs. 4201-4218. It is axiomatic that "the starting point for interpreting a statute is the language of the statute itself." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).
30
Section 4210 of Title 18 of the United States Code provides, in pertinent part:
31
(b) Except as otherwise provided in this section, the jurisdiction of the Commission over the parolee shall terminate no later than the date of the expiration of the maximum term or terms for which he was sentenced, except that--
32
* * *
33
(2) in the case of a parolee who has been convicted of a Federal, State, or local crime committed subsequent to his release on parole, and such crime is punishable by a term of imprisonment, detention or incarceration in any penal facility, the Commission shall determine, in accordance with the provisions of section 4214(b) or (c), whether all or any part of the unexpired term being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense, but in no case shall such service together with such time as the parolee has previously served in connection with the offense for which he was paroled, be longer than the maximum term for which he was sentenced in connection with such offense.
34
18 U.S.C. Sec. 4210(b)(2) (1982). In essence, under the provisions of 18 U.S.C. Sec. 4210(b)(2), the Parole Commission may revoke the parole of any parolee convicted of a new offense punishable by imprisonment, and may order that no credit be received for time served after the date of release on parole. The statutory language, however, is not dispositive, since nowhere in the Parole Act does Congress define the term "parole." Nevertheless, under the Parole Act, the Parole Commission is given broad latitude to define the conditions of parole and to implement the parole statutes. Hence, its construction of the term "parole," as encompassing "parole to the actual physical custody of the detaining authorities only," should be given due deference.
35
Section 2.32 of the Parole Commission's regulations governs the parole of federal prisoners against whom detainers have been lodged by state authorities. 28 C.F.R. Sec. 2.32 (1977). This section provides for two types of parole as follows:
36
Sec. 2.32 Parole to local or immigration detainers.
37
(a) When a state or local detainer is outstanding against a prisoner whom the Commission wishes to parole, the Commission may order either of the following:
38
(1) "Parole to the actual physical custody of the detaining authorities only." In this event, release is not to be effected except to the detainer. When such a detainer is withdrawn, the prisoner is not to be released unless and until the Commission makes a new order of parole.
39
(2) "Parole to the actual physical custody of the detaining authorities or an approved plan." In this event, release is to be effected even though the detainer might be withdrawn, providing there is an acceptable plan for community supervision.
40
28 C.F.R. Sec. 2.32(a)(1), (2) (1977).
41
Weeks contends that, pursuant to 28 C.F.R. Sec. 2.32(a)(1), parole by order of the Parole Commission is not parole at all, but merely a continuation of federal confinement, because "parole" implies a decision to release an inmate to the community. He maintains that while release pursuant to section 2.32(a)(2) constitutes parole, release pursuant to section 2.32(a)(1) does not. Under section 2.32(a)(2) a federal prisoner is paroled to a state detainer, but release is to be effected to the community if the state officials withdraw their detainer or make no effort to assume custody of the prisoner. Under section 2.32(a)(1), however, if the state authorities withdraw their detainer, the prisoner must be returned to federal prison, and is not to be released until the Parole Commission makes a new order of parole. Hence, Weeks contends that parole pursuant to section 2.32(a)(1) is merely a transfer from federal prison to state prison.
42
In support of this interpretation of 28 C.F.R. Sec. 2.32(a)(1), Weeks cites Garafola v. Wilkinson, 721 F.2d 420 (3d Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1681, 80 L.Ed.2d 155 (1984). In that case, a parole violator was denied credit for time served in state prison, pursuant to a detainer. The court held that "a 'parole to a state detainer' made pursuant to section 2.32(a)(2) of the Parole Commission's regulations ... is a 'parole' within the meaning of the Parole Act." Id. at 421. The court reasoned that parole included release to another prison authority because the Parole Commission still applied the appropriate federal criteria in determining whether a prisoner was entitled to parole. Id. at 424.
43
In Garafola, the court observed that, "if Garafola had in fact been paroled pursuant to Sec. 2.32(a)(1), it would present a very different case than a parole pursuant to Sec. 2.32(a)(2)." Id. at 425 n. 11. Weeks relies on this dictum from the Garafola case to show that the revocation of credit for state prison time is appropriate under section 2.32(a)(2), but not under (a)(1).
44
The court, in Garafola, however, did not consider whether parole could be interpreted as including release to a state detainer pursuant to section 2.32(a)(1), but rather, considered release pursuant to section 2.32(a)(2). Moreover, the court did not explain how parole under section 2.32(a)(1) would differ from parole under section 2.32(a)(2). Hence, the court's reference to section 2.32(a)(1) is dictum which we do not find persuasive in the case presently before the court.
45
The difference in the subsections of the regulation indicates that, although prisoners may be paroled from federal prison, release to the community may be appropriate for some, while further incarceration in state prison is necessary for others. Respondent, Warden Quinlan, contends that, in either case, the Parole Commission's determination to release a prisoner to a state detainer is nevertheless parole because under the Parole Commission and Reorganization Act parole "is designed to release an inmate only from his obligation to serve his federal sentence; the states, independent sovereigns, control the obligation to serve state sentences." In sum, respondent maintains that "the crucial aspect of federal parole is not release into the community, but release from the federal obligation to serve time in prison."
46
In this case, when the federal authorities released Weeks to the state prison, they effectively relinquished all control over him. The moment that the state assumed physical control of Weeks, it was the state, as a separate sovereign, that had the power to decide the ultimate date of his release. See United States ex rel. Stanbridge v. Quinlan, 595 F.Supp. 1145, 1150 (S.D.N.Y.1984). Thus, since the federal authorities no longer exercised any control over Weeks' imprisonment, the subsequent confinement in a state prison cannot be considered a continuation of federal confinement.
47
Although Weeks concedes that release to a state detainer under section 2.32(a)(2) constitutes a valid parole, he contends that parole under section 2.32(a)(1) is not parole. See, e.g., Garafola, 721 F.2d at 424-25; Clay v. Henderson, 524 F.2d 921, 923 (5th Cir.1975), cert. denied, 425 U.S. 995, 96 S.Ct. 2210, 48 L.Ed.2d 820 (1976); United States ex rel. Stanbridge v. Quinlan, 595 F.Supp. 1145, 1150 (S.D.N.Y.1984). Hence, Weeks urges that the court make a distinction between sections 2.32(a)(1) and (a)(2). This distinction, however, would allow a prisoner, who was released to a state detainer under section 2.32(a)(1), and subsequently violated parole, to receive credit for the time he served in state prison, while a prisoner released under section 2.32(a)(2), would forfeit the time served in state prison. No reasonable basis has been given for this distinction.
48
Parole under either section constitutes a decision on the part of the Parole Commission that the inmate has satisfied the federal criteria for parole eligibility, and should be released to the authority of the state. Thus, the essence of parole is release from an obligation to serve time in prison, and parole pursuant to section 2.32(a)(1) is a release that accomplishes that purpose.
49
"The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Chevron U.S.A. Inc., 467 U.S. at 843, 104 S.Ct. at 2782 (quoting Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974)). Although a court may reject an agency interpretation that contravenes clearly discernible legislative intent, if Congress has implicitly left a gap for the agency to fill, a court may not substitute its own interpretation of a statutory provision for a reasonable interpretation made by the administrative agency. See Chevron U.S.A. Inc., 467 U.S. at 843-44, 104 S.Ct. at 2782.
50
There is nothing in the legislative history of the Parole Act to suggest that a prisoner who is paroled to the custody of state prison authorities is not on parole, or that parole violators should receive federal parole credit for time served in state prison. Indeed, the regulations of the United States Parole Board, which were in effect when the Parole Act was passed, included a provision, similar to section 2.32(a)(1), that provided for "parole of prisoner subject to local detainer." See 28 C.F.R. Sec. 2.9 (1962). Congress, however, has taken no action either to prohibit this form of parole, or to prohibit the Parole Commission from adhering to its interpretation of "parole."
51
Moreover, Weeks' interpretation of parole would undermine or frustrate the release policy effectuated by section 2.32(a)(1), and would work to the disadvantage of many prisoners facing dual sentences. By paroling prisoners on the condition that they serve a further period in state prison, the Parole Commission permits prisoners to fulfill their state obligations at an earlier date than if the federal authorities had kept them in federal prison until it was determined that they were ready to be released under section 2.32(a)(2). The Commission may release federal prisoners at an earlier date only if it is certain they will not be released into the community, should the state authorities fail to accept custody of the prisoners by withdrawing their detainer.
52
Weeks could have been required to serve his full federal sentence before being released to start serving his state sentence. By paroling Weeks in 1978 under section 2.32(a)(1), the Parole Commission enabled him to begin serving his state sentence 12 months before the previously determined parole date. To allow Weeks to deny or repudiate that benefit now would do violence to the purpose and intent of the Parole Act.
53
Under section 4203 of Title 18 of the United States Code, Congress has implicitly delegated to the Parole Commission the legislative authority to define the terms and conditions of parole. Since the Parole Commission's construction of the term "parole," as encompassing "parole to the actual physical custody of the detaining authorities only," is reasonable and consistent with the policy and purpose of the Parole Act, that interpretation is sustained.
Conclusion
54
In light of the language of the Parole Commission and Reorganization Act, and the congressional intent to delegate to the Parole Commission the authority to administer a national parole policy, the court holds that Weeks' release under 28 C.F.R. Sec. 2.32(a)(1) was a valid parole. Hence, the Parole Commission was authorized under 18 U.S.C. Sec. 4210(b)(2) to deny Weeks credit for time served in state confinement after his release from federal prison. The judgment of the district court is affirmed.
*
Sitting by designation pursuant to 28 U.S.C. Sec. 293(a) (1982)
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Case: 13-11401 Document: 00512775078 Page: 1 Date Filed: 09/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11401 FILED
Summary Calendar September 19, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRANDON DEMOND FEARANCE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-140
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Brandon Demond Fearance appeals the 180-month
sentence imposed following his conviction for possession of a firearm
subsequent to a felony conviction. Fearance was sentenced pursuant to the
provisions of the Armed Career Criminal Act (ACCA) based on Texas
convictions for burglary of a habitation and possession with the intent to
deliver cocaine.
* 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: 13-11401 Document: 00512775078 Page: 2 Date Filed: 09/19/2014
No. 13-11401
Fearance contends that his Texas burglary conviction does not qualify as
a violent felony under the ACCA because the Texas burglary statute
criminalizing burglary of a dwelling is not divisible and includes conduct that
does not constitute a violent felony under the ACCA. Further, he asserts that
his judicial confession is insufficient to narrow the offense to a qualifying form
of burglary.
We review de novo the district court’s “legal conclusions underlying the
district court’s application of the ACCA.” United States v. Fuller, 453 F.3d 274,
278 (5th Cir. 2006). The ACCA subjects a defendant convicted under 18 U.S.C.
§ 922(g) to a minimum sentence of 15 years if he has three prior convictions for
“a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. § 924(e)(1).
After Fearance filed his initial brief, we issued an opinion in United
States v. Conde-Castaneda, 753 F.3d 172, 176-78 (5th Cir. 2014), wherein we
held that TEXAS PENAL CODE ANN. § 30.02 is divisible and that a written
judicial confession containing an admission to two types of burglary proscribed
in the Texas statute, specifically § 30.02(a)(1) and § 30.02(a)(3), is sufficient to
establish that the defendant was convicted of both offenses. Fearance’s written
judicial confession contained an admission to both § 30.02(a)(1) and
§ 30.02(a)(3). Because § 30.02(a)(1) qualifies as a violent felony under the
ACCA, the district court did not err in ruling that Fearance’s prior Texas
conviction for burglary of a habitation was a violent felony under the ACCA.
See Conde-Castaneda, 753 F.3d at 176; United States v. Silva, 957 F.2d 157,
162 (5th Cir. 1992). In his reply brief, Fearance concedes that this court’s
decision in Conde-Castaneda forecloses his challenge to the classification of his
prior burglary conviction as a violent felony.
2
Case: 13-11401 Document: 00512775078 Page: 3 Date Filed: 09/19/2014
No. 13-11401
As for his Texas convictions for possession with the intent to deliver
cocaine, as proscribed by TEXAS HEALTH & SAFETY CODE § 481.112(a),
Fearance asserts that they are not “serious drug offenses” within the meaning
of the ACCA. In light of our holding in United States v. Vickers, 540 F.3d 356,
366 (5th Cir. 2008), the district court did not err in ruling that Fearance’s
Texas convictions under § 481.112 were serious drug offenses for purposes of
the ACCA.
Finally, Fearance seeks remand to allow the district court to impose a
sentence below the statutory minimum, arguing that the district court wished
to give him credit for time served before the imposition of his sentence but
mistakenly believed it could not reduce the term in the judgment below the
mandatory minimum provided by the statute. He cites no authority to
establish any error by the district court in failing to impose a sentence below
the mandatory minimum. As Fearance cannot show any error in the
imposition of his sentence, he has no basis for urging that his case should be
remanded for resentencing.
The judgment of the district court is AFFIRMED.
3
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35 Cal.App.2d 428 (1939)
HARRY DAVIS, Respondent,
v.
STATE BOARD OF OPTOMETRY et al., Appellants.
Civ. No. 11875.
California Court of Appeals. Second Appellate District, Division One.
November 10, 1939.
U.S. Webb, Attorney-General, and Bayard Rhone, Deputy Attorney-General, for Appellants.
Morris Abraham and Frank S. Hutton for Respondent.
Doran, J.
In a petition for a writ of mandate filed in the superior court the petitioner, Harry Davis, sought a writ to compel the defendants, the State Board of Optometry of the State of California, and three members thereof, to *429 restore his license which had been revoked as the result of a hearing conducted under the provisions of the Optometry Law (Stats. 1913, chap. 598, as amended; Act 5668 of Deering's General Laws of California). Issues being joined, the matter was submitted for decision in the superior court upon the pleadings, which contained the complaint and decision of the board, as well as the reporter's transcript of all of the testimony taken at the hearing, and all exhibits introduced. No other testimony of any nature was presented.
Defendants are appealing from the judgment granting the writ, and from the order denying their motion for a new trial.
The record reveals that a complaint was filed with the board by an investigator of the State Board of Optometry, charging the respondent herein, a registered optometrist, with unprofessional conduct as defined in subdivision 3 of section 11 of the Optometry Law. The first charge accused respondent with advertising in various newspapers in which untruthful statements were alleged to have been made in the advertising of optical business or treatment. The second charge accused respondent of obtaining from certain named persons various designated amounts, by reason of the untrue statements appearing in the advertisements. The board found that the first charge was true, and that a portion of the second charge was true, and thereupon ordered that the certificate of registration theretofore issued to respondent be revoked.
The advertisements which, it was charged, were placed by respondent in the various newspapers, related to the sale of white, single vision lenses, including examination and rimless mounting or frames, for $7.50. A so-called "typical" advertisement, which appeared in a Los Angeles newspaper on April 18, 1937, was introduced into evidence at the hearing and read as follows:
"It is NOT necessary TO PAY more for your GLASSES"
"These Beautiful Rimless GLASSES Complete $7.50"
"This price includes expert examination by eye-sight specialist, any single-vision lenses your eyes require and choice white gold filled rimless mounting or frame. "formerly DAVIS OPTICAL CO. Now *430
IDEAL OPTICAL CO.
"Los Angeles 551 Broadway"
"Long Beach 144 Pine Ave."
"Alhambra Main and Garfield at Sontag Drug Store."
It appears that there is in existence a corporation known as the Davis Optical Company (hereinafter referred to as the Davis company), owned by the respondent and his wife. This corporation, according to the testimony of respondent, owns all of the equipment of the Ideal Optical Company (hereinafter referred to as the Ideal company), at the three stores listed in the advertisement hereinbefore quoted. The Davis company had been in the business of manufacturing and dispensing glasses prior to the formation, in April of 1937, of the Ideal company. With the formation of the latter company no tangible property was transferred by the Davis company, but "just the right to do business". The Davis Optical Company and the Ideal Optical Company shared offices on the same floor and at the same address in Los Angeles. The Davis company leased the equipment, and subleased the premises at the three stores, to the Ideal company for 20 per cent of the gross retail business done. However, none of this 20 per cent for the rental had been paid from the time the Ideal company was formed until the petitioner testified before the board on June 25, 1937. Appellants argue that the evidence reveals the Davis Optical Company and the Ideal Optical Company to be merely the alter ego of respondent.
Briefly, the evidence of alleged misconduct on the part of petitioner was based upon the testimony of one William Meikle, an United States customs inspector at San Pedro, California, a disinterested witness who answered the advertisement, as well as the testimony of four individuals who visited the business establishments of petitioner, in part in response to the advertisement. The respondent disputed the effect of the evidence and denied any connection with the Ideal Optical Company. Thus upon conflicting evidence the board found, in effect, that it was true as alleged in the complaint that Harry Davis was guilty of unprofessional conduct in that he had advertised, or caused to be advertised, in various newspapers, "optical business and treatment in which untruthful statements were made in each and every one of said advertisements, in that in each of said advertisements *431 said Harry Davis offered for sale complete glasses containing any white single vision lenses and including frames and examinations for $7.50, and also containing the statement 'It is not necessary to pay more for your glasses'; that said statement was untrue in that the said Harry Davis did consistently fail, refuse and neglect to sell or furnish complete glasses containing white single vision lenses and including frames and examinations for the sum of $7.50, to persons answering said advertisements."
Appellants contend on appeal that the Ideal Optical Company is the alter ego of the respondent herein; that the evidence is sufficient to warrant the Board of Optometry in finding that the petitioner was guilty of unprofessional conduct; and that the trial court erred in failing to make findings of fact.
With regard to the last-mentioned contention, respondent urges that, "The sole question before the trial court was: Was the record upon which the Optometry Board made its findings and order, legally sufficient to justify the holding of the petitioner guilty of unprofessional conduct? The judgment of the court was that the evidence before the Board was legally insufficient to justify an order of revocation of the license of the petitioner and it accordingly ordered a peremptory writ to issue. There was no other order before the court. The issue before the court was a legal issue and not a factual one."
The judgment of the trial court, in part, was as follows: "... and evidence having been introduced and argument on the facts as well as the law having been made by counsel representing each of the above entitled parties, and the cause having been submitted to the Court for decision, and good cause appearing therefor,"
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment be rendered for the petitioner and against the" defendants "as follows: 1. That a peremptory writ of mandate issue in favor of the petitioner and against the" defendants "and each of them as follows ..."
The writ ordered the board to rescind and set aside its order, and to restore to petitioner his certificate to practice optometry.
[1] It should be noted, as pointed out by appellants, that the court made no findings of fact or conclusions of law. It *432 is evident, however, from the judgment as recited above, that the trial court after reviewing the transcript of the evidence adduced at the hearing before the board substituted its judgment and discretion for the judgment and discretion of the board.
Section 11 of the Optometry Act (Act 5668 of Deering's Gen. Laws of Cal.), reads as follows:
"Grounds for revoking certificates. Unprofessional conduct. The certificate of registration of any person registered as provided for in this act, may be revoked or suspended for a fixed period by the said board of optometry for any of the following causes: ..."
"3. For unprofessional conduct ... Unprofessional conduct shall mean ... the obtaining of any fee by fraud or misrepresentation; ... the advertising of optical business or treatment or advice in which untruthful, improbable or impossible statements are made."
Although the law unequivocally confers upon the board jurisdiction to determine the questions likely to arise as a result of the above-quoted provisions of the act, and although there may have been sufficient evidence in the record to support the conclusions reached by the board, nevertheless in the circumstances the court has the power to hear and determine the same questions. (Drummey v. State Board of Funeral Directors and Embalmers, 13 Cal.2d 75 [87 PaCal.2d 848].)
In the Drummey case, which presented an analogous situation, the court declared: "After considering the various possibilities, we can see no escape from the conclusion that in such a proceeding the court to which the application for mandate is made must weigh the evidence, and exercise its independent judgment on the facts, as well as on the law, if the complaining party is to be accorded his constitutional rights under the state and federal constitutions. ..."
"We think the limitations on the rule that the court must exercise its independent judgment on the facts in such cases, suggested by the United States Supreme Court in the St. Joseph Stock Yards case (St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 [56 S.Ct. 720, 80 L.Ed. 1033]), are sound. The findings of a board where formal hearings are held should and do come before the courts with a strong presumption in their favor based primarily on *433 the disputable presumption contained in section 1963, sub-section 15 of the Code of Civil Procedure 'That official duty has been regularly performed.' Obviously, considerable weight should be given to the findings of experienced administrative bodies made after a full and formal hearing, especially in cases involving technical and scientific evidence. Another limitation on the rule also suggests itself. Normally applications for such writs should be filed in the trial courts, whose normal function it is to determine and ascertain controverted issues of fact." (Drummey v. State Board of Funeral Directors and Embalmers, supra, pp. 84, 86.)
It is respondent's contention that "The only material questions raised by the answer were questions of law, and the case was tried upon the theory that only a question of law was at issue. If the respondent and the appellant Board had entered into a stipulation that the facts upon which petitioner's claim rested were as set forth in the transcript of the proceedings before the Board, and that the case should be submitted on the record so made, we would have had a case submitted upon a stipulation of facts, and in that case no findings would have been necessary." Wixom v. Davis, 198 Cal. 641 [246 P. 1041], and Gregory v. Gregory, 102 Cal. 50 [36 P. 364], are relied upon in support of this contention.
It is further contended by respondent that "Even if it can be said that there was no agreed statement of facts, it nevertheless clearly appears that there was no dispute in the facts, and that being so, it left to the court the sole function of drawing its conclusions of law therefrom, and findings were therefore not necessary. We before pointed out that the only duty resting upon the trial court was to determine from the agreed record whether or not the Optometry Board's action was correct and within its jurisdiction. The trial court being of the opinion, upon the undisputed facts, that the Optometry Board exceeded its jurisdiction and that there was not sufficient or any evidence to sustain its findings, ordered the issuance of the writ. This was proper."
[2] Although the parties apparently agreed to submit the issues upon the evidence adduced at the hearing before the board, nevertheless, under the circumstances, the court was bound to determine the questions of fact involved and *434 necessarily to pass judgment upon the value and effect of the evidence presented. Findings, therefore, were necessary, indeed indispensable unless waived. The record reveals that the findings were not waived. The parties submitted the issues upon an agreed record of the evidence; it was the trial court's duty to find as to the effect of such evidence and in that connection make the necessary findings. (Sec. 632, Code Civ. Proc.; Williams v. Wren, 88 Cal.App. 607 [263 P. 1038]; Black v. Board of Police Commrs., 17 Cal.App. 310, 313 [119 P. 674]; Taylor v. Taylor, 192 Cal. 71, 80 [218 P. 756, 51 A.L.R. 1074].) This the trial court failed to do, which was error.
For the last-mentioned reason the judgment is reversed and the cause remanded for a new trial. The appeal from the order denying a new trial is dismissed.
York, P. J., and White, J., concurred.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
PD-0077-05
THE STATE OF TEXAS
v.
RICHARD RAYMOND DIXON, II, Appellee
On Discretionary Review of Case 06-03-00217-CR of the
Sixth Court of Appeals
Lamar County
Womack, J., filed a dissenting opinion, in which Keller, P.J., and Keasler, J., joined.
As the Court's opinion points out, ante at 6-7, the Court of Appeals' opinion fell into the
ditch by attributing more importance to the issue of the officers' delay in stopping the appellant
than the record will bear. I fear that this Court's opinion may be running into the ditch on the
other side of the road.
As the Court's opinion says, ante at 5, we should "give almost total deference to a trial
court's express or implied determination of historical facts and review de novo the trial court's
application of the law
to those facts."
I agree with the Court's statement, ante at 8: "The trial judge made it clear that he
believed the turns made by appellee were lawful, so no traffic violation was committed and the
stop was not valid." That belief was expressly stated at the beginning of the trial court's Finding
of Fact and Conclusion of Law Number 7, ante at 3: "The right hand turn and the left hand turn
were lawful turns
."
The problem, with which this Court's opinion does not deal, is that we cannot tell
whether the trial judge's belief was a finding of fact, to which we owe almost total deference, or
a conclusion of law, to which we owe none.
If Number 7 was a finding of fact that the turns were legal because the appellee did signal
his intention to turn each time, we are bound to accept that finding. But is it not remarkable that
the word "signal" appears nowhere in the findings of fact and conclusions of law?
Is the Court overlooking the significance of the rest of the words in Number 7? "The
right hand turn and the left hand turn were lawful turns from designated turn lanes that allowed
those lanes to be used for turn only." Do those words not suggest that the trial court concluded,
as a matter of law, that a driver may turn from a dedicated turn lane without signaling? Such a
conclusion would be reviewed de novo.
Are not the trial court's oral statements more consistent with a conclusion of law than a
finding that the officers were lying about the absence of turn signals? The judge said (see ante at
7):
Even though they may be testifying they stopped him for a traffic offense, the
court's not bound by that. I don't care what they say they stopped him for. If I find
there was an legal [illegal?] basis for it, I think that's what I have to make my
ruling on. It seems to me that the traffic stop, if the facts you recite are correct and
he made two turns from dedicated turn lanes on the light, I would not think there
was any valid traffic stop.
I have inserted the word "illegal" in the third sentence because it seems more likely to be what
the judge said, in light of the fourth sentence. And the fourth sentence is consistent with a
conclusion of law about the requirement to signal from a dedicated turn lane, and inconsistent
with a finding of fact that the appellant did signal.
The case well could turn on a conclusion of law, not a finding of fact. The question could
be resolved easily by a remand to the trial court.
I respectfully dissent.
Filed February 15, 2006.
Publish.
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793 So.2d 906 (2001)
Charles L. BRYANT, Petitioner,
v.
STATE of Florida, Respondent.
No. SC00-933.
Supreme Court of Florida.
August 23, 2001.
*907 Bennett H. Brummer, Public Defender, and Rosa C. Figarola and Valerie Jonas, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
Robert A. Butterworth, Attorney General, Michael J. Neimand, Chief, Criminal Law, and Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, FL, for Respondent.
PER CURIAM.
We have for review Bryant v. State, 752 So.2d 725 (Fla. 3d DCA 2000), a per curiam decision of the Third District Court of Appeal citing as controlling authority its prior opinions in Weiss v. State, 720 So.2d 1113 (Fla. 3d DCA 1998), approved, 761 So.2d 318 (Fla.2000); and Jordan v. State, 728 So.2d 748 (Fla. 3d DCA 1998), approved, 761 So.2d 320 (Fla.2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).
The issue in this case involves the trial court's failure to comply with the statutory requirement to file written reasons for imposing an upward departure sentence. In Maddox v. State, 760 So.2d 89, 106-08 (Fla.2000), we determined that a trial court's failure to file written reasons justifying the imposition of a departure sentence constituted fundamental error that could be corrected on direct appeal for those appeals that fell within the window period.[1]See also Edmondson v. State, 771 So.2d 1136, 1136 (Fla.2000). Accordingly, we quash the decision below and remand for further proceedings consistent with this opinion.[2]
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur.
NOTES
[1] As this Court noted in Collins v. State, 766 So.2d 1009, 1009 n. 1 (Fla.2000): "Our decision in Maddox was expressly limited to those appeals falling in the window period between the enactment of section 924.051(3), Florida Statutes (Supp.1996), part of the Criminal Appeals Reform Act of 1996, and the enactment of our recent procedural rules in Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.1999), reh'g granted, 761 So.2d at 1025." Bryant's appeal, filed December 29, 1998, falls within this window period.
[2] We decline to address the other issue raised by Bryant that is not the basis of our jurisdiction. See Collins, 766 So.2d at 1010 n. 3 (citing Wood v. State, 750 So.2d 592, 595 n. 3 (Fla.1999)); Thogode v. State, 763 So.2d 281, 282 n. 2 (Fla.2000).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4371
EVARISTO PAZ-ZAMORA,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-00-406)
Submitted: October 4, 2001
Decided: October 16, 2001
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina. Ben-
jamin H. White, Jr., United States Attorney, Arnold L. Husser, Assis-
tant United States Attorney, Greensboro, North Carolina, for
Appellee.
2 UNITED STATES v. PAZ-ZAMORA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Evaristo Paz-Zamora appeals the sentence imposed following his
guilty plea to unlawful re-entry after deportation by an alien who had
previously been convicted of an aggravated felony in violation of 8
U.S.C.A. §§ 1326(a), (b)(1)(West 1999). Paz-Zamora’s attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967). Counsel states there are no meritorious issues for appeal, but
contends on Paz-Zamora’s behalf that the district court erred in sen-
tencing Paz-Zamora to ninety months’ imprisonment, which was
within the guidelines range of seventy-seven to ninety-six months.
Paz-Zamora was informed of his right to file a pro se supplemental
brief but has not done so.
As Paz-Zamora presents no challenge to the calculation of the
guidelines range but merely contends his sentence was too high
within the correct range, we find he is not entitled to appellate review
on his claim. See United States v. Jones, 18 F.3d 1145, 1150-51 (4th
Cir. 1994); United States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990).
In addition, we have examined the entire record in this case in accor-
dance with the requirements of Anders and find no meritorious issues
for appeal. We therefore affirm Paz-Zamora’s conviction and sen-
tence.
This court requires counsel to inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests a petition be filed, but counsel believes
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on the client. Finally, we
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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970 F.2d 227
36 Fed. R. Evid. Serv. 633
UNITED STATES of America, Plaintiff-Appellee,v.David HUGHES, also known as Jesse Ellebee, AtilanoVelasquez, and Martin Leanos, Defendants-Appellants.
Nos. 91-1004, 91-1038 and 91-1233.
United States Court of Appeals,Seventh Circuit.
Argued April 8, 1992.Decided July 16, 1992.As Amended July 22, 1992.
Daniel C. Murray, Asst. U.S. Atty., Ramune R. Kelecius (argued), Office of U.S. Atty., Crim. Div., Chicago, Ill., for U.S., in No. 91-1223.
Adam Bourgeois, Chicago, Ill. (argued), for defendant-appellant Martin Leanos.
Ramune R. Kelecius (argued), Office of U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for U.S. in Nos. 91-1038 and 91-1004.
Joseph R. Lopez, Chicago, Ill. (argued), for defendant-appellant Atilano Velasquez.
Richard S. Kling, Chicago-Kent College of Law, Chicago, Ill. (argued), for defendant-appellant David Hughes.
Before CUMMINGS and CUDAHY, Circuit Judges, and DILLIN, District Judge.*
CUMMINGS, Circuit Judge.
1
This case stems from a lengthy undercover operation conducted by agents of the Federal Bureau of Investigation ("FBI") into a large heroin, cocaine, and marijuana distribution ring led by Victor Velasquez that operated from about June 1988 until the end of August 1989 out of the second floor apartment above the El Chubasco Bar, located at 831 North Ashland Avenue in Chicago. The investigation included: 1) electronic recording of in-person as well as telephone conversations at the El Chubasco building; 2) the installation of audio and video recording equipment and a transmitter in a hotel room at the Quality Inn just west of downtown Chicago; and 3) the use of Jose Lopez, a confidential informant, who arranged numerous drug deals with Victor Velasquez. A warrant to search the El Chubasco was issued on August 29, 1989. Twenty-three defendants were subsequently charged in a 124-count indictment with a narcotics distribution conspiracy and other narcotics offenses. 21 U.S.C. §§ 841(a)(1), 843(b), 845(a), 846, 848, and 18 U.S.C. §§ 2, 924(c). On this appeal, three of the defendants raise challenges to their convictions or sentences. We affirm.
DAVID HUGHES
2
David Hughes, a.k.a. Jesse Ellebee, was charged with 16 counts of controlled substance offenses. In Count Two he was charged with knowingly and intentionally conspiring 1) to possess with intent to distribute heroin, cocaine, and marijuana, and 2) to use telephones in furtherance of the conspiracy. 21 U.S.C. §§ 841(a)(1), 843(b), and 846 and 18 U.S.C. § 2. In Counts 96-100, 102-104, 107-108, 110, 112, and 118-120, he was charged with using a telephone in connection with conspiracy to possess and distribute controlled substances. 21 U.S.C. § 843(b). At trial, the government called four FBI agents to testify and presented the tapes of drug-related meetings and intercepted telephone conversations as well as evidence recovered during the raid of the El Chubasco building. The government's case was that Hughes served as Victor Velasquez's drug deal negotiator, order-taker and messenger, supplier of narcotics, drug courier, bookkeeper of drug ledgers, and broker and that, in addition, Hughes was a mixer and a fixer1 as well as a dealer running his own drug distribution network from the El Chubasco.
3
The theory of the defense was that Hughes was not a drug dealer, but rather a heroin addict who did handyman work for Victor Velasquez in exchange for heroin, and that any involvement on his part in the alleged conspiracy was limited to an attempt to secure drugs for his own personal consumption. The defense called three witnesses who testified that Hughes was a heroin addict: Riley Jones, a drug abuse counselor who was called as an expert; Joyce Edmonds, Hughes' sister; and Barbara Nunnery, Hughes' girlfriend and the mother of his two children.
4
The jury returned a verdict of guilty on all counts. Hughes was sentenced to 262 months in prison on Count Two with concurring sentences of 48 months on the 15 remaining telephone counts. Hughes appeals his conviction, arguing that the jury was not selected in conformity with Batson v. Kentucky and that his due process rights were violated when the district court made two evidentiary rulings that precluded him from presenting his defense.
A. Jury Selection
5
Hughes, who is black, argues that the government exercised its peremptory challenges to exclude two black prospective jurors in violation of the dictates of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, and asks us to remand this case for a new trial. Batson held that the Equal Protection Clause of the Fourteenth Amendment prohibits the state from exercising its peremptory challenges to exclude blacks from the petit jury. Id. at 85, 106 S.Ct. at 1716. This prohibition extends to the federal government through the Due Process Clause of the Fifth Amendment. United States v. Williams, 934 F.2d 847, 849 n. 1 (7th Cir.1991). It is the defendant who ultimately bears the burden of establishing a discriminatory animus on the part of the prosecution. Hernandez v. New York, --- U.S. ----, 111 S.Ct. 1859, 1873, 114 L.Ed.2d 395 (1991) (O'Connor, J., concurring).
6
The Supreme Court has set forth an evidentiary framework to aid the trial court in determining whether the use of peremptory challenges rises to a constitutional violation. "The defendant * * * makes a prima facie case of purposeful discrimination in the selection of the petit jury by presenting facts and relevant circumstances that raise an inference that the government used the peremptory challenges in order to exclude venire members because of their race." United States v. Nichols, 937 F.2d 1257, 1262 (7th Cir.1991), certiorari denied, --- U.S. ----, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992). Once the prima facie case is established, the burden shifts to the government to articulate a neutral explanation for the exclusion of the black venire members, Batson, 476 U.S. at 94, 106 S.Ct. at 1721, that is "clear and reasonably specific, presenting legitimate reasons that are related to the particular case." Nichols, 937 F.2d at 1262. However, the government's explanation "need not rise to the level justifying exercise of a challenge for cause." Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723. The trial judge must then determine whether the government's use of a peremptory challenge was motivated by improper factors. Id. at 98, 106 S.Ct. at 1723. Because the trial judge's findings often involve questions of credibility, our review is deferential, and we will only overturn a finding regarding discriminatory intent in the use of peremptory challenges if it is clearly erroneous. United States v. Ferguson, 935 F.2d 862, 864 (7th Cir.1991), certiorari denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 807 (1992).
7
In the instant case, the venire consisted of 30 persons, four of whom were black. Two of those blacks were empaneled, and two were struck by the government. Hughes objected to each of these strikes. The trial judge overruled all of Hughes' objections, finding no racial factor in the explanations put forth by the government. At the end of the jury selection, the government had one peremptory challenge left.
8
The government argues that its peremptory strikes against the two black venire members were not racially motivated and that its explanations were race-neutral. The government challenged Lily Hill primarily because she had a cousin who had served two years in jail for a drug offense and robbery and who, since his release, was arrested and awaiting trial on other drug and robbery charges. Despite Hill's attestation to the contrary, the government questioned her ability to be fair and impartial, particularly in light of the proximity both in blood relationship and in time to her cousin's legal troubles, relying on its "intuitive assumptions" regarding the latent inclinations of a prospective juror. United States v. Briscoe, 896 F.2d 1476, 1489 (7th Cir.), certiorari denied, --- U.S. ----, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990) (approving intuitive assumptions that are not quantifiable). As a secondary reason, the government stated that it was looking for law-abiding and stable people, and that Hill was unemployed2 and living with her fourteen-year old twins that she had had out of wedlock when she was forty.
9
The government challenged Tracy Allen because she is young, recently unemployed without having looked for another job, and lacks a stable, traditional household, as she is unmarried with three children. The government argues that it has an interest in having jurors with stable family backgrounds who would be fair to the government and who would not identify with the disorganized and uncertain lifestyles of drug dealers.3 As a secondary reason, the prosecutor stated that Allen had taken a paralegal course a few years earlier which included "a taste of criminal law" and that he was a "little leery of people who have a little knowledge of the law." The government reasons that there is a danger that a person who has had some legal training herself or himself, as opposed to someone who has merely sat as a civil juror or had lawyers or law students for spouses, may bring a few extraneous and undeveloped legal principles to the deliberation process. Williams, 934 F.2d at 850.
10
Hughes argues that the government's explanations are a sham and not related to this case. Regarding Hill, Hughes argues that it is preposterous that an out-of-wedlock pregnancy 15 years earlier could demonstrate that a venire member does not possess stability and law-abiding characteristics. Moreover, none of the white venire members, married or not, were asked if they ever had children out of wedlock. As for her cousin's drug conviction, Hill unhesitatingly stated that she had no difficulty with a law that prohibits the possession or distribution of narcotics and that there was no reason why she could not be fair and impartial. Hughes points out that a white juror was kept even though he himself had had a conviction when he was a teenager. Regarding Allen, Hughes notes that the government did not strike two white jurors who were unemployed, nor did it strike white jurors who had prior jury service or who had a spouse that was either a lawyer or a recent law student.
11
We find that the government gave race-neutral explanations for each of its strikes against the black venire members. The trial judge, who was in a position to consider all of the relevant circumstances, ruled that the government's reasons were acceptable. The government's primary reason for excluding Hill was that she had a cousin with a drug conviction who was also awaiting trial on another drug arrest. We cannot say that it was clearly erroneous for the district court to conclude that this race-neutral explanation was credible.4 Allen was excluded primarily for being young, unemployed, and from an unstable or untraditional background because she was never married, yet had three children. Nichols, 937 F.2d at 1264 (age and marital status are legitimate reasons for the exercise of peremptory challenges); Ferguson, 935 F.2d at 865 (youth and unemployment justified strikes). While it is true that some unemployed white venire members were empaneled, none of the white venire members had all of these factors in combination. Thus we cannot say that the district court's finding that the government's reason was acceptable under Batson was clearly erroneous. There are additional facts that weaken the argument that the government's strikes were based on a motive to discriminate: two blacks of four on the venire were empaneled, the government did not use all of its peremptory challenges to exclude blacks, and the government had one peremptory challenge left. See Nichols, 937 F.2d at 1264 (citing cases). Accordingly, we hold that the government's explanations comport with the mandate of Batson v. Kentucky.
B. Evidentiary Rulings
12
Hughes next argues that the trial court committed reversible error in violation of the Due Process Clause of the Fifth Amendment when it precluded him from presenting his defense. Hughes points to two of the trial court's evidentiary rulings, which, he alleges, prejudiced him. The first is the trial court's refusal to allow Hughes to enter into evidence a notebook, which allegedly contained exculpatory evidence, recovered by the FBI from the El Chubasco. The second is the trial court's refusal to allow a defense witness to testify to certain statements that Hughes allegedly made indicating his intent to secure drugs for his personal use. Hughes argues that these evidentiary rulings had a substantial effect on his rights and resulted in actual prejudice in its influence on the jury's verdict, United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986), in that the "excluded evidence would have been the only or primary evidence in support of * * * [his] defense." United States v. Peak, 856 F.2d 825, 834 (7th Cir.), certiorari denied, 488 U.S. 969, 109 S.Ct. 499, 102 L.Ed.2d 535 (1988).
13
We give special deference to the evidentiary rulings of the trial court, which is in the best position to balance probity and prejudice. United States v. Degaglia, 913 F.2d 372, 375 (7th Cir.1990). Therefore, we will only reverse a decision regarding the admissibility of evidence if the trial court has clearly abused its discretion. United States v. Williams, 951 F.2d 853, 857 (7th Cir.1992). An abuse of discretion generally occurs only " 'where no reasonable person could take the view adopted by the trial court.' " United States v. Tipton, 964 F.2d 650, 654 (7th Cir.1992) (quoting United States v. Manos, 848 F.2d 1427, 1429 (7th Cir.1988)). An erroneous evidentiary ruling is reversible error if it results in actual prejudice because of its "substantial and injurious effect" on the determination of the jury's verdict. Lane, 474 U.S. at 449, 106 S.Ct. at 732.
1. Notebook
14
During the search of Victor Velasquez's apartment above the El Chubasco Bar, the FBI recovered a spiral notebook. At trial, the government introduced one page from this notebook, which contained notations of two telephone messages, one from Hughes for Victor Velasquez, the other for Hughes. The government introduced the page in order to prove an association between Hughes and both Victor Velasquez and the El Chubasco Bar.
15
In its case in chief, the government made reference to Hughes as being responsible for keeping drug ledgers. To rebut the government's contention that he kept the records by showing that someone else kept them, twice Hughes attempted to introduce the rest of the notebook. Hughes contended that the notebook was relevant to his defense and was thus admissible under Federal Rule of Evidence 401.
16
The government objected to the admissibility of the notebook on the ground of relevance, since one of its FBI witnesses unequivocally testified that the notations in the notebook were not related to narcotics activities. On appeal, the government argues that Hughes failed to lay a foundation for the relevancy of the notebook and that the notebook was not relevant to any legitimate defense because it was not a ledger. In fact, no ledgers were found in the search of the El Chubasco building. The evidence that the government did introduce regarding drug ledgers was a telephone conversation between Hughes and another codefendant in which Hughes himself stated that he had maintained drug ledgers for Victor Velasquez in the past. Moreover, in his closing argument, Hughes' counsel argued to the jury that the government produced no evidence that Hughes handled the books for Victor Velasquez or that Hughes' fingerprints were even on the notebook in question.
17
The trial judge excluded the notebook on the ground that its probative value would be substantially outweighed by its potential to prejudice Hughes by confusing the issues and misleading the jury. Fed.R.Evid. 403. Since there were no other references in the notebook to Hughes, the trial judge was concerned that the jurors would spend an inordinate amount of time theorizing about the entries in the notebook and, without guidance in considering the notebook, be left to "conjure up all kinds of things one way or another and try to interpret these [notations] as codes or whatever." Trial Transcript at 901.
18
Under Federal Rule of Evidence 403, a trial judge may exclude relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." We accord great deference to assessment of relative probative value of the trial judge, who has first-hand exposure to the evidence and is familiar with the course of the trial, and will only reverse the trial judge's decision for an abuse of discretion. United States v. Morris, 957 F.2d 1391, 1399 (7th Cir.1992).
19
We agree that the probative value of the notebook was substantially outweighed by its prejudicial effect. Because the jury knew that the notebook was not a ledger and did not contain drug-related entries, its introduction would not substantially aid the defense. Evidence of Hughes' participation in the conspiracy was before the jury on the tapes, and, whether or not the notebook had handwritten entries made by someone else, Hughes could have kept drug records for Victor Velasquez sometime in the past. On the other hand, the jury might have been confused and misled by the admission of the notebook. Given our deferential standard of review, we cannot say that the trial judge abused his discretion in refusing to admit the notebook.
2. Witness Testimony
20
While defense witness Barbara Nunnery was on the stand, Hughes attempted to elicit testimony from her that she had numerous conversations with Hughes in which he told her that he intended to go to the El Chubasco to purchase drugs. Nunnery was permitted to testify regarding Hughes' intent to go to the El Chubasco, but the trial judge sustained the government's objection as to the reason why he went there on hearsay grounds. Hughes argues that such statements of intent are admissible under Federal Rule of Evidence 803(3) and Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892), and that the distinction between "where" and "why" was erroneous, depriving him of his right to put on his defense. He argues that the testimony he attempted to elicit from Nunnery was relevant to his defense that he worked for Victor Velasquez to get narcotics for himself, not to distribute them. Nunnery's testimony would allegedly explain his presence at the El Chubasco and show that he was employed by Victor Velasquez as a bouncer and a janitor and was paid for his services in drugs. Hughes argues that because this evidence was the sole means of presenting his theory of defense to negate the intent to distribute, the trial court's ruling was reversible error. See Peak, 856 F.2d at 834.
21
Federal Rule of Evidence 803(3) provides an exception to the hearsay rule for "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)." To be admissible, the statement must have been made under such circumstances, so that the declarant had no time to either reflect or to misrepresent his thoughts. United States v. Harvey, 959 F.2d 1371, 1375 (7th Cir.1992). "Statements indicating state of mind are generally admissible only when state of mind is in issue or when it tends to prove the doing of the act intended." Peak, 856 F.2d at 833 (citing Hillmon, 145 U.S. 285, 12 S.Ct. 909).
22
We agree with Hughes that the statement of his intent to go to the El Chubasco to procure drugs was admissible under Federal Rule of Evidence 803(3) because it was offered to show Hughes' then existing state of mind and because it was relevant to the theory of the defense. We must, therefore, determine whether the trial court's error in excluding the evidence was harmless beyond a reasonable doubt. Fed.R.Crim.P. 52(a). "Unless the error creates a significant risk of convicting an innocent person, it should be disregarded." United States v. Green, 786 F.2d 247, 252 (7th Cir.1986).
23
Despite the trial court's evidentiary error, Hughes was able to present his side of the case to the jury. See United States v. Norwood, 798 F.2d 1094, 1098 (7th Cir.), certiorari denied, 479 U.S. 1011, 107 S.Ct. 656, 93 L.Ed.2d 711 (1986) (evidentiary error did not injuriously influence jury's verdict); United States v. Cerro, 775 F.2d 908, 916 (7th Cir.1985) (reversal is required even if evidence of guilt was overwhelming if the defendant was utterly precluded from defending himself because of the exclusion of evidence). Hughes presented ample evidence that he was a drug addict, which the government did not dispute. Nor was evidence that Hughes was going to the El Chubasco to obtain drugs for himself inconsistent with the government's theory that Hughes was both a drug addict and a drug dealer who purchased drugs for both his personal consumption and for resale. Cf. Peak, 856 F.2d at 835 (reversible error found where exclusion of evidence tending to disprove intent required for conviction was vital to defendant). In any event, in light of all of the evidence of guilt the government presented in numerous tapes which implicated Hughes in the conspiracy and in the distribution of drugs, any such impediment to Hughes' defense was minor and must be deemed harmless beyond a reasonable doubt. Cerro, 775 F.2d at 916.
MARTIN LEANOS AND ATILANO VELASQUEZ
24
On August 30, 1989, Martin Leanos and Atilano Velasquez ("Atilano"), the cousin of Victor Velasquez ("Victor"), pleaded not guilty to all pertinent counts of the indictment.5 The next day, each withdrew his not guilty plea and entered a plea of guilty to Count Two pursuant to a plea agreement that stipulated that the criminal history category under the United States Sentencing Guidelines ("Sentencing Guidelines") for each of them would be "I" and that the government would dismiss the remaining counts.
25
The parties agreed that prior to and including May 4-5, 1989, Victor was negotiating by telephone to purchase cocaine from Leanos, which Atilano was to pick up, but that Leanos never produced the cocaine. In Atilano's plea agreement, he and the government agreed that 1) he had participated in the negotiation for the sale of approximately one kilogram of cocaine; 2) his adjusted offense level under the Sentencing Guidelines was 26; 3) he merited a two-level downward adjustment for acceptance of responsibility; and 4) the minimum sentence for the narcotics conspiracy in Count Two was five years and the maximum sentence was 40 years, supervised release for a term of four years up to and including life, and a maximum fine of $2 million. In Leanos' plea agreement, on the other hand, the parties reserved the right to argue certain disagreements at the sentencing hearing, namely, 1) the amount of cocaine involved, which would affect the offense level under the Sentencing Guidelines as well as the mandatory minimum sentence; and 2) whether Leanos merited a reduction for acceptance of responsibility.
26
At the sentencing hearing on December 20, 1990, the sentencing judge heard testimony from the government's witness, FBI Agent Donald Kopec, and from the defendants' witnesses, Victor and Leanos. The sentencing judge then made a finding of fact that one kilogram of cocaine was involved. Both defendants were sentenced on Count Two to the mandatory minimum sentence of five years with four years of supervised release. Pursuant to the plea agreements, the government dismissed the remaining counts. Both defendants appeal their sentences, arguing that FBI Agent Kopec was not properly qualified as an expert witness in coded drug conversations and that the district court's finding that one kilogram of cocaine was involved was not supported by the evidence.6
A. Expert Testimony
27
At the sentencing hearing, the government called FBI Agent Donald Kopec to testify as an expert on coded conversations. Over the defendants' objection, the sentencing judge found Kopec to have sufficient expertise to testify concerning the coded conversations relevant to this case. We review a district court's qualification of an expert for an abuse of discretion. United States v. Briscoe, 896 F.2d 1476, 1497 (7th Cir.), certiorari denied, --- U.S. ----, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). Atilano and Leanos argue that the sentencing judge abused his discretion in allowing Kopec to testify as an expert for several reasons: 1) he had only a little formal education in drug transactions; 2) he had no specialized knowledge to interpret words he had never heard in the context of a drug transaction before; 3) his testimony was not corroborated by any other evidence; and 4) the court essentially delegated the fact finding to Kopec regarding the interpretation of the transcripts of the recorded conversations.
28
The government responds that Kopec, in fact, did have sufficient training in the area of narcotics investigations, including course work through the FBI and the Drug Enforcement Administration and experience in several narcotics investigations involving electronic surveillance. Kopec testified that, although he was mostly familiar with English code words, he had some knowledge of Spanish code words as well.7 Finally, the government argues that although Kopec's testimony "embraced the ultimate issue at the hearing," it was the sentencing judge, who, having access to all of the tapes and transcripts, was able to assess the validity and credibility of Kopec's interpretations.
29
This Court has recognized that narcotics code words constitute an appropriate subject for expert testimony, United States v. Foster, 939 F.2d 445, 451 (7th Cir.1991), and that federal agents who have training and experience "in drug-related transactions, crimes and prosecution are qualified to give expert testimony concerning the practices of those engaged in this type of activity." United States v. Gonzalez, 933 F.2d 417, 428 (7th Cir.1991). We agree with the sentencing judge that Kopec was qualified to give an expert opinion regarding the ultimate issue to be determined at sentencing, that is to say, the narcotics code words, quantities, and prices. Fed.R.Evid. 704(a) ("testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact"). The district court did not abuse its discretion in qualifying Kopec as an expert or in admitting his testimony.
B. Quantity of Drugs
30
Atilano and Leanos also argue on appeal that the government did not prove by a preponderance of the evidence that one kilogram of cocaine was involved in the conspiracy and maintain that the transaction was to be for two ounces.8 They argue, specifically, that the government failed to prove the following: 1) that the amount under negotiation in the uncompleted transaction was one kilogram; 2) that Leanos and Atilano intended to produce a kilogram; and 3) that Leanos and Atilano were "reasonably capable of producing" one kilogram. United States v. Ruiz, 932 F.2d 1174, 1184 (7th Cir.), certiorari denied, --- U.S. ----, 112 S.Ct. 151, 116 L.Ed.2d 116 (1991). They further argue that, in fact, their capability to deliver drugs was simply not addressed by the government's proof despite the fact that there was no evidence that they had ever done any drug business before.
31
The government responds that it had proved the Ruiz factors by a preponderance of the evidence. Id. at 1184.9 In considering Kopec's interpretation of the meaning of 17 drug-related conversations involving several members of the conspiracy, the sentencing judge concluded that one kilogram of cocaine was involved in the proposed deal. Since no transaction ever in fact occurred, the meaning of the tapes regarding the negotiations on May 4 and 5, 1989, was that the defendants intended to distribute one kilogram of cocaine, and though Leanos may have been having some difficulty in producing the cocaine, the trust conferred on him by Victor indicates that Leanos was reasonably capable of producing one kilogram of cocaine.
32
The sentencing judge determines the amount of drugs involved by a preponderance of the evidence. United States v. Schuster, 948 F.2d 313, 315 (7th Cir.1991). We accept a sentencing court's determination of the quantity of drugs involved in an offense absent clear error. United States v. Cea, 963 F.2d 1027, 1030 (7th Cir.1992). "[T]he sentencing court should consider negotiated amounts of drugs absent a determination that the defendant did not intend to or could not produce those amounts." United States v. Buggs, 904 F.2d 1070, 1079 (7th Cir.1990).
33
Several conversations between May 4 and 7, 1989, implicated the defendants in the negotiation for the sale of one kilogram of cocaine, with Victor as the buyer, Atilano as his middleman and assistant, and Leanos as the supplier. In order to determine the subject of the taped conversations, the government's expert, Kopec, considered five factors: 1) the length of the conversation; 2) the tone of the voice; 3) the presence and absence of code words; 4) whether the code words would make any sense if taken literally; and 5) the context of the particular conversation with relation to other conversations which may have occurred within a short period of time. Although the deal fell through, Kopec was able to interpret that from his own knowledge of the market price of drugs and from the context of numerous taped conversations, the amount of cocaine that Victor, Atilano, and Leanos negotiated was one kilogram.10
34
The sentencing judge found Kopec's testimony credible. He found that individuals involved in narcotics transactions tend to speak in coded terms, and that those terms could have different connotations in different circumstances. The judge found that, here, terms like "a gallon of paint" and "truck," "van," and "tractor" when used by the co-conspirators in several conversations, including the proposed transaction on May 4th, indicated the involvement of a kilogram quantity of cocaine. The sentencing judge further noted that the defendants did not contest the fact that they were discussing the sale of cocaine in the taped conversations. Rather, they maintained that certain code words used in those conversations, such as "truck" and "van," referred to the actual objects and were not code words for drugs. Leanos and Victor testified that the negotiated transaction that involved Atilano and them was for only two ounces of cocaine. The sentencing judge, after reviewing all of the conversations in context, concluded, over the objection of the defendants, that the government had established by a preponderance of the evidence that the proposed transaction was to involve one kilogram of cocaine.
35
The defendants further argue that the sentencing judge made no findings as to whether they intended to produce one kilogram or were reasonably capable of producing one kilogram. We disagree. Although no transaction in fact occurred, the specific negotiations over the telephone regarding price and quantity indicated that they intended to produce that amount. See Cea, 963 F.2d at 1031. Regarding the capability of Leanos to supply that amount, at sentencing Leanos' counsel argued that Leanos neither knew where to get that amount nor could get it. Sentencing Transcript at 164. The government's position was that because Victor and Leanos were still friendly after the transaction did not materialize, the court could infer that other transactions had been completed in the past and that there was a likelihood that others would be in the future. Id. at 163. Thus the sentencing judge had the arguments regarding the capability to produce one kilogram before him and made the specific finding that the more likely reason that the transaction for one kilogram of cocaine never occurred was not through any particular fault of the defendants but rather because they were aware that some government surveillance was going on. Id. at 166. In any event, the facts of this case are distinguishable from Ruiz, in which this Court refused to accept a single off-hand comment, which we referred to as braggadocio, as evidence of capability of producing a certain quantity of drugs. Ruiz, 932 F.2d at 1184. Here not only were there recurrent conversations in which Leanos spoke as if he were capable of producing the negotiated amount, but there was also evidence that the relationship between Victor and Leanos was friendly and suggested a mutual trust from which it could be inferred that Victor certainly had reason to believe that Leanos could supply the negotiated amount. Our review of the record indicates that the sentencing judge's conclusion was not clearly erroneous.
CONCLUSION
36
For the foregoing reasons, the conviction of David Hughes and the sentences of Martin Leanos and Atilano Velasquez are
37
AFFIRMED.
*
Honorable S. Hugh Dillin, District Judge of the Southern District of Indiana, is sitting by designation
1
A mixer and a fixer is someone who dilutes or cuts drugs for distribution
2
The government admits that it erred when it characterized Hill as unemployed, but that such an error was not relevant since the primary reason for excluding Hill was her relationship with her cousin
3
We note that this argument made in the government's appellate brief was not presented to the district court. As has been stated before, "a nexus [between the challenge and the ruling thereon] should ordinarily be a significant part of the [district court's] rationale." Ferguson, 935 F.2d at 868 (Cudahy, J., concurring)
4
Although Hughes' point is well-taken that the government did not question any of the married or single white jurors whether they ever had children out of wedlock, instead concluding that an older black woman who had twins out of wedlock 14 years earlier was unstable, we need not consider it, since the government's primary reason for excluding Hill was acceptable
5
Count Two charged both of them with participation in the drug conspiracy from about June 1988 until the end of August 1989. 21 U.S.C. § 846 and 18 U.S.C. § 2. Leanos was charged with using the telephone in connection with the conspiracy in Counts 85-88, and Atilano was charged with the same in Counts 42-43, 62, 84, 89-91, and 93-94. 21 U.S.C. § 843(b)
6
Attorney Bourgeois received leave of this Court to substitute himself as appellate counsel for Leanos after the initial brief was filed and before the reply brief was filed. In his reply brief, counsel addressed the following issues: 1) that the district court erred by not addressing whether Leanos had the ability to supply one kilogram of cocaine; 2) that Kopec's analysis of the tape recordings in evidence did not support the sentencing judge's finding regarding the negotiated quantity of cocaine because Kopec's analysis was based on speculation; 3) that Leanos pleaded guilty to an offense that he did not commit as a matter of law because there was insufficient evidence at the plea hearing concerning his membership in the charged drug conspiracy; and 4) that Leanos received ineffective assistance of counsel because trial/appellate counsel did not challenge the sufficiency of the factual basis underlying the plea. The government argues that these issues were not addressed in the initial brief and has moved to strike the reply brief on the ground that raising new matters therein violates Circuit Rule 28(f), which provides that "[a] reply brief shall be limited to matter in reply." Leanos' counsel responds that the government's motion was untimely, as it was prepared less than 24 hours before oral argument, and that, in any event, the government would suffer no prejudice if it were allowed to submit a modified responsive brief, even after oral argument. He disagrees with the government's characterization of all of the issues addressed in his reply brief, since Leanos' ability to supply cocaine was addressed in the opening brief under the three Ruiz factors and, although the word "speculative" was not used, the opening brief did attack Kopec's testimony. Although counsel admits that there are new issues raised in his reply brief, namely, Leanos' pleading guilty to a crime which he did not commit and ineffective assistance of counsel, he asks us to consider these new issues in the interests of justice and not to strike the reply brief
We agree with Leanos that two of the issues addressed in the reply brief were sufficiently raised in the opening. However, we will not consider the new issues since " '[a]rguments raised for the first time in a reply brief are waived.' " Damato v. Sullivan, 945 F.2d 982, 988 n. 5 (7th Cir.1991) (quoting Ippolito v. WNS, Inc., 864 F.2d 440, 455 n. 12 (7th Cir.1988)). Nor were they raised at the sentencing hearing. United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991) (failure to raise a challenge in front of the sentencing court waives that issue on appeal). Moreover, we note that the transcripts from the plea hearing have not been made part of the record on appeal and that " 'ineffective assistance of counsel claims are best dealt with at the district court level, either through a motion for a new trial, * * * or through the collateral relief available under 28 U.S.C. § 2255.' " United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991), certiorari denied, --- U.S. ----, 112 S.Ct. 1962, 118 L.Ed.2d 563 (quoting United States v. Reiswitz, 941 F.2d 488, 495 (7th Cir.1991)). Accordingly, the government's motion to strike the reply brief of Martin Leanos is granted in part and denied in part.
7
Many of the intercepted conversations were in the Spanish language. Kopec and the court relied on English translations, to which the defendants raised no objection
8
Although Atilano agreed in his plea agreement that he had participated in the negotiation for the sale of one kilogram of cocaine, at the plea hearing he disputed the quantity of cocaine involved. The government agreed that this issue would be determined by the sentencing court. Sentencing Transcript at 9
9
The Ruiz factors are based on application note 1 of U.S.S.G. § 2D1.4, which reads in relevant part: "where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing." The government has argued that the Ruiz factors do not apply to this case because Atilano and Leanos received the statutory minimum sentence rather than a sentence under the Sentencing Guidelines. We disagree with the government's contention that this is not a Sentencing Guidelines case. Had the sentencing judge agreed with the defendants that only two ounces of cocaine were involved in the negotiation, he would have sentenced them under the Sentencing Guidelines. However, once the sentencing judge determined that the amount of cocaine involved was more than 500 grams, the Sentencing Guidelines themselves required the sentencing judge to render a sentence no lower than the minimum that 21 U.S.C. § 841(b)(1)(B)(ii) required. U.S.S.G. § 5G1.1(c)(2)
10
Kopec testified that he had independent knowledge of the market value of various drugs, and from the knowledge that a kilogram of cocaine cost between $16,000 and $18,000 in Chicago in 1989, he was able to interpret the amount of cocaine negotiated
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627 F.3d 309 (2010)
UNITED STATES of America, Plaintiff-Appellee,
v.
Arthur HUDSON, Defendant-Appellant.
No. 09-3680.
United States Court of Appeals, Seventh Circuit.
Argued May 27, 2010.
Decided December 6, 2010.
*310 Christopher P. Hotaling, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Carol A. Brook, Attorney, Imani Chiphe, Attorney (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.
Before BAUER, WOOD, and TINDER, Circuit Judges.
TINDER, Circuit Judge.
In late September or early October of 2005, Arthur Hudson received approximately 20 kilograms of cocaine on consignment from a person identified in the record below as "Individual A" at a Culver's restaurant in Romeoville, Illinois. After this deal, "A" started cooperating with the Drug Enforcement Administration. On October 17, 2005, "A" and an undercover DEA agent met Hudson in a Walgreens parking lot in Romeoville to get the money Hudson owed for the previously fronted drugs. Hudson gave the informant the keys to his Chevy Impala and told him how to find the money inside the car's "trap," a hidden compartment. "A" and the agent found about $240,225 in cash and about 600 grams of powder cocaine and 80 grams of cocaine base in the form of crack cocaine inside the trap. The trio met again on October 18, 2005, this time with a payment of $92,495 being made through the use of the Chevy's trap.
A federal magistrate judge signed a sealed criminal complaint on December 14, 2005, charging Hudson with knowingly and intentionally possessing cocaine and crack cocaine with intent to distribute it. Federal agents arrested Hudson the next day in his Chicago home. His wife consented to a search of the home, during which agents found guns and drug-related paraphernalia, including a Ruger 9mm semi-automatic pistol (next to a kilogram of cocaine) in a filing cabinet drawer.
Hudson pled guilty on June 19, 2008, to possessing five kilograms of cocaine or more with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and possessing a firearm (the Ruger) in furtherance of his drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A). Hudson admitted the drug crime and that he possessed and stored the Ruger to protect himself and his drug stash. The district court sentenced Hudson to the statutory mandatory minimum 120 months' incarceration for the drug charge and to 60 months' incarceration for gun possession in furtherance of drug dealing, to be served consecutively to the period of incarceration on the drug charge.
Hudson appeals only his sentence, contending that we should vacate the 60-month consecutive portion of the sentence because the district court mistakenly believed § 924(c)(1)(A) required a mandatory minimum term of consecutive confinement. *311 Hudson makes a single but pointed argument: he contends that § 924(c)(1)(A) only imposes a mandatory consecutive sentence if the underlying crime does not impose a greater mandatory minimum sentence. And, of course, Hudson's § 841(a) conviction required a greater mandatory minimum sentence (120 months) than his § 924(c)(1)(A) conviction (60 months). Hudson bases his argument on what is known as the "except" clause of that firearm statute.
The "except" clause upon which Hudson relies provides:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime
(i) be sentenced to a term of imprisonment of not less than 5 years....
18 U.S.C. § 924(c)(1)(A)(i) (emphasis supplied).
Hudson argues that the only way to read § 924(c)(1)(A)(i) as mandating a five-year sentence for possessing a firearm in furtherance of drug trafficking on top of his ten-year sentence for the drug trafficking is to ignore § 924(c)(1)(A)'s exception for "any other provision of law."
Hudson's appellate counsel concedes that Hudson faces an uphill battle in pursuing this argument: his brief acknowledges that we held in United States v. Easter, 553 F.3d 519, 524-27 (7th Cir.2009) (per curiam), cert. denied sub nom., McKay v. United States, ___ U.S. ___, 130 S.Ct. 1281, ___ L.Ed.2d ___, and McSwain v. United States, No. 08-9560, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 4811788 (Nov. 29, 2010), that § 924(c)(1)(A)'s language "any other provision of law" did not include underlying crimes such as Hudson's conviction for possession with intent to distribute. Easter rested on the published opinions from four other circuits, which all held that the "any other provision of law" clause did not refer to the underlying drug trafficking crime or crime of violence. Id. at 525 (citing United States v. Alaniz, 235 F.3d 386, 389 (8th Cir.2000)); see also United States v. Parker, 549 F.3d 5, 10-12 (1st Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1688, 173 L.Ed.2d 1050 (2009); United States v. Jolivette, 257 F.3d 581, 587 (6th Cir.2001); United States v. Studifin, 240 F.3d 415, 423 (4th Cir.2001). Rather, "any other provision of law" refers only to "another penalty provision elsewhere in the United States Code [that] requires a higher minimum sentence for that § 924(c)(1) offense." Easter, 553 F.3d at 526.
Hudson recognizes that Easter dooms his appeal but in his brief he requests that we overturn Easter. Since Easter, four other circuits have reached the same conclusion. See United States v. Villa, 589 F.3d 1334, 1343 (10th Cir.2009), cert. denied, No. 09-1445, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2150717 (Nov. 29, 2010); United States v. Segarra, 582 F.3d 1269, 1272-73 (11th Cir.2009), cert. denied, No. 09-8536, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 111551 (Nov. 29, 2010); United States v. Abbott, 574 F.3d 203, 211 (3d Cir.2009); United States v. London, 568 F.3d 553, 564 (5th Cir.2009), cert. denied, No. 09-5844, *312 ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 4811790 (Nov. 29, 2010). Hudson asserts that Easter ignored § 924(c)(1)(A)'s plain language and that we should instead follow the Second Circuit's opinion in United States v. Williams, 558 F.3d 166 (2d Cir.2009), decided less than two months after Easter. Williams rested on United States v. Whitley, 529 F.3d 150 (2d Cir.2008), an opinion Easter expressly rejected.
Hudson also acknowledges that we review for plain error because he forfeited the issue by failing to raise it before the district court. As Hudson's briefs and oral argument make clear, his position in this appeal really rests on the hope that the Supreme Court would rule his way in a pair of then-pending cases directly addressing this issue. Given the choice at oral argument to wait to see if the Supreme Court would effectively overrule our existing circuit precedent or to take the chance that we would overrule Easter before the Court acted on the pending cases, Hudson elected to wait and see. We honored his request.
Hudson's wait ended November 15, 2010, when the Supreme Court held that § 924(c)(1)(A)'s "except" clause only applies when the minimum sentence "otherwise provided" is "for the [§ 924(c)] offense in question." Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, 31, ___ L.Ed.2d ___ (2010) (quoting Easter, 553 F.3d at 526). The Court addressed the same argument Hudson advances, that § 924(c)(1)(A)'s terms plainly except mandating its minimum sentence when another provision of law mandates a longer minimum sentence. The Supreme Court unequivocally rejected that construction, holding that the "except" clauseas a preceding and qualifying clause of the main clause that punishes the possession of a firearmrefers naturally to the conduct § 924(c) prohibits. The "except" clause serves as a "no-stacking instruction for cases in which § 924(c) and a different statute both punish conduct offending § 924(c)." Id. The Court noted that this reading gave effect to the provision's language requiring that all § 924(c) offenders receive an extra punishment for using guns in crimes of violence or drug trafficking. Id. at 26-27.
The Supreme Court's emphatic (and unanimous) rejection of the Second Circuit's approach to § 924(c) resolves Hudson's only argument on appeal. Because the Supreme Court confirmed in Abbott that we read § 924(c) correctly in Easter, we AFFIRM Hudson's sentence.
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CARLOS MOLINARES, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CITY HEIGHTS, LLC. /OMAR MARTINEZ AND EUGENIA
PALOMINO, husband and wife, FRED C. ANDREWS AND
CYNTHIA FORD ANDREWS, husband and wife,
Respondent Employers,
SPECIAL FUND DIVISION/NO
INSURANCE SECTION, Respondent Party in Interest.
No. 1 CA-IC 14-0039
FILED 6-4-2015
Special Action - Industrial Commission
ICA Claim No. 20122-360418
Carrier Claim No. None
Layna Taylor, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Snow & Carpio, PLC, Phoenix
By Erica González-Meléndez
Co-Counsel for Petitioner Employee
Toby Zimbalist, Phoenix
Co-Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Bert L. Roos, P.C., Phoenix
By Bert L. Roos
Counsel for Respondent Employers
Special Fund Division/No Insurance Section, Phoenix
By Christopher O. Anderson
Counsel for Respondent Party in Interest
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.
T H U M M A, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review for a claim found to be non-
compensable. Claimant employee Carlos Molinares raises one issue:
whether respondent employer City Heights, LLC, was subject to the
Arizona Workers’ Compensation Act. Because the ICA did not err in
finding City Heights did not regularly employ workers at the time of
Claimant’s injury, the award is affirmed and City Heights’ request for
attorneys’ fees incurred before this court is denied.
FACTS AND PROCEDURAL HISTORY
¶2 In August 2012, Claimant fell while climbing down a ladder
when painting a house in Phoenix. Claimant struck his head and right arm,
and was taken to the hospital by Omar Martinez who also was working on
the house. Claimant filed a workers’ compensation claim, which was
denied by respondent party in interest No Insurance Section. Claimant
timely requested an ICA hearing, and the administrative law judge (ALJ)
held an evidentiary hearing where Claimant, Martinez and others testified.
After the ALJ found the claim non-compensable, Claimant timely requested
administrative review. The ALJ supplemented and affirmed the award,
incorporating by reference respondents’ opposition to Claimant’s request
for review. See Hester v. Indus. Comm'n, 178 Ariz. 587, 589–90, 875 P.2d 820,
2
MOLINARES v. CITY HEIGHTS
Decision of the Court
822–23 (App. 1993). This court has jurisdiction over Claimant’s subsequent
request for review pursuant to Arizona Revised Statutes (A.R.S.) sections
12-120.21(A)(2), 23-951(A) (2015)1 and Arizona Rule of Procedure for
Special Actions 10.
DISCUSSION
I. The Applicable Legal Standards.
¶3 This court defers to the ALJ’s factual findings, viewing the
evidence in a light most favorable to upholding the award. Young v. Indus.
Comm’n, 204 Ariz. 267, 270 ¶ 14, 63 P.3d 298, 301 (App. 2003); Lovitch v.
Indus. Comm’n, 202 Ariz. 102, 105 ¶ 16, 41 P.3d 640, 643 (App. 2002). This
court reviews issues of law de novo. Young, 204 Ariz. at 270 ¶ 14, 63 P.3d at
301.
¶4 To be eligible for workers’ compensation benefits under the
Arizona Workers’ Compensation Act (Act), a worker must have been an
employee of an employer subject to the Act at the time of injury. See A.R.S.
§§ 23-901(6), -1021. Employers subject to the Act include:
[E]very person who employs any workers or
operatives regularly employed in the same
business or establishment under contract of
hire, including covered employees pursuant to
a professional employer agreement, except
domestic servants. . . . For the purposes of this
subsection, “regularly employed” includes all
employments, whether continuous throughout
the year, or for only a portion of the year, in the
usual trade, business, profession or occupation
of an employer.
A.R.S. § 23-902(A). “The Legislature used the term ‘regularly employed’ in
section 23-902(A) to refer to whether it is in the employer’s regular or customary
business to employ workers, not to whether the employee in question is
performing a task in the employer’s usual trade.” Donahue v. Indus. Comm’n,
178 Ariz. 173, 176, 871 P.2d 720, 723 (App. 1993) (emphasis added). An
employer is subject to the Act when the employer regularly employs at least
one employee in the regular course of the employer’s business. Id. at 179,
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
3
MOLINARES v. CITY HEIGHTS
Decision of the Court
871 P.2d at 726. The issue here is whether City Heights regularly employed
at least one worker in the regular course of its business.
II. Claimant’s Request For Judicial Notice.
¶5 The house where Claimant was injured was owned by Tim
Stein, doing business as City Heights, and Fred C. Andrews, Jr. Claimant
asks this court to take judicial notice of documents from the Maricopa
County Recorder’s Office evidencing other purchases by City Heights.
Those records do not show that any other houses were remodeled or
required hiring workers. More significantly, the fact-finding process in ICA
proceedings ends at the conclusion of the last scheduled administrative
hearing. Sw. Nurseries v. Indus. Comm’n, 133 Ariz. 171, 174, 650 P.2d 473, 476
(App. 1982). Any records not considered by the ALJ are not properly part
of the record before this court, and will not be considered by this court. See,
e.g., Wood v. Indus. Comm’n, 126 Ariz. 259, 261–62, 614 P.2d 340, 342–43 (App.
1980); Shockey v. Indus. Comm’n, 140 Ariz. 113, 116 n.1, 680 P.2d 823, 826 n.1
(App. 1983). Accordingly, this court denies Claimant’s request for judicial
notice. See Ariz. R. Evid. 201.
III. The Administrative Record Properly Supports The Award.
¶6 The ALJ concluded that the record contained insufficient
evidence to establish City Heights regularly employed any workers.
Claimant argues City Heights regularly employed workers in its business
of buying, remodeling and reselling houses. The evidence considered by
the ALJ admittedly conflicted, with the primary conflict being between
Claimant’s testimony and the testimony of the other witnesses.
¶7 Stein testified he formed City Heights to buy and sell houses,
and City Heights purchased two houses, one of which was where Claimant
was injured. Stein also owned a flooring business, Metro West Wholesale,
LLC, which was initially named as a respondent but was dismissed during
the hearing before the ALJ. Andrews’ involvement was limited to being an
investor in the house where Claimant was injured.
¶8 The house where Claimant was injured needed repairs before
it could be sold, and Stein was responsible for securing the necessary work.
Stein testified that City Heights’ only business was to purchase the house
for resale and that it was a side business for him as his main business was
Metro West Wholesale. Stein said it was a “pretty singular” event in his
career and a way to potentially make some money. But Stein added that he
was not a “pro,” and did not “regularly employ people” to do remodeling
work.
4
MOLINARES v. CITY HEIGHTS
Decision of the Court
¶9 Stein obtained written estimates for the work and hired
contractors. Stein also hired Martinez as a general handyman from time to
time. Stein testified that Martinez had a regular full-time job, so he
performed the handyman work whenever his regular job allowed. Stein
paid Martinez $15.00 per hour, either in cash or by City Heights check, and
he reimbursed Martinez for any materials that he purchased.
¶10 Stein testified Martinez hung drywall at the house for a week
in July 2012. Martinez requested an assistant, to be paid $10.00 per hour.
Stein agreed, and told Martinez to hire someone. Martinez hired Claimant’s
son, but when his son’s regular job prevented him from completing the
work, he asked Claimant to take over. Stein also testified that he provided
materials for the work, but no equipment. After a house inspection in late
July, Stein asked Martinez to perform some repair work. Martinez and
Claimant worked at the house on August 1, 2012.
¶11 Martinez largely confirmed Stein’s testimony, adding that he
first met Claimant at the house on July 10, 2012 but that he never drove
Claimant to work in July. When Stein called Martinez to perform additional
repairs, Stein told him to get a helper to complete the repairs more quickly
and Martinez hired Claimant at a day laborer location on August 1, 2012.
Later that day, Claimant fell from a ladder and was injured.
¶12 Claimant, by contrast, testified he worked at the house with
Martinez, who drove him to work every morning. Claimant testified
Martinez told him what work to do and when he could quit each day and
paid him $10.00 per hour from money received from Stein. Claimant
testified Martinez told him he had worked for Stein and Andrews for 10
years, and there would be more work available on other houses.
¶13 Although the ALJ did not make an express credibility finding,
the ALJ supplemented the Award by specifically adopting respondents’
position in their response to Claimant’s request for review. By this action,
and given the finding Claimant’s claim was non-compensable, the ALJ
resolved the conflicting evidence in favor of respondents. On this record,
Claimant has not shown that was error and, having made that assessment,
the record supports a finding that City Height’s hiring of workers was “only
occasional and unpredictable.” See Putz v. Indus. Comm’n, 203 Ariz. 146, 150
5
MOLINARES v. CITY HEIGHTS
Decision of the Court
¶20, 51 P.3d 979, 983 (App. 2002). Accordingly, the ALJ did not err in
finding City Heights was not an employer subject to the Act. 2
CONCLUSION
¶14 Because Claimant has shown no error, the Award is affirmed.
Because City Heights has cited no proper authority for its request for an
award of attorneys’ fees before this court on this record, that request is
denied.
:ama
2For the first time in his reply before this court, Claimant requests a remand
for an additional evidentiary hearing, alluding to fraud by City Heights and
citing Sw. Nurseries v. Indus. Comm’n, 133 Ariz. 171, 174, 650 P.2d 473, 476
(App. 1982). Because Claimant’s request is untimely and because Claimant
has not shown that such additional evidence could not have been presented
to the ALJ at the initial hearing, the request is denied. See Ariz. Admin. Code
R20-5-156.
6
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701 So.2d 845 (1997)
Loran COLE, Appellant,
v.
STATE of Florida, Appellee.
No. 87337.
Supreme Court of Florida.
September 18, 1997.
Rehearing Denied October 29, 1997.
*848 James B. Gibson, Public Defender and Christopher S. Quarles, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing a death sentence upon Loran Cole. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Cole's convictions and death sentence but remand to the trial court for imposition of appropriate sentences for the remaining convictions for which Cole was adjudicated guilty.
On February 18, 1994, Pam Edwards, a senior at Eckerd College in St. Petersburg, Florida, drove to the Ocala National Forest, where she met her brother, John Edwards, a freshman at Florida State University in Tallahassee, Florida. The two planned on camping in the forest for the weekend and eventually decided to camp in Hopkins Prairie. They were setting up camp when Loran Cole briefly stopped by their campsite. Cole soon returned to the campsite, introduced himself as "Kevin," and helped them set up camp. After John and Pam ate dinner, Cole and William Paul came to the Edwards' campsite. Paul was carrying a walking stick and was introduced to the Edwards as Cole's brother. The four sat around the campfire, and at about 10:45 p.m., they decided to walk to a pond.
The four walked for a while but never found the pond. Instead, Cole jumped on Pam and knocked her to the ground. She got up and tried to run; however, Cole caught her, hit her on the back of the head, handcuffed her, and threw her down on the ground. Meanwhile, John had taken Paul's walking stick and was hitting him with it. Cole then helped Paul subdue John and moved John on the ground next to Pam. While they lay close to each other on the ground, John apologized to Pam for having exposed them to the dangers of these two strangers. Cole told the Edwards that he wanted to take their cars, and he went through their pockets and took their personal property, including their jewelry.
Paul took Pam up the trail, and he was complaining about his hand and head, which were injured in the altercation with John. Pam could hear Cole asking John why he *849 hurt Cole's brother and could hear John grunt a few times. Cole then came to where Pam and Paul were sitting and told them that they were going to wait until John passed out. Cole called back to John several times, and John responded by moaning. Eventually, Cole told Pam he was going to move John off the trail and tie him up. Pam then heard something that resembled a gagging sound. When Cole returned, he said that John must be having trouble with his dinner, hinting that John was vomiting. John died that night from a slashed throat and three blows to the head, which fractured his skull. The injury to the throat caused a loss of blood externally and internally into John's lungs.
Pam, Paul, and Cole then started walking back to Cole's campsite. On the way, they walked past John, and he was not moving. At the campsite, Cole forced Pam to sleep naked by threatening her that unless she cooperated, she and John would be killed. Cole then forced her to have sexual intercourse with him.
The next morning, Cole went to check on John and told Pam that John was fine. Cole left the campsite to purchase marijuana. When he returned, the three smoked marijuana, and Cole again forced Pam to have intercourse with him. After eating dinner, they packed up as much of the camp as would fit into the backpacks carried by Cole and Paul. Cole then gagged Pam and tied her to two trees. Cole and Paul left in Pam's car and went to a friend's trailer, where they spent the night. The two left several items of John Edwards' personal property at the trailer. Thereafter, Cole and Paul returned Pam's car to the Ocala National Forest and took John's car, a Geo Metro.
By the early morning on Sunday, Pam was able to free herself of the ropes. She did not move because she was afraid that if Cole and Paul returned and she was not there, they would hurt John. She stayed in that spot until daylight and tried to find John. When she was unable to find him, she flagged down a motorist, who took her to call the police. The police returned with Pam to the scene, and the police located John's body. The body was face down and was covered with pine needles, sand, debris, and small, freshly cut palm fronds. Both of his hands were in an upward fetal position; there was a shoestring ligature around his left wrist and a shoestring partially wrapped around his right wrist.
Police thereafter arrested Paul and Cole in Ocala on Monday, February 21, 1994. Paul and Cole were indicted on charges of first degree murder, two counts of kidnapping with a weapon, and two counts of robbery with a weapon. Cole was also indicted on two counts of sexual battery. Paul pleaded nolo contendere to the charges and was sentenced to life in prison without possibility of parole for twenty-five years on the murder charge and concurrent terms on the remaining charges. After a jury trial, Cole was found guilty on all counts of the indictment. A penalty-phase hearing was held, after which the jury unanimously recommended death. Finding four aggravators,[1] no statutory mitigators, and two nonstatutory mitigators,[2] the trial court followed the jury's recommendation and sentenced Cole to death.
On appeal, Cole raises fourteen issues.[3] In his first issue, Cole claims that the *850 trial court abused its discretion in allowing a portion of Pam Edwards' testimony to be read back to the jury during the jury's deliberations in the penalty phase. The jury requested to hear her testimony regarding John having difficulty with dinner. Defense counsel objected, requesting that the jury either be instructed to rely on its own recollection or be read the direct, cross, and redirect testimony of Pam regarding the whole scenario of the trail incident. The trial court determined that the court reporter could read that portion of the testimony over defense counsel's objection. Before the testimony was read, the jury clarified its request, asking for Pam's testimony beginning with John's apology to Pam. This portion of the testimony was then read to the jury.
Under Florida Rule of Criminal Procedure 3.410, upon request of the jury, a trial court has the discretion to order testimony be read to them. See Haliburton v. State, 561 So.2d 248, 250 (Fla.1990). We have found no abuse of discretion when a trial court rereads testimony specifically requested by the jury and that testimony is not misleading and does not place undue emphasis on any particular statements. Garcia v. State, 644 So.2d 59, 62 (Fla.1994); Haliburton. We have reviewed the record in this case and find no abuse of discretion by the trial court in allowing the rereading of portions of the testimony. The portions reread to the jury were directly responsive to the jury's request, and the limited rereading was not misleading and did not place undue emphasis on portions prejudicial to Cole. Accordingly, we find this issue meritless.
In issue two, Cole contends that the trial court erred in conducting several portions of the trial in Cole's absence. First, we reject Cole's claim regarding his absence from a hearing on the motion to sever. The record reflects that the trial court delayed hearing arguments on the motion until Cole was present. The trial court ultimately granted the motion at a status conference at which Cole was present. Thus, we find this issue without merit.[4]
Cole also contends that the trial court erred in holding numerous bench conferences in the hallway outside the courtroom without Cole's presence. However, the record reflects that at the beginning of the trial, defense counsel noted that the acoustics were poor in the small courtroom and sound carried. He then asked that side-bar conferences be held either in the hallway or the jury room. Defense counsel agreed with the trial court that the conferences should be held in the hallway. We have stated that a defendant does not have a constitutional right to be present at bench conferences involving purely legal matters. Coney v. State, 653 So.2d 1009, 1013 (Fla.), cert. denied,___ U.S. ___, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995); Hardwick v. Dugger, 648 So.2d 100 (Fla.1994). Upon our review of the claimed errors, the record shows that these conferences involved purely legal issues for which Cole's presence would not have aided counsel. This claim is also procedurally barred because Cole did not make a contemporaneous objection to any bench conferences being held in the hallway or to his desire to participate in any of the conferences. See generally Hardwick at 105.
In issue three, Cole claims the trial court erred in allowing the introduction of victim-impact evidence. At the outset, we reject Cole's request that we should recede *851 from our holding in Windom v. State, 656 So.2d 432, 438 (Fla.), cert. denied, ___ U.S. ___, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995), in which we found that victim-impact evidence was admissible pursuant to section 921.141(7), Florida Statutes (1993), once there is present in the record evidence of one or more aggravating circumstances described in section 921.141(5), Florida Statutes (1993). Cole also claims that the evidence introduced in this case exceeds the proper boundaries of section 921.141(7). During the penalty phase, the State presented the testimony of Brock Fallon, one of John Edwards' high school teachers. Fallon testified that John was a good student who was respected for his scholastic abilities as well as his personality. Based upon our review of the record concerning Fallon's testimony, we find that this testimony was limited to that which was relevant under section 921.141(7), and therefore we find no reversible error.
Next, in issue four, Cole claims error with respect to consideration of various aggravators and mitigators. In support of this claim, Cole raises several issues. First, Cole claims that the trial court erred in instructing and finding the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. See § 921.141(5)(h), Fla. Stat. (1993). Regarding this aggravator, the trial court found:
In determining whether to apply the heinous, atrocious and cruel aggravator, a murder may fit this description if it exhibits a desire to inflict a high degree of pain, or an utter indifference to or enjoyment of the suffering of another. Kearse v. State, [662 So.2d 677] 20 Fla. L. Weekly S300 (Fla. June 22, 1995). When evaluating the evidence, the trial court may consider the victim's fear and emotional strain as contributing to the heinous nature of the murder. Preston [v. State], 607 So.2d at 409-10; Hannon v. State, 638 So.2d 39 (Fla. 1994).
After John Edwards was forcibly subdued and restrained, the Defendant left him on the ground next to his sister Pamela. John's concern and understanding of the developing events was evidenced by his statement of regret for getting them into the situation. Although faced with personal danger and physical harm, John's only comment was "I'm sorry, Pam."
After robbing the victims, the Defendant moved Pamela further down the trail and away from John. The Defendant returned to where John was laying and beat him severely in the head while repeating over and over, "Why did you hurt my brother?" (referring to the Co-Defendant although they are actually unrelated) Pamela testified that she could hear her brother's grunts and moans. The Defendant left John Edwards and re-joined Pamela and the Co-Defendant, stating they would wait until John passed out before moving down the trail. Eventually, when John quit moaning, the Defendant returned to [the] area where John lay to "move and tie him off the trail."
From the evidence and testimony presented, John was still alive at this time. The Medical Examiner, Dr. Janet Pillow, testified that the Defendant's death was caused by blunt trauma wounds to the head and by a throat cut through the thyroid cartilage (Adam's apple) and epiglottis. John sustained at least three severe blows to the head caused by a blunt instrument with a sharp edge. Based on the bruising and bleeding, the [doctor] concluded that John was alive when the blows were inflicted.
The throat wound consisted of one small laceration above the large cut. The Medical Examiner testified that the small cut indicates that John was alive and consciously reacted to the knife or jerked causing a small laceration above the main cut. When his throat was cut, John bled both externally and internally. The wound bled directly into his airway preventing him from breathing. Dr. Pillow testified that John lived for several minutes while suffering from air hunger or the inability to breath[e]. Pamela Edwards testified that while the Defendant was with her brother, she heard gagging sounds. When the Defendant returned from moving John, he commented on the gagging by stating John was having "trouble with his dinner," insinuating that he might be vomiting. *852 During the course of the night while they wandered in the woods, the Defendant, Co-Defendant and Pamela passed John several times. Pamela testified that John lay on his stomach with his feet tied behind him. He did not move or speak.
By the testimony and evidence, the State has proved beyond a reasonable [doubt] that the Defendant subjected John Edwards to a slow, tortu[r]ous death. John was conscious for several minutes while he gasped [for] air from a severed windpipe slow[ly] filling with blood. Death finally resulted from the head wounds and loss of blood from the severed throat. The beatings and the manner in which the Defendant killed John Edwards evidences a total indifference on the part of the Defendant to the victim's suffering. The Defendant knew the victim died a slow, choking death and reacted with a joke. The Court finds that the testimony and evidence establishes that the Defendant committed the murder of John Edwards in a manner that was especially heinous, atrocious or cruel.
We affirm the trial court's finding that this aggravator was established beyond a reasonable doubt in this murder.
Cole next challenges the weight which the trial court assigned to the prior-violent-felony aggravator because it was based upon Cole's contemporaneous convictions for violent felonies upon Pamela Edwards. This aggravator was established beyond a reasonable doubt. See Windom. We find Cole's reliance upon Terry v. State, 668 So.2d 954 (Fla.1996), to be misplaced. This Court in Terry found that it was relevant, when considering the entire circumstances of the case for purposes of proportionality review, that the prior-violent-felony aggravator was predicated upon a contemporaneous conviction as a principal to an aggravated assault committed by a codefendant. Id. at 965-66. Terry is thus distinguishable from the instant case because the aggravating circumstance here is predicated upon Cole's own actions in forcibly subduing Pam, handcuffing her, robbing her of personal property including her jewelry, money and car keys, and raping her twice.
Cole also challenges the trial court's findings regarding the following aggravating circumstances: (1) murder committed during the course of a kidnapping; and (2) murder committed for pecuniary gain. We find that each aggravating circumstance was established beyond a reasonable doubt in view of the jury's verdict in the guilt phase that Cole was guilty of the kidnapping and robbery of John Edwards, verdicts which Cole does not challenge on appeal. See Fotopoulos v. State, 608 So.2d 784, 793 (Fla.1992); Perry v. State, 522 So.2d 817, 820 (Fla.1988) (contemporaneous conviction for armed robbery unquestionably warranted finding that murder was committed during course of robbery). The record contains competent, substantial evidence to support the trial court's findings regarding these aggravators, and we find no error in the trial court's ruling that each aggravator be considered separately. See Preston v. State, 607 So.2d 404 (Fla. 1992).
In the last part of this claim, Cole contends that the trial court erred in its consideration of the mitigating evidence. The trial court classified the nonstatutory mitigation into three categories: (1) disparate treatment of the codefendant; (2) mental incapacity; and (3) deprived childhood. With respect to the disparate treatment, we agree with the trial court's conclusion that since Cole was the dominant actor and the one who committed the actual murder, the codefendant's life sentence was not a mitigating factor. See Hayes v. State, 581 So.2d 121, 127 (Fla.1991) (disparate treatment of codefendant is justified when defendant is more culpable participant in crime).
In the challenges to the other two categories of nonstatutory mitigation, Cole argues that the trial court erred in its weighing of this evidence. Deciding the weight to be given a mitigating circumstance is within the trial court's discretion, and a trial court's decision is subject to the abuse-of-discretion standard. See Blanco v. State, No. 85,118, ___ So.2d ___ (Fla. Sept. 18, 1997). In the sentencing order, the trial court detailed the evidence presented regarding each circumstance proposed, found each *853 of these nonstatutory mitigators to exist, and afforded them the weight which the court found was appropriate. Consequently, we find Cole's reliance on Nibert v. State, 574 So.2d 1059 (Fla.1990), to be misplaced. Unlike the instant case, in Nibert, the trial court failed to find and weigh nonstatutory mitigation, which was reasonably proven, that the defendant suffered from an abused childhood.[5] We thus find no error.[6]
Cole frames his issue four as a proportionality issue. After considering and rejecting his contentions in respect to aggravating and mitigating circumstances, we have performed our own proportionality review based upon the entire record. We conclude under that proportionality review that imposition of the death penalty is warranted.
In his next issue, Cole contends the trial court erred in denying a motion for mistrial. During its case-in-chief, the State called Mary Gamble, who lived in the trailer which Cole and Paul went to after leaving Pam in the forest on Saturday night. Prior to giving her testimony, Gamble was instructed by the trial court not to mention Cole's prior criminal record. On direct examination, the State asked Gamble about the circumstances surrounding her seeing several pieces of paper with John Edwards' name on them. In response to a question about how she came to see a receipt for a sleeping bag with John's name on it, Gamble stated, "I was nosey and knew some history on K.C., so I decided to go outside and look at the tag on the car." Defense counsel objected and argued that by using "history," Gamble was clearly referring to his prior criminal history. Counsel then requested a mistrial. The State responded that the reference would not have that connotation to the ordinary person and that this response was not intentionally elicited. The trial court denied the motion for mistrial but agreed to give a curative instruction. Defense counsel denied the offer, stating that he did not want to heighten the error. We do not agree with Cole's contention that the denial of the motion for mistrial on these facts was reversible error.
A ruling on a motion for mistrial is within the sound discretion of the trial court. See Power v. State, 605 So.2d 856, 861 (Fla.1992). A motion for mistrial should be granted only when it is necessary to ensure that the defendant receives a fair trial. Id. Based upon our review of the record, we agree that the reference was isolated and inadvertent and was not focused upon. See Merck v. State, 664 So.2d 939, 941 (Fla.1995). Since this remark was not so prejudicial as to require reversal, we hold that the trial court did not abuse its discretion. See generally Ferguson v. State, 417 So.2d 639, 642 (Fla. 1982).
In issue six, Cole argues that the trial court erred in denying his motion for change of venue. Cole filed this motion before the trial began, arguing that the pretrial publicity was so pervasive that Cole could not receive a fair trial. The trial court deferred ruling on the motion until after voir dire. The parties then agreed upon a procedure through which the court would first read the venire the indictment and ask general questions. Thereafter, the venire would be placed in the jury room, and each juror would be brought into the courtroom individually to be questioned about his or her exposure to publicity about the case. The jurors who were not struck for cause were brought in collectively and asked further questions by the attorneys. After the jury was selected, the trial court denied Cole's renewed motion for change of venue.
The test for determining whether to grant a motion for change of venue is
whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely upon the evidence presented in the courtroom. *854 Manning v. State, 378 So.2d 274, 276 (Fla. 1979). A motion for change of venue is addressed to the trial court's discretion and will not be overturned on appeal absent a palpable abuse of discretion. See Davis v. State, 461 So.2d 67, 69 (Fla.1984). We find no such abuse of discretion in this case. Rolling v. State, 695 So.2d 278 (Fla.1997). The record shows that throughout the voir dire, the trial court readily excused jurors who stated that they had formed an opinion as to the defendant's guilt or would not be able to base a decision solely on the evidence presented at trial. The record demonstrates that the members of Cole's venire did not possess such prejudice or extensive knowledge of the case as to require a change of venue. Moreover, the record shows that Cole was not prejudiced from striking any undesirable juror or by any knowledge the jurors may have possessed. Accordingly, we find this claim without merit.
Turning to issue seven, Cole challenges the trial court's decision to allow the introduction of several photographs. At trial, Cole contended that several photographs introduced through the testimony of a police officer[7] and the medical examiner[8] were duplicative and unduly prejudicial. Prior to their introduction, the State proffered these photographs for the trial court's viewing. The trial court determined that each of the photographs was relevant and not duplicative. A trial court's decision on the introduction of photographic evidence will not be overturned on appeal unless there is a clear showing of an abuse of discretion. Pangburn v. State, 661 So.2d 1182, 1187-88 (Fla. 1995). We approve the procedures which the trial court followed in determining the admissibility of the photographs. Based on our review of the record concerning this issue, we find no abuse of discretion.
In his next issue, Cole argues that the trial court erred in denying his motion to suppress evidence seized following his warrantless arrest. At the hearing on the motion to suppress, Detective Sowder testified that he met with Pam Edwards on Sunday February 20, 1994. She described the entire criminal episode and provided Sowder with a detailed description of the perpetrators. She described Cole as being about thirty-six years old, five feet six inches tall, and approximately 200 pounds. He had strawberry blonde hair, thin on top and curly around the collar, and he wore a beard. He was wearing a utility cap, a black and blue flannel shirt, a black T-shirt with gold writing, black jeans, and a belt with the initials "K.C." on it. He also had several tattoos on his right forearm. Pam told police that he had a knife and a scabbard on his hip. She described Paul as being in his late teens, approximately five feet eight inches tall, and 155 pounds. He had shoulder-length brown hair with a goatee. He was wearing a black T-shirt with writing on it, "work boot hiking boots," and had an injured left hand. Pam's descriptions led to police sketches of the two, and the police sent out a "be-on-the-lookout" (BOLO) order for the perpetrators and for John Edwards' blue Geo Metro automobile.
Additionally, Officer Bibb testified that he went to the crime scene that Sunday and was briefed on what happened and given a description *855 of the two perpetrators. He met with Pam later that night and was told that Paul had a chipped tooth, wore an earring, and wore leggings and shoes together. When Bibb arrived at work on Monday morning, he received information that the Geo Metro was found in a parking lot near a Napa store and that two men fitting the description were walking behind that store. Officer Bibb then drove to that area, and the woman who called in about the two men told him that the men were walking south. Officer Bibb testified that he then found the two several blocks from the store. Even though their backs were to him, there were several things about the two men which matched the descriptions given the police: the camouflaged clothing, the hair, and the shoes Paul was wearing. Bibb then testified that when he and another officer yelled "police" and the two suspects turned around, their appearance and facial hair matched Pam's description completely. Cole and Paul were instructed to lie on the ground, and Bibb could then see that Cole was wearing a belt with "K.C." on it. Other police officers then arrived at the scene, handcuffed the two, and patted them down. Officers recovered several items, including a knife and several items of John Edwards' personal property including his social security card, a credit card, and an ATM card. After hearing the evidence, the trial court denied the motion to suppress.
On appeal, Cole contends that when he was arrested, the police did not have probable cause or a reasonable suspicion to detain him. While Cole concedes that a witness's detailed description coupled with proximity to time and place of a crime can furnish probable cause to make an arrest, such was lacking here because when officers first encountered Cole, his back was to the officers. Consequently, he argues, the officers could not have known that Cole was the person for whom they were looking. We disagree.
The standard for determining whether a law enforcement officer has probable cause to make a legal arrest is whether the officer has reasonable grounds to believe that the person has committed a felony. Blanco v. State, 452 So.2d 520, 523 (Fla. 1984). When reviewing a trial court's determination of a motion to suppress, an appellate court will look to all of the surrounding facts and circumstances in the light most favorable to sustaining the lower court's ruling. Terry v. State, 668 So.2d 954, 958 (Fla. 1996). In this case, officers had a detailed physical description of Cole and Paul, their clothing, and the crime. As detailed above, when the police were informed that the two were in the area near where the stolen car was found, they located the two and personally observed that the two fit Pam's physical description. Based on these circumstances, we affirm the trial court's order denying the motion to suppress. See State v. Hester, 545 So.2d 493, 494 (Fla. 3d DCA 1989); cf. Carroll v. State, 636 So.2d 1316, 1317-18 (Fla. 1994) (police had reasonable suspicion to detain suspect who was seen walking on deserted highway near victim's abandoned truck).
We similarly find no impropriety in the trial court's ruling on the introduction of an oak walking stick which was purportedly the one Paul carried prior to the attack. The stick was found in the area of the assault and near to where John Edwards' body was found. Pam Edwards testified that it matched the characteristics of the one which Paul carried. The trial court found that the lack of blood or hair found on the stick related to its weight rather than its admissibility. We agree with the trial court that this evidence was relevant and admissible to explain the entirety of the criminal episode. See § 90.402, Fla. Stat. (1993).
We summarily address and reject several of Cole's remaining issues. We find no merit in Cole's issue ten that the trial court erred in failing to provide the jury with several requested instructions in both the guilt and penalty phases of the trial. Similarly, we find no merit to Cole's issue eleven that the trial court erred in allowing the State to proceed on both a premeditated and felony-murder theory since the jury returned a general verdict of first-degree murder. Lovette v. State, 636 So.2d 1304, 1307 (Fla. 1994). In light of Cole's failure to raise a contemporaneous objection, we find procedurally barred Cole's issue twelve that the trial court erred in its imposition of restitution. Last, we summarily reject Cole's issue *856 fourteen that section 921.141, Florida Statutes (1993), is unconstitutional. See Hunter v. State, 660 So.2d 244, 252 (Fla.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 946, 133 L.Ed.2d 871 (1996).
We have reviewed the record and find that it contains competent, substantial evidence to support Cole's convictions. Accordingly, we affirm each conviction. Additionally, we affirm the death sentence. However, in issue thirteen, Cole contends and the State concedes that the trial court erred in sentencing Cole to a twenty-five year minimum mandatory sentence for each of the other felony convictions. We therefore remand this case to the trial court to impose an appropriate sentence for each of the remaining convictions for which Cole was adjudicated guilty.
It is so ordered.
KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.
NOTES
[1] The trial court found the following aggravators: (1) Cole had previously been convicted of another felony; (2) the murder was committed during the course of a kidnapping; (3) the murder was committed for pecuniary gain; and (4) the murder was heinous, atrocious, or cruel.
[2] The trial court found and weighed the following nonstatutory mitigators: (1) Cole suffered from organic brain damage and mental illness, slight to moderate weight; (2) Cole suffered an abused and deprived childhood, slight weight.
[3] These issues are: (1) whether the trial court abused its discretion in allowing a portion of Pam Edwards' testimony to be read back to the jury; (2) whether the trial court erred in conducting portions of the trial in the defendant's absence; (3) whether the jury's sentencing recommendation was tainted by improper victim impact testimony; (4) whether the death penalty is proportionate; (5) whether the trial court erred in denying Cole's motion for mistrial after a witness referred to Cole's "history"; (6) whether the trial court erred in denying Cole's motion for change of venue; (7) whether the trial court erred in overruling Cole's objection to the introduction of several photographs; (8) whether the trial court erred in denying Cole's motion to suppress; (9) whether the trial court erred in admitting a stick purported to be the one carried by Paul; (10) whether the trial court erred in failing to adequately instruct the jury; (11) whether the trial court erred in denying Cole's pretrial motions not to allow the State to proceed on both premeditated and felony murder; (12) whether the trial court erred in imposing an order of restitution which included travel expenses for a State witness; (13) whether Cole's sentences on the noncapital offenses are illegal; and (14) whether section 921.141, Florida Statutes (1993), is constitutional.
[4] We also reject Cole's contention that his rights were violated when he was absent from a conference requested by Paul's attorney regarding threats Cole made to Paul. At the time of the hearing, Cole's trial was severed from Paul's trial, and the hearing had only to do with whether Paul's safety required that Paul be moved to another jail. Therefore, Cole's contention is meritless. In addition, we find meritless Cole's blanket assertion that he was prejudiced by apparently not being present at numerous unidentified status conferences.
[5] In Nibert, the trial court found the physical and psychological abuse of the defendant's youth to be "possible" mitigation but dismissed the mitigation. Nibert, 574 So.2d at 1062.
[6] We additionally find the standard jury instruction on nonstatutory mitigation was sufficient. See Jones v. State, 612 So.2d 1370, 1375-76 (Fla. 1992).
[7] Specifically, Cole objects to three photographs which show John Edwards' body as found at the crime scene. State's exhibit 20 is a photograph of how Edwards was covered when first found by police; State's exhibit 21 is a close-up photograph of the back of Edwards' head; and State's exhibit 22 is a photograph of Edwards' upper torso from a different angle.
[8] Specifically, Cole claimed that the following photographs were duplicative and unduly prejudicial: State's exhibit 39, a photograph of Edwards' upper torso when the medical examiner first received the body; and State's exhibit 40, a companion photograph of exhibit 39, showing Edwards' lower torso. Cole made the same objection to the following photographs: State's exhibit 45, a photograph of the body after it had been cleaned, which demonstrated a neck wound and injury to the right ear; State's exhibit 56, a close-up photograph of the neck wound showing a superficial cut to the skin on the left side of the neck; and State's exhibit 57, a close-up photograph of the neck wound showing the depth of the cut by showing the thyroid cartilage. Additionally, Cole objected to the introduction of State's exhibit 55, a photograph showing the undersurface of Edwards' scalp and the extent of the bruising to the scalp not visible from the surface. The medical examiner testified that this photograph also demonstrated that Edwards was alive at the time he received these blows to the head.
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443 P.2d 521 (1968)
BERRY REFINING COMPANY, a Corporation, and Roy Rowland, Appellants (Defendants below),
Butane Power & Equipment Company, a Corporation, and Marion A. Wales (Defendants below),
v.
Shirley PINSKY, Appellee (Plaintiff below).
BUTANE POWER & EQUIPMENT COMPANY, a Corporation, and Marion A. Wales, Appellants (Defendants below),
Berry Refining Company, a Corporation, and Roy Rowland (Defendants below).
v.
Shirley PINSKY, Appellee (Plaintiff below).
Shirley PINSKY, Appellant (Plaintiff below),
v.
BUTANE POWER & EQUIPMENT COMPANY, a Corporation, and Marion A. Wales, Appellees (Defendants below),
Berry Refining Company, a Corporation, and Roy Rowland (Defendants below).
Nos. 3637, 3640, 3642.
Supreme Court of Wyoming.
July 17, 1968.
Edward E. Murnane of Murane, Bostwick, McDaniel & Scott, Casper, for appellants, Berry Refining Co. and Roy Rowland.
Ernest J. Goppert of Goppert & Fitzstephens, Cody, H.F. Joffe of Scott & Joffe, Worland, Heller & Morris, Chicago, for Shirley Pinsky.
Houston G. Williams of Wehrli & Williams, Casper, for appellants, Butane Power & Equipment Co. and Marion A. Wales.
Before HARNSBERGER, C.J., and GRAY, McINTYRE and PARKER, JJ.
PER CURIAM.
This litigation culminating in three appeals, Nos. 3637, 3640, and 3642, to be discussed herein consecutively, arose out of an automobile-truck accident occurring on August 7, 1959, about 8:30 p.m. on state secondary (Thermopolis to Cody) highway 120, approximately twenty miles north of Thermopolis. In the area of the accident, the road runs generally north and south. Plaintiff was a passenger in the 1959 Rambler automobile owned by her father, Dr. Pasternak. Several days earlier he had had a flat and the tire had not been repaired. Late on the afternoon of August 7 when the left-front tire of the Rambler went down the car was stopped in the center of the southbound lane on the west-traveled portion of the 24-foot-wide, two-lane, oiled highway, and the left-front wheel was jacked up and left standing on the jack. Where the Rambler was stopped there was a solid line going up the hill to the south indicating no passing for traffic going southerly uphill toward Thermopolis. The borrow pit on each side of the road was approximately five and one-half feet deep, the width of the shoulder approximately four feet on each side. Dr. Pasternak was driven to Thermopolis by a passing motorist to take the tire for repairs, and his 28-year-old daughter remained in the car during his absence. *522 The Rambler's lights were either turned on before the doctor left or later by his daughter, who at dusk placed a battery-powered lantern on the shoulder of the road ten to fifteen feet from the car with the beam shining a little above its trunk. (After the accident, a highway patrolman following Dr. Pasternak into Thermopolis observed that the right-rear taillight, not broken by the collision as was the left, was quite dirty, and testified that in pulling up behind the Rambler with his headlights on the car it was hard to determine that the taillight was on.) Sometime after dark the doctor returned to the car in a Berry Refining Company truck, driven by Roy Rowland. Shortly after the Berry company truck stopped and let the doctor out, a truck owned by Butane Power & Equipment Company, driven by Marion A. Wales and traveling in a southerly direction toward Thermopolis on the west portion of the highway, ran into the rear of the Rambler, injuring plaintiff, who on October 25, 1962, filed suit for $250,000 against the Butane company, the driver Wales, the Berry company, and the driver Rowland, service being made on the first three but not on Rowland. Following the trial of the case by jury in November 1964, verdict was rendered in favor of the Butane company, Wales, and the Berry company, and plaintiff filed a motion for new trial, which was granted. Thereafter, service was made on Rowland, and on a change of venue the case was again tried to a jury, which rendered a verdict against the Berry company and Rowland in the sum of $50,000 but found in favor of the Butane company and Wales, judgment being thereafter entered in accordance with the verdict for the amount of $40,500 (plaintiff having theretofore received from her father the sum of $9,500 for a covenant not to sue him on any claim arising out of the accident). Subsequently plaintiff moved for a new trial of the matters at issue between her and the Butane company and Wales, but the motion was denied.
The Berry company and its driver Rowland in Case No. 3637 appeal from the final verdict and judgment entered against them and also claim error in the granting of the second trial. In Case No. 3640 the Butane company and its driver Wales challenge the propriety of the order granting the new trial. Plaintiff Pinsky in Case No. 3642 appeals from the order entered after the second trial denying her motion for a new trial of the matters at issue between her and the Butane company and Wales and from the portion of the judgment in favor of that company and its driver.
Berry Company and Rowland Appeal Case No. 3637
The judgment is affirmed by an equally divided court.
Butane Company and Wales Appeal Case No. 3640
The judgment is affirmed by an equally divided court.
Pinsky Appeal Case No. 3642
In her appeal from the verdict and judgment in favor of defendants Butane and Wales, plaintiff first contends Wales' evidence proved that the negligence of the two contributed to the causing of the accident and the resulting injury to plaintiff. In so doing she details facets of the testimony, which according to her reasoning substantiate this position. Without adverting to the various aspects which she thus *523 emphasizes, we conclude that her persuasive arguments relate to factual matters which might with good effect have been pressed before the jury to influence their interpretation of the facts, but they fail to show any error in law for which this court could grant relief. It is axiomatic in this jurisdiction that the evidence most favorable to the prevailing party must be considered, that every favorable inference be given to it, and that if it is sufficient the determination of the trier of fact will not be disturbed. We find no evidence from which we could say as a matter of law that Wales, the driver of the Butane truck, was negligent. Plaintiff makes a very considerable effort to bring the instant controversy within the rules of some previous Wyoming cases to the general effect that the driver whose vision is obscured or who has no control of his vehicle must immediately stop or reduce the speed of his vehicle so as to have it under control until the visibility is restored or the condition removed. We see no applicability in the cases she cites, Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309, where a snow-plow obscured a snow removal truck with which a motorist collided; Gamet v. Beazley, 62 Wyo. 1, 159 P.2d 916, where there was a heavy fog at night; or Pierce v. Bean, 57 Wyo. 189, 115 P.2d 660, where the road was very icy.
Plaintiff's argument that she was not contributorily negligent and assumed no risks can for the purposes of this discussion be adopted since the jury which resolved the conflict between her and defendants Butane and Wales was the same one which found the driver of the other truck involved to have been negligent and rendered a verdict against him and his employer. The various extravagant arguments of plaintiff on this point are misplaced and cannot be approved here when they relate only to an interpretation of the facts.
An additional contention of error urged by plaintiff is that the trial jury acted in total disregard of Butane and Wales' evidence against themselves when it found in favor of her and against Rowland and the Berry company and simultaneously found against her and in favor of Wales and Butane, thereby showing their confusion or improper motivation. She points out her exceptions to Instruction 3, which purported to outline plaintiff's claims and the respective defendants' denials and defenses, to Instruction 4, which defined the issues in the case, and Instruction 8, which discussed the assumption of risk and stated that the burden of proving this as a defense was upon the defendants. She says that the jury was by these instructions, which contained repetitions unfavorable to her, overly impressed with the continuing suggestion that she might have assumed some risk by remaining in the car until it was struck by the Butane truck, which behavior would bar her recovery.
We have carefully reviewed these instructions as well as two instructions which plaintiff says might have ameliorated the situation as far as she was concerned but do not find the court to have committed any error in its rulings regarding them. Neither do we consider that the reasons advanced as error in this aspect of the case warrant the quoting of either those given or rejected. The criticisms directed against the instructions do not stem from any categorical condemnation of the given instructions per se or the propriety of those refused, but rather argue each in the light of what the evidence showed, and it is our view that the jury was fairly and sufficiently advised of the matters which they should consider in resolving the controversy.
The judgment of the trial court is affirmed.
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216 Cal.App.3d 79 (1989)
264 Cal. Rptr. 319
MARY MENINGA et al., Plaintiffs and Appellants,
v.
RALEY'S, INC., et al., Defendants and Respondents.
Docket No. F010715.
Court of Appeals of California, Fifth District.
November 29, 1989.
*81 COUNSEL
Altman, Collins & Gross and Malcolm D. Gross for Plaintiffs and Appellants.
Barrett, Penney & Byrd and Herbert Fried, Jr., for Defendants and Respondents.
[Opinion certified for partial publication.[*]]
OPINION
PETTITT, J.[*]
STATEMENT OF FACTS
Plaintiffs Mary Meninga and William Meninga appeal from a judgment of involuntary dismissal (Code Civ. Proc., § 581, subd. (f)(1)). The judgment followed the trial court's order sustaining a demurrer to plaintiffs' second amended complaint without leave to amend. Plaintiffs had alleged causes of action for employment discrimination, defamation, intentional infliction of emotional distress and loss of consortium. The court found workers' compensation was the plaintiffs' exclusive remedy.[1]
The following is a summary of the allegations contained in the second amended complaint:[2]
First Cause of Action Employment Discrimination
Plaintiff Mary Meninga was employed at two Raley's stores, owned by defendant Raley's, Inc., in Modesto between February 1976 and November 1985. During this period she experienced harassment at the hands of Raley's employees and managers.
In 1976, an assistant manager instructed an employee to announce over the store's loud speaker "`All right you stupid bitches, get your asses up *82 front cause [sic] we['re] closing this place up.'" The announcement was directed at plaintiff and another female employee.
In 1977 a Raley's store manager and the employer's personnel department denied her pregnancy leave.
From late spring 1984 until the time she became disabled, defendant Ralph Boisa, a manager in one of the two stores in question, continually harassed and intimidated plaintiff by referring to her as a "`bitch.'" He also told her: "`[W]omen should not work in the grocery business and if they do, they should only be allowed to work part time.'"
Defendant Raley's, Inc., chose to do nothing when plaintiff reported these incidents.
Defendant Boisa and another store manager, defendant Wayne Clemens, also condoned and encouraged other employees' mistreatment of plaintiff. In March 1985, a head clerk in one of the stores said in front of plaintiff, "`Why is it this office only smells like fish when Mary is here.'" The clerk uttered the comment in a sexually degrading and offensive manner to refer to feminine body odor. The following May, an assistant store manager repeatedly asked plaintiff to go to a party with him. When she refused, he became very abrasive toward her. He also sprayed "`static cling'" on plaintiff's buttocks in a degrading and offensive manner and threatened to assault her.
Plaintiff was repeatedly told defendant Boisa did not like working with women and she "had better" do everything he said. Defendant Boisa had directed others to pass these comments on to plaintiff.
Last, during November 1985, defendant Clemens told plaintiff he would not hire women with children in the future because he had to make special arrangements for them. He also stated he did not hire plaintiff, referring to the fact plaintiff was female and had small children.
As a result of such conduct, plaintiff experienced severe emotional problems. She felt forced to leave her employment in November 1985, at which time she was hospitalized, according to the record. Since then she has been unable to perform her duties at the stores. Plaintiff filed a claim with the Fair Employment and Housing Commission and ultimately received a "right to sue" letter.
*83 Second Cause of Action Defamation
In early 1986, after plaintiff Mary Meninga left Raley's workplace, defendants Clemens and Boisa told store employees "`Mary Meninga has completely lost her mind, she has gone crazy, but then she always was crazy.'" A bookkeeper for the chain also repeated remarks made by defendant Clemens to the effect "plaintiff was totally insane and [would] be institutionalized for life." These remarks were unsolicited and made to employees who did not have a need to know.
The remarks injured plaintiff's professional reputation by suggesting she was unable to practice her trade in a proficient manner.
Third Cause of Action Intentional Infliction of Emotional Distress
This cause of action is based on the alleged remarks referred to in the second cause of action.
Fourth Cause of Action Loss of Consortium
Plaintiff William Meninga suffered the loss of plaintiff Mary Meninga's society as a result of the slanderous remarks made by defendants Clemens and Boisa in 1986.
IS THE WORKERS' COMPENSATION ACT THE EXCLUSIVE REMEDY FOR THE EMPLOYMENT DISCRIMINATION, DEFAMATION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION?[3]
I. Introduction
We answer the stated question in the negative as to each cause of action.
(1) In Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [233 Cal. Rptr. 308, 729 P.2d 743], the state Supreme Court held an employee may not pursue a cause of action for intentional infliction of emotional distress against his or her employer and fellow employees when: (a) the alleged misconduct is a normal part of the employment relationship; and (b) the essence of the wrong is a personal physical injury or death thus permitting a remedy under the workers' compensation statutes. Such an action, *84 regardless of its name or technical form, is barred by the exclusive remedy provision under workers' compensation (Lab. Code, § 3601, subd. (a)) if the usual conditions of workers' compensation coverage are satisfied.
(2a) Defendants ask this court to conclude Cole is dispositive in the present case. Because plaintiff alleged she was unable to return to work due to the emotional distress she experienced while in defendant Raley's employ, defendants argue, plaintiff suffers from a work-related disability. Thus, by defendants' reading of Cole, plaintiff's causes of action are barred.
As explained below, Cole, by its own terms, does not necessarily bar employment discrimination actions filed outside the workers' compensation statutes. Consequently, we hold, under the alleged facts of this case, defendants' argument that plaintiff's causes of action are barred by the exclusive remedy provision in Labor Code section 3601, subdivision (a) is erroneous.
II. Employment Discrimination
The Cole court did not address statutory causes of action, but rather only common law causes of action. "We do not decide whether the exclusive remedy provisions of the Labor Code bar causes of action created by statute." (Cole, supra, 43 Cal.3d at p. 157, fn. 9.) As the appellate court in Jones v. Los Angeles Community College Dist. (1988) 198 Cal. App.3d 794, 807 [244 Cal. Rptr. 37], ruled, Cole by its own limitation is not dispositive of claims based on statutory causes of actions, such as the employment discrimination cause of action created by the Fair Employment and Housing Act (FEHA or the Act) (Gov. Code, § 12900 et seq.).[4] Notably, defendants overlook the holding of Jones, to the effect workers' compensation did not bar a FEHA cause of action for employment discrimination based, in that case, on race. However, the Jones court did not go so far as to hold that the principles and distinctions set out in Cole could never apply to alleged employment discrimination causes of action. Likewise, we do not conclude that acts alleged to constitute employment discrimination are thereby inherently insulated from consideration in connection with the exclusive remedies provided under workers' compensation. The Supreme Court in Cole stated: "We have concluded that, when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance *85 resulting in disability. The basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment (former Lab. Code, §§ 3600, 3601), and then the essence of the wrong is personal physical injury or death, the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied. (See Larson, Nonphysical Torts and Workmen's Compensation (1975) 12 Cal. Western L.Rev. 1, 11-13.)
"If characterization of conduct normally occurring in the workplace as unfair or outrageous were sufficient to avoid the exclusive remedy provisions of the Labor Code, the exception would permit the employee to allege a cause of action in every case where he suffered mental disability merely by alleging an ulterior purpose of causing injury. Such an exception would be contrary to the compensation bargain and unfair to the employer." (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160.)
We conclude some deference must be given to the Supreme Court's concerns expressed in Cole even though it did footnote it was not deciding "whether the exclusive remedy provisions of the Labor Code bar causes of action created by statute." Some of our concern arises out of the differing fact situations found in Jones and the instant case. The court in Jones stated: "In the context of the facts of this case, where plaintiff claims that he was forced to suffer racial insults of a coworker and in retaliation for complaining of such treatment was monitored in his work and given more onerous tasks while the White coworker simply stayed away from work, and where he ultimately suffered a knee injury which apparently caused him to become disabled, the application of the exclusivity provision of the Labor Code would in effect result in no recognition of or compensation for the humiliation and other injuries which Jones suffered before his knee injury. A failure to recognize a cause of action under such circumstances also furthers a policy in favor of discrimination in the workplace. Because two separate wrongs are involved, there are no election of remedies or double recovery problems. Moreover, any possible double recovery in the instant case can easily be avoided." (Jones v. Los Angeles Community College Dist., supra, 198 Cal. App.3d at p. 809.)
The plaintiff in Jones first filed two claims with the Workers' Compensation Appeals Board alleging injury to his "emotions (psyche)" due to "repetitive occupational stresses." Each claim covered a different period of time. Slightly over one year later he filed a third claim with the board wherein he claimed injury to his left knee. In the meantime, Jones filed a charge of discrimination with the Department of Fair Employment and Housing (DFEH) in which he claimed racial harassment and other unfair treatment. The DFEH later notified Jones his case was being closed "on the *86 basis of insufficient evidence to prove violation of the statute." Some months later, he filed his complaint in the Superior Court of Los Angeles County alleging race discrimination in employment. Under these facts, the court stated: "We do not read the complaint as alleging plaintiff's emotional injuries will render him disabled, but only that his physical injuries will result in disability. Thus, even were we to find Cole applicable to the instant case, as urged by respondents, we would conclude that they did not meet their burden of proof on summary judgment to establish that the conditions of compensation rendering them subject to the protections of the workers' compensation statutes existed. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 97-98 [151 Cal. Rptr. 347, 587 P.2d 1160].) As expounded in Cole, one of those conditions is that plaintiff's emotional distress caused him disability. The record is bereft of any evidence as to whether plaintiff's disability was caused by his knee injury or by his emotional injuries. Nor is there any evidence establishing whether the workers' compensation benefits paid to plaintiff were on account of his knee injury or for his emotional injuries. In this regard, we find no evidentiary support for the conclusions reached by the trial court, ..." (Jones v. Los Angeles Community College Dist., supra, 198 Cal. App.3d at p. 806, fn. omitted, italics in original.)
In this case there is no claim for a physical injury like the knee in the Jones case. We, therefore, cannot say the record is bereft of any evidence as to whether plaintiff's disability was caused by emotional injuries or purely physical injury. Plaintiff has unquestionably received workers' compensation benefits due solely to emotional injury resulting from the discriminatory treatment she alleges.
We, therefore, recognize that trial courts, in cases such as this, are called upon to make determinations as to whether an employee's claims are based upon true discrimination or are merely employer misconduct in "actions which are a normal part of the employment relationship, ..." (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160.) Likewise, we recognize other concerns, such as possible double recovery, are present.
In FEHA, the Legislature has declared, as a matter of public policy, the need to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination. (§ 12920.)
Section 12920 further provides, in pertinent part: "It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general." The Legislature has gone so far *87 as to identify the opportunity to seek, obtain and hold employment without discrimination, as a civil right. (§ 12921.)
FEHA establishes a comprehensive scheme for combating and eliminating employment discrimination. (Brown v. Superior Court (1984) 37 Cal.3d 477, 485 [208 Cal. Rptr. 724, 691 P.2d 272]; § 12920.) Employment discrimination is broadly defined in section 12940.[5] Particularly relevant to the present case is the section's prohibition of an employer's discrimination against any person in terms, conditions or privileges of employment because of sex.
The state Supreme Court in Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213-214 [185 Cal. Rptr. 270, 649 P.2d 912], described the Act:
"[It] creates a Department of Fair Employment and Housing (Department) (§ 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination (§ 12930). Aggrieved persons may file complaints with the Department (§ 12960), which must promptly investigate (§ 12963). If it deems a claim valid it seeks to resolve the matter in confidence by conference, conciliation, and persuasion. (§ 12963.7.) If that fails or seems inappropriate the Department may issue an accusation to be heard by the Fair Employment and Housing Commission (Commission). (§§ 12965, subd. (a), 12929; see too § 12903.)
"The Commission determines whether an accused employer, union, or employment agency has violated the act. If it finds a violation it must `issue ... an order requiring such [violator] to cease and desist from such unlawful practice and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purpose of this part....' (§ 12970, subd. (a).)
"If no accusation is issued within 150 days after the filing of the complaint and the matter is not otherwise resolved, the Department must give *88 complainant a right-to-sue letter. Only then may that person sue in the superior court `under this part' (§ 12965, subd. (b))." In a civil action under the FEHA, all relief generally available in noncontractual actions, including punitive damages, may be obtained. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 221.)
While FEHA seeks the elimination of discriminatory employment practices, our state's system of workers' compensation, as embodied in the state Constitution (§ 4 of art. XIV) and in Labor Code section 3200 et seq., has a much different goal. Workers' compensation law enforces an employer's liability to compensate workers for injury or disability sustained in the course of their employment, irrespective of the fault of any party. (Cal. Const., art. XIV, § 4.) It is not designed to combat employment discrimination, except in the case of employers who discriminate against industrially injured employees who exercise workers' compensation remedies. (See Lab. Code, § 132a.)
Nevertheless, defendants contend workers' compensation is the exclusive remedy for plaintiff's claim of employment discrimination. They rely on the language of Labor Code sections 3600, subdivision (a), 3601, subdivision (a), and 3602, subdivision (a).[6] Their argument may best be summarized in *89 the following manner: where the conditions of compensation, as defined in Labor Code section 3600, subdivision (a) are present, workers' compensation provides the exclusive remedy. In this regard, they emphasize, through judicially noticed documents below, plaintiff applied for and received workers' compensation benefits due to cumulative stress sustained between November 30, 1984, and November 30, 1985, while she was employed by defendant Raley's.
In addition, they correctly observe none of the exceptions to the exclusive remedy rule, outlined in Labor Code sections 3601, subdivision (b), and 3602, subdivision (b),[7] apply here. Indeed, according to the defendants, the Legislature has failed to except FEHA claims from the exclusive remedy rule of workers' compensation. They note in this regard the 1982 amendments to the Labor Code, inferring the exclusive remedy rule, as it presently exists, is a more recent and, therefore, controlling statement of legislative intent. As defendants see it, the workers' compensation system is plainly unlimited by any other statutory scheme. Thus, the exclusive remedy rule must apply.
At first glance, defendants' argument has some appeal given the exclusive remedy language of Labor Code sections 3601, subdivision (a), and 3602, subdivision (b). However, according to defendants' view of the law, there could never be a civil action for employment discrimination if such discrimination led to disabling emotional distress. This approach would not only render the FEHA cause of action for employment discrimination a non sequitur where disability resulted; it would also make a hollow promise out of the public policy, stated in FEHA, of eliminating employment discrimination. It would then be in an employer's best interest, if he or she practiced employment discrimination, to make conditions so intolerable for an employee and to cause such a level of emotional distress in the employee that the employee could not work as a result. Thus, the employer could avoid civil liability for his or her discriminatory practices.
Nevertheless, the competing arguments and conclusions point up the necessity of recognizing we are dealing with two important legal matrices both designed to protect employees who, in the context of this case, would not have suffered injury but for being employed.
(3) It is a well-established rule of statutory construction that the Legislature does not intend to legislate in contravention of existing public policy. (Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 152 *90 [23 Cal. Rptr. 592, 373 P.2d 640].) Without the most cogent and convincing evidence, a court will never attribute to the Legislature the intent to disregard or overturn a sound rule of policy. (Ibid.) (2b) To adopt the defendants' interpretation would fly in the face of this legislative presumption as far as FEHA is concerned. Moreover, there is no evidence, much less the convincing level of evidence required under Interinsurance Exchange, to read into the exclusive remedy rule an intent to disregard a FEHA cause of action.
The plaintiff's application for and receipt of workers' compensation benefits does not necessarily lend support to defendants' position. Nor should it necessarily foreclose plaintiff's ability to maintain an action under FEHA, since the workers' compensation claim cannot address her employer's liability for employment discrimination. (4) In this regard, another applicable rule of statutory interpretation is that apparent inconsistencies in laws relating to the same general subject should be reconciled if possible. (Tripp v. Swoap (1976) 17 Cal.3d 671, 679 [131 Cal. Rptr. 789, 552 P.2d 749], overruled on other grounds in Frink v. Prod (1982) 31 Cal.3d 166, 180 [181 Cal. Rptr. 893, 643 P.2d 476].) Where two codes are to be construed, they must be regarded as blending into each other and forming a single statute. (Tripp, supra, at p. 679.)
(2c) In Hart v. National Mortgage & Land Co. (1987) 189 Cal. App.3d 1420 [235 Cal. Rptr. 68], the court quoted from Cole, supra, 43 Cal.3d 148, as follows: "`The cases that have permitted recovery in tort for intentional misconduct causing disability have involved conduct of an employer having a "questionable" relationship to the employment, an injury which did not occur while the employee was performing service incidental to the employment and which would not be viewed as a risk of the employment, or conduct where the employer ... stepped out of [his] proper [role]. [Citations.] ...'[8] (Id., at pp. 160-161, italics added.)" (Hart, supra, at p. 1430.)
Footnote 8 of the quoted passage provides: "In Young v. Libbey-Owens Ford Co., supra, 168 Cal. App.3d 1037, the court refused to apply the exclusivity doctrine to the employee's cause of action for emotional distress (with attendant physical and emotional damages) arising from his employer's ratification of a coworker's assault on him even though he had already collected compensation. The court held, `[i]ssues such as causation, which must be litigated in a civil suit, are not addressed in a workers' compensation proceeding....' (Id., at p. 1043.)"
The court in Jones analyzed the matter and concluded because two separate wrongs are involved, there are no election of remedies or double recovery problems. We do not disagree with that conclusion. However, this is not *91 to say difficult questions will not be encountered regarding what may be an employee's sole remedy under certain facts.
This appeal comes to us for determination at the pleading stage. Clearly, the allegations of plaintiff state a cause of action under FEHA for employment discrimination because of sex. Workers' compensation is not her exclusive remedy under the facts alleged, and the trial court erred in sustaining defendants' demurrer to that cause of action.
III., IV.[*]
.... .... .... .... .... .
DISPOSITION
The judgment is reversed. Plaintiffs shall have their costs on appeal.
Ardaiz, Acting P.J., and Dibiaso, 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 III and IV.
[*] Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.
[1] The minute order actually reads: "The Court finds Workman's Compensation to be Plaintiff's exclusive remedy." (Italics added.) Since the court sustained the defendants' demurrer which addressed both the Meningas' causes of action, the reference to "plaintiff's" in the minute order is presumably a clerical error.
[2] Defendants' demurrer in effect admits as true all material factual allegations in the second amended complaint. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal. Rptr. 88, 468 P.2d 216].)
[3] Notably, the opening brief was filed on behalf of both plaintiffs. Yet, plaintiff William Meninga does not challenge the order sustaining the demurrer as to his cause of action for loss of consortium and indeed there is no briefing on the loss of consortium cause of action in the opening brief. He did argue the question of loss of consortium however in his reply brief. Accordingly, all subsequent references to plaintiff should be read to mean plaintiff Mary Meninga.
[4] All statutory references are to the Government Code unless otherwise indicated.
[5] Section 12940 provides in pertinent part: "It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
"(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privileges of employment."
[6] These sections provide in relevant part: "(a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:
"(1) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.
"(2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.
"(3) Where the injury is proximately caused by the employment, either with or without negligence." (§ 3600, subd. (a)(1), (2) & (3).)
"(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases: ..." (§ 3601, subd. (a).)
"(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer, and the fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer." (§ 3602, subd. (a).)
[7] "(b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: ..." (§ 3602, subd. (b).)
[*] See footnote, ante, page 79.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7095
VALETON PRATT, SR.,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:10-cv-00599-RBS-FBS)
Submitted: January 31, 2012 Decided: February 2, 2012
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Valeton Pratt, Sr., Appellant Pro Se. Eugene Paul Murphy,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Valeton Pratt, Sr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and denying relief on his 28 U.S.C. § 2254 (2006)
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) (2006). 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) (2006). 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 Pratt has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
2
before the court and argument would not aid the decisional
process.
DISMISSED
3
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802 N.E.2d 1255 (2003)
345 Ill. App.3d 595
280 Ill.Dec. 734
Bernadette WILLIAMS, Indiv. and as Special Adm'r of the Estate of Robert James Williams, Deceased, Plaintiff-Appellant,
v.
Marianne DAVET and Agnes Hayes, Defendants (Jose Pazhampally and Madden Mental Health Center, Defendants-Appellees).
No. 1-02-1138.
Appellate Court of Illinois, First District, Third Division.
December 31, 2003.
*1257 Barbara J. Clinite, Chicago, for Appellant.
Lisa Madigan, Attorney General, Paul Racette, Assistant Attorney General, Chicago, for Appellees.
Justice HALL delivered the opinion of the court:
The plaintiff, Bernadette Williams, special administrator of the estate of Robert James Williams, deceased, appeals from an order of the circuit court of Cook County dismissing her complaint for damages against the defendants, Jose Pazhampally and Madden Mental Health Center (Madden).[1]
On May 1, 2001, the plaintiff refiled her complaint for damages, alleging the following facts.[2]
On June 16, 1996, Robert James Williams (Robert) was arrested for disorderly conduct. While in police custody, Robert attempted to injure himself by ramming his head into the cell bars and trying to hang himself. Robert was taken to Christ Hospital, where police officers signed a certificate setting forth their observations of Robert for purposes of a petition for involuntary admission. After being examined by a physician and a psychiatrist at Christ Hospital, a petition for involuntary admission was completed and signed. While at Christ Hospital, Robert's behavior required the use of physical restraints.
The physician at Christ Hospital contacted Mr. Pazhampally, a social worker, at Madden, and requested that Robert be transferred to Madden. Mr. Pazhampally, acting on behalf of Madden, accepted the transfer. Robert was transported to Madden by ambulance, along with copies of his records from Christ Hospital and the petition and certificates for involuntary admission.
Mr. Pazhampally reviewed Robert's history, which included information that he had managed to free himself from one restraint. Robert also admitted to defendants Davet and Hayes that he had recently started using crack cocaine. However, Robert was released to the plaintiff's custody without treatment. The plaintiff was unaware that Robert had attempted to hang himself and was not warned of the risk of suicide.
After returning home, Robert hanged himself, resulting in his death on June 21, 1996.
On July 18, 2001, Mr. Pazhampally filed a motion to dismiss pursuant to section 2-1010 of the Code of Civil Procedure (735 ILCS 5/2-1010 (West 2000)), supported by his affidavit. On October 18, 2001, the circuit court denied Mr. Pazhampally's section 2-1010 motion to dismiss.
On December 12, 2001, Mr. Pazhampally and Madden filed an amended motion to dismiss pursuant to section 2-619(a)(1) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(1) (West 2000)). The motion alleged that the complaint should be dismissed as to them because the doctrine of sovereign immunity barred suits against the State and its agents and, therefore, the circuit court lacked subject matter jurisdiction.
On March 22, 2002, the circuit court granted the motion to dismiss on the basis that it lacked subject matter jurisdiction. The circuit court also made a finding pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) that there was no just *1258 reason to delay enforcement, appeal, or both enforcement and appeal of its order.
The plaintiff filed a timely notice of appeal.
The issues raised on appeal are whether the circuit court erred in dismissing the plaintiff's complaint as to Madden and Mr. Pazhampally pursuant to the doctrine of sovereign immunity and whether the circuit court erred in denying Mr. Pazhampally's section 2-1010 motion to dismiss.
ANALYSIS
I. Standard of Review
Motions to dismiss under section 2-619 of the Code are reviewed de novo. Owens v. McDermott, Will & Emery, 316 Ill. App.3d 340, 344, 249 Ill.Dec. 303, 736 N.E.2d 145, 150 (2000).
II. Discussion
Section 2-619(a)(1) provides in pertinent part as follows:
"(a) Defendant may, within the time for pleading, file a motion for dismissal of the action * * * upon any of the following grounds. * * *
(1) That the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction." 735 ILCS 5/2-619(a)(1) (West 2000).
A. Madden
The plaintiff contends that the circuit court erred in determining that the doctrine of sovereign immunity required that Madden be sued in the Court of Claims.
The Court of Claims Act (the Act) (705 ILCS 505/1 et seq. (West 2000)) established a court of claims to serve as a forum for actions against the State. Healy v. Vaupel, 133 Ill.2d 295, 307, 140 Ill.Dec. 368, 549 N.E.2d 1240, 1246 (1990).
Section 8(d) of the Act provides in pertinent part as follows:
"The court [of claims] shall have exclusive jurisdiction to hear and determine the following matters:
* * *
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit, and all like claims sounding in tort against the Medical Center Commission, the Board of Trustees of the University of Illinois, the Board of Trustees of Southern Illinois University, the Board of Trustees of Chicago State University, the Board of Trustees of Eastern Illinois University, the Board of Trustees of Governors State University, the Board of Trustees of Illinois State University, the Board of Trustees of Northeastern Illinois University, the Board of Trustees of Northern Illinois University, the Board of Trustees of Western Illinois University, or the Board of Trustees of the Illinois Mathematics and Science Academy * * *." 705 ILCS 505/8(d) (West 2000).
The plaintiff contends that since Madden is not listed in section 8(d), the legislature did not intend for the Court of Claims to have exclusive jurisdiction over tort actions involving Madden. The plaintiff then reasons that the circuit court's dismissal order as to Madden would be proper only if Madden could demonstrate that the plaintiff's complaint was only nominally against Madden and, in effect, was an action against the State.
Sovereign immunity in Illinois exists pursuant to statute and mandates that the State or any department of the State cannot be sued in its own court or any other court without its consent. Association *1259 of Mid-Continent Universities v. Board of Trustees of Northeastern Illinois University, 308 Ill.App.3d 950, 952, 242 Ill.Dec. 526, 721 N.E.2d 805, 807 (1999). The legislature enacted the State Lawsuit Immunity Act (Lawsuit Immunity Act) (745 ILCS 5/1 (West 1998)), which provides that the State shall not be made a defendant or party in any court except as provided in the Court of Claims Act. Association of Mid-Continent Universities, 308 Ill.App.3d at 952, 242 Ill.Dec. 526, 721 N.E.2d at 807.
Generally, an agency of the State may not be a defendant in a circuit court action because State agencies are considered to be arms of the State itself, which is immune from suit in the circuit court. Rockford Memorial Hospital v. Department of Human Rights, 272 Ill.App.3d 751, 756, 209 Ill.Dec. 471, 651 N.E.2d 649, 654 (1995). However, the rule is not absolute: "`The determination that a claim is one against the State does not depend upon the State agency being named as a party. [Citation.] The determination depends instead on the issues involved and the relief sought.' [Citations.]" Rockford Memorial Hospital, 272 Ill.App.3d at 756-57, 209 Ill.Dec. 471, 651 N.E.2d at 654. In determining whether sovereign immunity applies to a particular case, substance takes precedence over form. Rockford, 272 Ill.App.3d at 757, 209 Ill.Dec. 471, 651 N.E.2d at 654.
Sovereign immunity exists only if (1) the defendant is an arm of the State; (2) the plaintiff's action could subject the State to liability; and (3) no exceptions to the doctrine exist. C.J. v. Department of Human Services, 331 Ill.App.3d 871, 876-77, 264 Ill.Dec. 835, 771 N.E.2d 539, 545 (2002).
The fact that Madden was not listed in section 8(d) does not deprive it of the protection of sovereign immunity. Madden is a facility under the jurisdiction of the Department of Human Services and is State operated. See 20 ILCS 1705/4 (West 2000). Therefore, Madden is an arm of the State. See also Jinkins v. Lee, 337 Ill.App.3d 403, 405, 271 Ill.Dec. 720, 785 N.E.2d 914, 916 (2003), (referring to Madden as a "State of Illinois mental health care facility"), appeal allowed 204 Ill.2d 660, 275 Ill.Dec. 76, 792 N.E.2d 307 (2003).
Madden is not a nominal defendant in this case. The plaintiff's complaint alleged that Madden, acting through its agents, the other named defendants, committed tortious acts resulting in the death of the plaintiff's decedent. The complaint sought damages from Madden, as well as from the individual defendants, and therefore constitutes a present claim that could subject the State to liability. Compare C.J., 331 Ill.App.3d at 877, 264 Ill.Dec. 835, 771 N.E.2d at 546 (complaint seeking injunctive relief was not a "present claim").
Finally, there are no applicable exceptions to the rule in this case. Compare Healy, 133 Ill.2d at 308, 140 Ill.Dec. 368, 549 N.E.2d at 1247 (sovereign immunity affords no protection when it is alleged that the State's agent acted in violation of statutory or constitutional law or in excess of his authority, and in those instances, an action may be brought in circuit court).
We conclude that sovereign immunity bars the plaintiff from suing Madden in this case. Therefore, the circuit court lacked subject matter jurisdiction and correctly granted Madden's motion to dismiss. See Swope v. Northern Illinois Gas Co., 221 Ill.App.3d 241, 243, 163 Ill.Dec. 665, 581 N.E.2d 819, 821 (1991) (where a trial court lacked subject matter jurisdiction due to the doctrine of sovereign immunity, it could not order a transfer to the Court *1260 of Claims but could only dismiss the action).
B. Mr. Pazhampally
The plaintiff contends that, even though he is a state employee, Mr. Pazhampally is not entitled to the protection of sovereign immunity because his acts violated the same duty imposed on all persons who perform those acts rather than by virtue of his state employment.
We need not reach this argument because we conclude that the circuit court erred when it denied Mr. Pazhampally's motion to dismiss pursuant to section 2-1010 of the Code.
Section 2-1010 of the Code provides in pertinent part as follows:
"(a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, a party may, in lieu of answering or otherwise pleading, file an affidavit certifying that he or she was not directly or indirectly involved in the occurrence or occurrences alleged in the action. In the event such an affidavit is filed, the court shall order the dismissal of the claim against the certifying party, except as provided for in subparagraph (b).
(b) Any party may oppose the dismissal or move to vacate the order of dismissal and reinstate the certifying party, provided he or she can show that the certifying party was directly or indirectly involved in the occurrence or occurrences alleged in the action." 735 ILCS 5/2-1010 (West 2000).
According to his affidavit, filed in support of his section 2-1010 motion to dismiss, Mr. Pazhampally's only contact with Robert was to log in his arrival and to have him wait until the social worker from Proviso Family Services, an outside agency, could see him. He stated that he did not have any decision-making authority with regard to the involuntary or voluntary admission of Robert to Madden and that he did not treat, diagnose or assess Robert and did not "deflect" Robert from admission to Madden.
The plaintiff filed a response to the section 2-1010 motion and attached Mr. Pazhampally's deposition, which had been taken prior to the dismissal of the case in 1998. Relying on the deposition testimony, the plaintiff maintained that the following actions established Mr. Pazhampally's involvement in this case: he received information about Robert from Christ Hospital; he obtained the necessary documentation, which was then turned over to the medical director who approved the transfer; he notified Christ Hospital to transfer Robert; and he called another individual to do an assessment of Robert.
The circuit court denied Mr. Pazhampally's section 2-1010 motion to dismiss. No cross-appeal was filed in this case. However, the denial of a motion to dismiss is not, of itself, a final appealable order. Landmarks Preservation Council of Illinois v. City of Chicago, 125 Ill.2d 164, 174, 125 Ill.Dec. 830, 531 N.E.2d 9, 13 (1988). The finding of the circuit court adverse to the appellee does not require that the appellee cross-appeal if the judgment was not, at least in part, against him. Landmarks Preservation Council of Illinois, 125 Ill.2d at 174, 125 Ill.Dec. 830, 531 N.E.2d at 13.
In order to resolve this issue, we must construe the language of the statute and therefore, our review is de novo. Revolution Portfolio, LLC v. Beale, 332 Ill.App.3d 595, 600, 266 Ill.Dec. 236, 774 N.E.2d 14, 19 (2002) (issues as to statutory construction are reviewed de novo).
*1261 The gist of the plaintiff's action in this case is that Mr. Pazhampally and Madden were negligent in failing to obtain a proper history and in not admitting Robert to Madden. However, a review of Mr. Pazhampally's deposition reveals that his role in this case was limited to receiving documents and relaying the information that he received. He was not responsible for and was not involved in any decision not to admit Robert to Madden.
In the exercise of statutory construction, the court's primary task is to ascertain and effect the intent of the legislature. Beale, 332 Ill.App.3d at 603, 266 Ill.Dec. 236, 774 N.E.2d at 21-22. Our inquiry must always begin with the language of the statute, which is the surest and most reliable indicator of the legislative intent. Beale, 332 Ill.App.3d at 603, 266 Ill.Dec. 236, 774 N.E.2d at 22. The language of a statute must be given its plain and ordinary meaning, and where the language is unambiguous, we have no occasion to resort to statutory aids of construction. Beale, 332 Ill.App.3d at 603, 266 Ill.Dec. 236, 774 N.E.2d at 22.
Section 2-1010 refers to "direct[ ] or indirect []" involvement in the "occurrence or occurrences alleged in the action." 735 ILCS 5/2-1010(a) (West 2000). An occurrence is defined as "[s]omething that happens or takes place." Black's Law Dictionary 1107 (7th ed.1999).
The "occurrence" in this case was the decision not to admit Robert to Madden. In his deposition, Mr. Pazhampally described his role as follows:
"I have to take information from the referred [sic ] agencies and provide those [sic] information to the medical doctor and the psychiatrist.
BY MS. CLINITE (the plaintiff's attorney):
Q. That was the end of your role, then?
When you had finished getting the information back from the doctor and contacted the other hospital, then that was the end of your involvement?
A. Yes."
Later in his deposition, Mr. Pazhampally testified that he had nothing to do with the intake assessment of Robert, that he never spoke to Robert because there was no need to do so and that he never spoke to members of Robert's family or the police. His conversations with the staff at Madden and at Christ Hospital were limited to receiving and forwarding information and contacting a staff member to do the psychological assessment.
Based on his deposition testimony, Mr. Pazhampally was not involved in the decision not to admit Robert to Madden, either directly or indirectly.
We conclude that the circuit court erred when it denied Mr. Pazhampally's section 2-1010 motion. In light of our decision, we need not address whether the public officials' immunity doctrine applied to Mr. Pazhampally.
For all of the foregoing reasons, we affirm the granting of the section 2-619 motion to dismiss as to Madden. We reverse the denial of Mr. Pazhampally's section 2-1010 motion to dismiss and remand the cause to the circuit court for entry of an order granting Mr. Pazhampally's section 2-1010 to dismiss.
Affirmed in part and reversed in part; cause remanded with directions.
SOUTH and KARNEZIS, JJ., concur.
NOTES
[1] The defendants Davet and Hayes are not parties to this appeal.
[2] The plaintiff's original complaint was dismissed for want of prosecution.
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543 F.2d 754
Colemanv.Carlson*#
No. 76-2996
United States Court of Appeals, Fifth Circuit
11/23/76
1
N.D.Ga.
AFFIRMED
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
# Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.
| {
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} |
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3524
THE ESTATE OF SWANNIE HER, et al.,
Plaintiffs-Appellants,
v.
CRAIG HOEPPNER,
Parks Director for the
City of West Bend, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-CV-1015 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED MAY 29, 2019 — DECIDED SEPTEMBER 26, 2019
____________________
Before KANNE, SYKES, and BRENNAN, Circuit Judges.
SYKES, Circuit Judge. A June afternoon in Wisconsin took a
tragic turn when six-year-old Swannie Her was found
unresponsive on the bottom of a man-made swimming pond
operated by the City of West Bend. She never regained
consciousness and died a few days later.
2 No. 18-3524
Swannie’s estate, her mother, and her siblings filed suit
alleging that she died as a result of federal constitutional and
state-law violations by the West Bend Parks Director, the
seven lifeguards who were on duty, and the City. The consti-
tutional claim arises under 42 U.S.C. § 1983 and alleges a
deprivation of life without due process in violation of rights
secured by the Fourteenth Amendment. The theory of the
claim rests on two contentions: (1) the City’s swimming
pond is a state-created danger and (2) the defendants acted
or failed to act in a way that increased the danger. A magis-
trate judge entered summary judgment for the defendants,
ruling that the evidence is insufficient to permit a reasonable
jury to find a due-process violation premised on a state-
created danger. The judge relinquished jurisdiction over the
state-law claims, setting up this appeal.
We affirm. Liability for injury from a state-created danger
is an exception to the general rule that the Due Process
Clause confers no affirmative right to governmental aid.
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,
196 (1989). Our caselaw construes this exception narrowly,
and the judge correctly concluded that this case falls outside
its boundaries. No reasonable jury could find that the de-
fendants created a danger just by operating a public swim-
ming pond or that they did anything to increase the danger
to Swannie before she drowned. Nor was their conduct so
egregious and culpable that it “shocks the conscience,” a
necessary predicate for a court to find that an injury from a
state-created danger amounts to a due-process violation.
I. Background
The City of West Bend owns and operates Regner Park, a
large public area with several recreational options. During
No. 18-3524 3
the summer months, patrons can cool off in the park’s man-
made swimming pond for a small fee. Like other bodies of
water with organic floors, the Regner Park pond is murky.
Visibility is limited to roughly six inches below the surface,
and swimmers more than two feet from shore cannot see the
bottom.
The pond is divided into three zones: Zone 1, the general
swimming area, ranges in depth up to a maximum of five
feet. Zone 2, which features a diving raft, is the center of the
pond and reaches a depth of fifteen feet. And Zone 3, the
children’s play area, is no more than three-feet deep. Ropes
and buoys cordon off the three zones; they also mark points
where the water gets deeper. Swimmers wishing to enter
Zone 2—or otherwise enter water deeper than their arm-
pits—must pass a swim test, at which point they receive a
special wristband signifying that they are permitted to do so.
Lifeguards employed by the City patrol the pond. Each
lifeguard is certified in basic lifeguarding practices and
receives pond-specific instruction. They also receive the West
Bend Aquatic Manual & Emergency Response Plan, a guide-
book to preventing accidents at the pond. Most importantly,
the manual urges lifeguards to keep close watch on inexpe-
rienced swimmers and small children. The parties debate
whether those surveillance responsibilities are “mandatory,”
as the plaintiffs characterize them, or if lifeguards “[a]re
allowed to use their judgment and discretion when scanning
the water to determine where to focus their attention,” as the
defendants maintain.
On June 11, 2016, the Her family—mother Connie, her
fiancé, and nine of her ten children—gathered in Regner
Park to celebrate a relative’s second birthday. The party took
4 No. 18-3524
place at a picnic area near the swimming pond. Young
Swannie arrived at roughly 5 p.m. that afternoon with two of
her siblings. After greeting family and friends, she donned
her bathing suit and obtained her mother’s permission to
swim in the pond. Connie did not accompany Swannie but
rather asked two of her older children—Evangelin, age 9,
and Thvon, age 14—to keep an eye on their younger sister.
Swannie received a general admission wristband, but she
never took the swim test required to swim in water above
her armpits.
The Her children began swimming in Zone 3. At some
point Swannie said she wanted to go see Ekin, another
sibling, in a deeper part of the pond. No one knows precisely
when or where Swannie went beneath the surface; neither
the seven lifeguards on duty nor any member of the Her
family or anyone else at the pond witnessed it. But at
5:55 p.m. a man swimming in Zone 2 discovered Swannie
unresponsive at the bottom of the pond. He carried her out
of the water and called for help. The lifeguards immediately
called 911 and began resuscitation efforts. Emergency medi-
cal responders took Swannie to a nearby hospital, but she
never regained consciousness and died several days later.
Swannie’s estate, together with Connie and her surviving
children (collectively “the Estate”), filed this lawsuit the
following year. The defendants are Parks Director Craig
Hoeppner, the City and its insurer, and the seven lifeguards
who were on duty that day. The complaint seeks damages
under § 1983 for violation of Swannie’s Fourteenth Amend-
ment right to due process. The claim rests on the doctrine of
“state-created danger”: the Estate claims that the defendants
created and operated a dangerously murky pond and failed
No. 18-3524 5
to follow established lifeguarding rules, increasing the
danger to Swannie. The suit also raised state-law claims for
negligence, wrongful death, and a violation of Wisconsin’s
Safe Place Statute.
The defendants moved for summary judgment, and the
magistrate judge granted the motion, concluding that the
Estate lacks evidence that the defendants created a danger
by operating the swimming pond or increased a danger by
their conduct on the day she drowned. The judge explained
that any factual disputes about the adequacy of the pond’s
safety protocols raised at most a potential question of negli-
gence, not a violation of due process. The judge relinquished
supplemental jurisdiction over the state-law claims and
entered final judgment for the defendants.
II. Discussion
We review a summary judgment de novo, construing the
record and drawing all reasonable inferences in the plain-
tiffs’ favor as the nonmoving parties. Wilson-Trattner v.
Campbell, 863 F.3d 589, 593 (7th Cir. 2017). Summary judg-
ment is warranted 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).
We review the magistrate judge’s decision to relinquish
supplemental jurisdiction for an abuse of discretion. Rivera v.
Allstate Ins. Co., 913 F.3d 603, 618 (7th Cir. 2018).
The Fourteenth Amendment provides that “[n]o state
shall … deprive any person of life, liberty, or property,
without due process of law.” U.S. CONST. amend. XIV, § 1.
The Supreme Court has cautioned that the Due Process
Clause “does not transform every tort committed by a state
6 No. 18-3524
actor into a constitutional violation.” DeShaney, 489 U.S. at
202. More specifically, the Clause “confer[s] no affirmative
right to governmental aid, even where such aid may be
necessary to secure life, liberty, or property interests of
which the government itself may not deprive the individu-
al.” Id. at 196.
There are two recognized exceptions to the DeShaney
rule. First, when a public official “affirmatively places a
particular individual in a position of danger the individual
would not otherwise have faced,” the official may be liable
for a due-process violation if injury results. Monfils v. Taylor,
165 F.3d 511, 516 (7th Cir. 1998) (quotation marks omitted).
The second exception comes into play when “the state has a
‘special relationship’ with a person, that is, if the state has
custody of a person, thus cutting off alternative avenues of
aid.” Id.
The exception for state-created dangers is at issue here,
but it’s quite narrow and reserved for “egregious” conduct
by public officials. Doe v. Village of Arlington Heights, 782 F.3d
911, 917 (7th Cir. 2015). A due-process claim of this kind
requires proof of three elements: (1) the government, by its
affirmative acts, created or increased a danger to the plain-
tiff; (2) the government’s failure to protect against the danger
caused the plaintiff’s injury; and (3) the conduct in question
“shocks the conscience.” Flint v. City of Belvidere, 791 F.3d
764, 770 (7th Cir. 2015) (quotation marks omitted). The third
element—conscience-shocking conduct—requires a culpable
state of mind equivalent to deliberate indifference. King v.
E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007).
Elsewhere we’ve referred to this as a requirement of criminal
No. 18-3524 7
recklessness. See Slade v. Bd. of Sch. Dirs. of Milwaukee, 702
F.3d 1027, 1033 (7th Cir. 2012).
Viewing the evidence in the light most favorable to the
Estate, we agree with the magistrate judge that the record
falls far short on each of these elements. The Estate empha-
sizes that the swimming pond was “murky” and had poor
visibility and “uneven topography.” That’s true of man-
made swimming holes in general, and many natural lakes as
well. There’s no evidence that the Regner Park swimming
pond is distinctively dangerous.
The Estate also points to testimony from the defense ex-
pert describing swimming as an “inherently dangerous
activity.” That’s certainly true. As even experienced swim-
mers will concede, any body of water—whether man-made
or natural—presents inherent dangers, especially to chil-
dren. See id. at 1032 (observing that most adults understand
that “lakes and other natural bodies of water, even inland
water, are dangerous because of currents and uneven depth,
and especially to children”). Swimming, or participating in
any water-based recreational activity for that matter, exposes
participants to risk of injury, including drowning.
And while operating any public swimming facility in-
vites swimmers to expose themselves to the dangers inher-
ent in this activity, liability under the Due Process Clause
doesn’t attach “just because the danger materializes.” Id. at
1031. After all, “[d]angers to the public at large are insuffi-
cient for constitutional purposes.” See Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 828 (7th Cir. 2009). The
Estate needs specific evidence that this particular swimming
pond is especially dangerous for a young child like Swannie.
It has none.
8 No. 18-3524
In the end, the Estate’s argument boils down to the re-
markable assertion that a municipal swimming pond is by
its nature a state-created danger. That proposition, if adopt-
ed, would turn every tort injury at a public pond or pool into
a constitutional violation. Federal constitutional claims
involving public playgrounds and practice fields wouldn’t
be far behind. Indeed, the Estate’s preferred result “would
potentially set up a federal question whenever an accident
happens during activities sponsored by the state.” Waybright
v. Frederick County, 528 F.3d 199, 208 (4th Cir. 2008). But the
Fourteenth Amendment doesn’t displace state tort law by
transforming accidents at public facilities into federal consti-
tutional claims. See, e.g., Daniels v. Williams, 474 U.S. 327, 332
(1986) (“Our Constitution … does not purport to supplant
traditional tort law in laying down rules of conduct to
regulate liability for injuries that attend living together in
society.”).
Perhaps aware that its broad position is untenable, the
Estate falls back on a narrower argument that the defendants
increased a danger to Swannie. But this theory is no stronger
because there’s no evidence that the defendants actively “did
something that turned a potential danger into an actual
one.” Sandage v. Bd. of Comm’rs of Vanderburgh Cty., 548 F.3d
595, 600 (7th Cir. 2008). The Estate argues that the City failed
to take proper safety precautions, like dredging the bottom
of the pond, and the lifeguards failed to comply with the
park’s “mandatory” rules involving small children. And it
emphasizes evidence that the pond was especially crowded
on the afternoon in question, and at one point a lifeguard
admitting to being “overwhelmed” by the number of swim-
mers.
No. 18-3524 9
But we’ve explained that DeShaney draws an “essential
distinction between endangering and failing to protect.” Id. at
599 (emphases added). The former may amount to a consti-
tutional violation if other facts are present; the latter is
simple negligence. Moreover, no evidence suggests that the
lifeguards disregarded their training. Each lifeguard was
charged with scanning the swimming pond for signs of
trouble and responding as needed. That Swannie slipped
beneath the surface without being noticed by anyone—
lifeguard, family member, or anybody else at the pond—
reflects the heartbreaking reality of childhood drownings.
But it’s not evidence that the defendants took affirmative
steps that created or increased a danger to Swannie.
The Estate’s difficulty articulating a theory of the case
that might situate this claim within the law of state-created
dangers reflects the fundamental problem with its position:
this is at most a negligence claim. To be sure, “[n]ot paying
enough attention to a child and thus allowing the child to …
drown is terribly tragic, and possibly even negligent.”
DeAnzona v. City & County of Denver, 222 F.3d 1229, 1236
(10th Cir. 2000). But mere negligence is “categorically be-
neath the threshold of constitutional due process.” County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Indeed, “gov-
ernmental defendants must act with a mens rea akin to
criminal recklessness for constitutional liability to attach.”
Flint, 791 F.3d at 770.
We made this point clear in Slade, another drowning case
brought on a theory of state-created danger. There, a middle-
school student drowned on a field trip to a park with a large
natural lake. 702 F.3d at 1028–29. Swimming was anticipat-
ed; indeed, parents were asked to indicate when signing the
10 No. 18-3524
permission slip whether their student was allowed to swim.
The school district had a rule prohibiting swimming on field
trips unless a lifeguard is present. No lifeguard was present
that day, but the assistant principal let the students swim
anyway and a seventh-grade boy drowned. We noted that
the assistant principal “was negligent and her negligence
enhanced the danger inherent in swimming in a lake: she
disobeyed the rule requiring the presence of a lifeguard even
though she knew that portions of the designated swimming
area were so deep that the water was over the head of some
of the kids.” Id. at 1032. While that negligence may have
increased the risk of danger to the student, it was not the
type of reckless, conscience-shocking conduct that might be
actionable as a constitutional violation. Id. at 1032–33.
Slade involved far more blameworthy conduct than what
occurred here, and still we rejected the due-process claim.
Despite the tragic loss of life, Slade hewed closely to the
principle that the Due Process Clause cannot be interpreted
“to impose federal duties that are analogous to those tradi-
tionally imposed by state tort law.” Collins v. City of Harker
Heights, 503 U.S. 115, 128 (1992). We do the same here. On
this record, no reasonable jury could find that the defendants
created or increased a danger to Swannie or that they were
deliberately indifferent to the danger. The judge was right to
enter summary judgment for the defendants.
AFFIRMED
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