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755 F.2d 929
Rigglemanv.Vulcan Materials Co.
84-1287
United States Court of Appeals,Fourth Circuit.
2/7/85
1
W.D.Va.
AFFIRMED
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30252
Plaintiff-Appellee, D.C. No. 4:15-cr-06049-EFS-2
v.
JESE DAVID CARILLO CASILLAS, AKA MEMORANDUM*
Jese David Casillas Carillo,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Jese David Carillo Casillas appeals from the district court’s judgment and
challenges the 300-month sentence imposed following his guilty-plea conviction
for conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846,
and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).
*
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). Accordingly, Carillo
Casillas’s request for oral argument is denied.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Carillo Casillas contends that the district court erred by applying a four-level
aggravating role enhancement under U.S.S.G. § 3B1.1(a). He argues that the
evidence was insufficient to support the enhancement because it showed that he
was controlled by his supervisors in Mexico. This argument fails because, even
accepting that the drug trafficking organization was headquartered in Mexico, a
preponderance of the evidence supports the district court’s finding that Carillo
Casillas was a leader of the organization’s illicit activities in the Eastern District of
Washington. See United States v. Job, 871 F.3d 852, 868 (9th Cir. 2017) (stating
evidentiary standard for a sentencing enhancement). The record reflects that
Carillo Casillas negotiated drug deals, acquired vehicles with hidden
compartments, arranged money laundering transactions, and had considerable
control over his couriers. Under these circumstances, the district court did not
clearly err in finding that Carillo Casillas exercised organizational authority over
the drug and money laundering conspiracy, see U.S.S.G. § 3B1.1 cmt. n.4; United
States v. Ingham, 486 F.3d 1068, 1075-76 (9th Cir. 2007), and did not abuse its
discretion in imposing the enhancement, see United States v. Gasca-Ruiz, 852 F.3d
1167, 1170 (9th Cir. 2017) (en banc) (application of the Guidelines to the facts is
reviewed for abuse of discretion).
AFFIRMED.
2 18-30252
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OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
©FF8Q8AL BUSINESS.
STATE OF TEXAS • ^ ™SQy W.uw, ' PITNEY BOWES
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On this day, the application for 11 07. Writ of H^as Corpus has been received
and presented to the Court. •/ r. wy\\j\
-' Y || \ Abel Acosta, Clerk
kennet^jwayn^IaL
22715 IMPERIAL VAIfLEY
HOUStON,/TXNj7!073
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5 U.S. 212 (____)
1 Cranch 212
CLARKE
v.
BAZADONE.
Supreme Court of United States.
Mason, for the plaintiff in error.
WRIT of error to the general court of the territory north west of the river Ohio.
This court was established by an ordinance of the colonial congress, during the confederation. The only question decided in the case, was, whether the writ of error would lie.
The writ of error was quashed, on the ground that the act of congress establishing the territory had not authorized an appeal or writ of error, to the supreme court of the United States.
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150 F.3d 1196
Mathisv.Thompson*
NO. 96-9009
United States Court of Appeals,Eleventh Circuit.
July 9, 1998
Appeal From: N.D.Ga. ,No.96001781CVFMH
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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359 F.Supp.2d 871 (2005)
UNITED STATES of America, Plaintiff,
v.
Omega FLORES, Patricia Zaragoza, Defendant.
No. CR 04-904-PCT-DGC.
United States District Court, D. Arizona.
January 5, 2005.
*872 *873 Jeffrey Allen Williams, Federal Public Defender's Office, Phoenix, AZ, Daniel L. Castillo, Law Office of Daniel L. Castillo, Tampa, FL, for Defendant.
Brian Gail Larson, U.S. Attorney's Office, Phoenix, AZ, for Plaintiff.
ORDER
CAMPBELL, District Judge.
Defendants Patricia Zaragoza and Omega Flores have been charged with possession with intent to distribute more than 500 grams of methamphetamine. The methamphetamine was found concealed in Zaragoza's car during a traffic stop. Zaragoza filed a motion to suppress physical evidence and statements obtained as a result of the traffic stop (Doc. # 31), which Flores joined (Doc. # 25). The Government filed a response (Doc. # 39). The Court held an evidentiary hearing on December 17, 2004, and heard testimony from the Arizona Department of Public Safety ("DPS") officer who stopped Defendants. The Court also viewed a video and audio recording of the traffic stop made by a camera in the officer's patrol car. The Court concludes that the traffic stop and search of Defendants' vehicle did not violate their constitutional rights.
I. Factual Background.
On August 21, 2004, Defendants were traveling east on Interstate 40 outside of Flagstaff, Arizona. Flores was driving the 1999 Acura Sedan. DPS Officer Carlson was stationed in the median near milepost 203, monitoring east-bound traffic. As Defendants' car approached, Carlson's radar showed they were traveling 74 miles per hour, nine miles per hour over the posted speed limit. Carlson pursued Defendants' car and pulled it over at approximately milepost 205. The video camera in Carlson's patrol car was activated with his lights and siren and recorded the entire stop.
Carlson approached the car on the passenger side and requested Flores' license and the vehicle registration. As he stood *874 at the car window, he noticed a strong odor of air fresheners. Carlson testified from his training and experience that air fresheners often are used by drug smugglers to mask the smell of narcotics. Carlson observed that Flores' hand was shaking visibly as she handed him her license, that Zaragoza's hand was shaking as she handed him the registration, and that the car was very clean inside and out, an unusual condition for cars on an interstate trip. Carlson also noticed that Zaragoza and Flores laughed nervously what he described as a "false laugh" when he approached them.
Carlson asked Flores to come back to his patrol car. She complied. He stated that he was going to "cut" her a "break" and only issue a warning. Carlson testified on the basis of more than 7,000 traffic stops that drivers usually begin to relax when told they will receive a warning instead of a citation. Flores did not. Carlson testified that she seemed to grow more nervous. Even though it was a cool day, one which later caused Defendants to request a blanket and jacket, Carlson noticed beads of sweat on Flores' forehead.[1]
While completing the warning paper work, Carlson asked Flores where she was traveling from. She said she was coming from seeing her brother in New Mexico, a response that made little sense given her eastbound direction on Interstate 40. Flores corrected her response and said she was coming from Phoenix and on her way to visit her brother near Roswell, New Mexico. Carlson asked what she had been doing in Phoenix; she said she had been visiting family. Carlson asked who owned the car; she said it was owned by Patricia, the passenger. When asked for Patricia's last name, Flores hesitated and looked away, as if trying to think of what to say, and then responded that Patricia's last name was Corona. This also struck Carlson as odd because the name on the registration was Patricia Zaragoza. Carlson asked Flores if Patricia recently had been married; Flores responded that she was not sure, another odd response from someone supposedly traveling with a friend. In response to a question about where they had stayed in Phoenix, Flores said Motel 6.
Each of Carlson's questions was asked in a friendly, conversational style as Carlson completed paper work. Carlson asked Flores to remain by his patrol car while he talked to Patricia, the vehicle owner. He then approached the car on the passenger side and again detected a strong odor of air freshener. Zaragoza appeared nervous and had her identification out even though Carlson had not requested it. In response to Carlson's questions, Zaragoza gave several answers that were inconsistent with those given by Flores. Zaragoza said that they were going to Florida (not New Mexico) and did not plan to stop along the way, that they had been in Phoenix visiting friends (not family), and that they had stayed with friends (not in a Motel 6). Carlson walked around the car and checked the plates, which he previously had noticed were from Florida, and then proceeded to the driver's side where he checked the vehicle identification number (VIN). While doing so he noticed that the car showed more than 130,000 miles on the odometer, unusually high mileage for a five-year-old vehicle, but mileage consistent with a vehicle used in drug smuggling.
Carlson walked back to his patrol car, gave Flores the written warning, returned *875 her license and the registration, suggested that she slow down in her driving, and told her to "take care." As Flores started walking back to the car, Carlson asked if she would answer some additional questions. Flores agreed. Carlson then explained that Arizona has drug trafficking problems and asked if she was transporting drugs. Flores said no. He asked if he could search the car. Flores responded that she did not own the car, but that she would consent to the search. Carlson then asked Zaragoza if he could search the car, and she agreed. He asked her a second time, and she agreed a second time. Carlson then asked Zaragoza and Flores to read a written consent to search form, make sure they understood it, and sign it if they agreed to the search. Both Defendants read and signed the form.
Zaragoza's six year older daughter was in the back seat of the car. Carlson had the child step out while the car was searched. After a thorough search, during which Carlson was joined by another DPS officer, the officers found 16 packages containing 7.72 kilograms of methamphetamine in panels on either side of the rear passenger seat. Carlson also found $5,000 in cash and plane tickets showing that Flores and Zaragoza had flown to Phoenix the previous day.
Defendants were placed under arrest. While transporting Defendants to the Coconino County jail, Carlson overheard Zaragoza say to Flores "[t]hey told my husband that he would get ten years for the same thing and he didn't get anything."
II. The Traffic Stop and Search Were Constitutional.
"The constitutionality of an investigative detention is judged under the framework established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring that the scope of an investigative detention `must be carefully tailored to its underlying justification ... and may last no longer than is necessary to effectuate the purpose of the stop.'" United States v. Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir.2001) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). An officer must initially restrict the questions he asks during the stop to those reasonably related to the justification for the stop, and may expand their scope only if he notices particularized, objective factors arousing his suspicion. See id.; U.S. v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir.2002).
A. The Initial Stop Was Valid.
Carlson testified that his radar clocked Defendants traveling 75 miles per hour in a 65-mile-per-hour zone. He also testified that he confirmed the accuracy of his radar gun before and after his shift that day. This evidence is not disputed.[2]
A law enforcement officer may stop a driver without violating the Fourth Amendment when the officer has probable cause to believe that a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Carlson clearly had probable cause in this case to believe Defendants were speeding. The stop, therefore, was valid.
B. The Questioning and Other Actions During the Stop Did Not Violate Defendant's Fourth Amendment Rights.
Having made a valid stop of Defendants' car, Carlson was permitted to ask questions *876 and take other actions reasonably related to the purpose of the stop. See United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir.2001). The Fourth Amendment was violated only if he expanded the stop beyond its permissible scope without a suspicion based on particularized, objective factors. See Chavez-Valenzuela, 268 F.3d at 724. The Court's Fourth Amendment analysis must ultimately be based on the totality of the circumstances involved in the stop. See United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); United States v. Hernandez, 313 F.3d 1206, 1212 (9th Cir.2002). Initially, however, the Court will address each element of the stop discussed by the parties in briefing and at the hearing.
Carlson began by asking Flores for her driver's license and the vehicle registration. Such a request is permitted under the Fourth Amendment as part of a traffic stop. See Chavez-Valenzuela, 268 F.3d at 724.
Carlson asked Flores to exit the vehicle and come back to his patrol car. He testified credibly during the hearing that he routinely takes this step for his own safety; he explained that dangerous situations can arise if recently stopped persons are left to confer out of his presence. Reasonable measures undertaken for officer safety do not violate the Fourth Amendment. See Terry, 392 U.S. at 23-24, 88 S.Ct. 1868. In addition, the Ninth Circuit has held that separating individuals for questioning does not violate their Fourth Amendment rights. United States v. Bautista, 684 F.2d 1286, 1289-91 (9th Cir.1982).
Carlson asked Flores where she was traveling, where she had been, and the reasons for her travel. Such questions are permissible as part of a traffic stop. United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir.1999) (implying questions about travel plans are permissible); United States v. Hill, 195 F.3d 258, 268 (6th Cir.1999) (stating that questions about a driver's purpose for traveling were reasonably related to a traffic stop for speeding); Chavez-Valenzuela, 268 F.3d 724 n. 4 (citing Pruitt and Hill favorably on this point).
After talking with Flores, Carlson returned to the car to confirm the registration with Zaragoza and check the VIN. This step, like checking the driver's license, is a reasonable part of a traffic stop. See New York v. Class, 475 U.S. 106, 111-14, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986).
Carlson asked Zaragoza questions while doing so. Zaragoza responded voluntarily. The Ninth Circuit has observed that "[s]ometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered[.]" Bautista, 684 F.2d at 1290 n. 3. Defendants contend that the questioning of Zaragoza was not reasonably related to the traffic stop that Carlson had no reasonable basis for asking a passenger anything during the stop. But Carlson's questioning of Zaragoza was consensual, was with the vehicle owner, and Zaragoza responded voluntarily. The Court cannot conclude that the Fourth Amendment prohibits an officer from conferring with a vehicle's owner about travel matters during a traffic stop. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Ayon-Meza, 177 F.3d 1130, 1133 (9th Cir.1999).
Following completion of these steps, Carlson issued the written warning to Flores, returned her license and vehicle registration, and told her to "take care." She turned and began walking back to the vehicle. The entire stop to this point had taken less than nine minutes. "[T]he Supreme Court specifically [has] refused to *877 set a definitive rule on the time limit of a lawful investigative stop, finding instead that the circumstances of each case must be considered." United States v. Torres-Sanchez, 83 F.3d 1123, 1128 (9th Cir.1996) (citing United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)). The circumstances of this case, as captured on video tape, show that Carlson did not delay unreasonably or take an unnecessary amount of time to issue the warning. See id. at 1127-29 ("[U]pon review of the totality of the circumstances, we find Sanchez being seated in [the] patrol car twenty minutes to be reasonable[.]").
Defendants assert that the traffic stop ended once Carlson obtained the license and registration that nothing more was needed to complete the warning and that the actions he took thereafter exceeded the permissible limits of the traffic stop. The Court disagrees. The minutes from the beginning of the stop to issuance of the warning were used to complete steps reasonably related to the stop: obtaining the license and registration, checking Flores' identity by radio, confirming Zaragoza's ownership of the car, checking the VIN, and completing the paperwork required for the warning. Each of these actions reasonably can be viewed as part of a single traffic stop. See id. at 1129. The Court will not parse them as Defendants suggest. See United States v. Sokolow, 490 U.S. 1, 1585-87, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ("[I]n evaluating the validity of a stop[,] ... we must consider `the totality of the circumstances the whole picture.'").
By the time he issued the warning, Carlson had identified particularized, objective factors that supported a reasonable suspicion and that justified extending the stop. These included Defendants' nervousness, the strong odor of air fresheners, the clean condition of the car on a long road trip, the high mileage on a relatively new vehicle, the odd responses by Flores to Carlson's questions and the inconsistent answers provided by Zaragoza, and the fact that Defendants were traveling from a known drug source area to a known drug distribution area. See, e.g., United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir.2001) (nervousness); United States v. Perez, 37 F.3d 510, 514 (9th Cir.1994) (nervousness and traveling from a drug source area to a distribution area); United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir.1995) (air fresheners to mask the odor of drugs); United States v. Rodriguez-Arreola, 270 F.3d 611, 615 n. 10 (8th Cir.2001) (clean interior with no debris on a purported interstate trip); United States v. $189,825 in U.S. Currency, 8 F.Supp.2d 1300, 1313 (N.D.Okla.1998) (a new vehicle with high mileage); United States v. Oba, 978 F.2d 1123, 1128 (9th Cir.1992) (inconsistent answers and vague explanations). These particularized, objective factors, taken together, supported Carlson's reasonable suspicion that drugs were being transported and justified extension of the stop to inquire about possible drug trafficking. See id; Royer, 460 U.S. at 497, 103 S.Ct. 1319; Ayon-Meza, 177 F.3d at 1133.[3]
*878 Defendants assert that each of these factors, taken alone, could be entirely innocent, but this fact does not render the stop unconstitutional. Officer Carlson testified that it was the cumulative effect of these factors that gave rise to his suspicion of drug trafficking, and Courts repeatedly have held that the totality of circumstances must be considered. See Arvizu, 534 U.S. at 273-74, 122 S.Ct. 744; Hernandez, 313 F.3d at 1212. The Court finds that Carlson's suspicion was reasonable and based on particularized, objective factors.
Defendants argue that Zaragoza's boyfriend and child are in fact named Corona, consistent with Flores' answer, and that Zaragoza purchased the car only months earlier with 127,000 miles on the odometer. But these facts were not known to Carlson at the time of the stop. The question to be addressed in this motion is not whether the factors relied on by Carlson proved to be entirely accurate, but whether they were objective, particularized, and sufficient to support a reasonable suspicion based on the totality of the circumstances at the time. The Court concludes that Carlson's reliance on the high mileage of the car and the apparent error of Flores regarding Zaragoza's last name were objectively reasonable given the information he possessed at the time. See $189,825 in U.S. Currency, 8 F.Supp.2d at 1313; Oba, 978 F.2d at 1128.
C. Defendants' Consent to Search Their Vehicle Was Valid.
Defendants first agreed verbally to the search and then signed a written consent. The consent form specifically noted that Defendants were not required to consent, that any evidence found as a result of the search could be used against them in civil or criminal proceedings, that they could withdraw their consent at any time, that they could consult with an attorney before the search, and that they could require that a search warrant be obtained. Carlson asked Defendants to read the form, make sure they understood it, and sign if they agreed to the search. Each Defendant read the form and signed it.
"An individual may waive [her] Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search of [her] person, property, or premises." Torres-Sanchez, 83 F.3d at 1129. To determine whether consent is voluntary, five factors are considered: (1) whether the defendant was in custody; (2) whether the arresting officer had his gun drawn; (3) whether Miranda warnings had been given; (4) whether the defendant was told she had a right not to consent; and (5) whether the defendant was told that a search warrant could be obtained. Id. These factors lead the Court to conclude that Defendants' consent was voluntary. Defendants were not in custody (a point that will be discussed further below). Carlson never drew his gun. Miranda warnings were not given and were not necessary because Defendants were not in custody. Defendants were told by the form that they had the right not to consent.[4] The form stated that Defendants could insist on a search warrant, but Carlson never threatened to get such a warrant if they declined to consent. Moreover, as the video tape makes clear, Carlson's actions were cordial and pleasant. Defendants consented to Carlson's search of their car and thereby waived any Fourth Amendment objection they might have had to the search.
D. Carlson's Secondary Motive.
Having concluded that the investigatory stop was objectively reasonable and that Defendants' consent to the search was *879 voluntary, the Court's inquiry normally would end. In this case, however, there is an additional issue the Court must address. Carlson candidly admitted during his testimony that some of his actions during the stop were designed to look for evidence of drug trafficking. He testified, for example, that he watched Flores to see if her nervousness subsided once she was informed that she would receive only a warning.
Defendants contend that Carlson could take no action with an intent of investigating drug activities even if the actions were also reasonably related to the traffic stop unless he first had a reasonable and articulable suspicion that Defendants were carrying drugs. Because Carlson did not have such a suspicion at the start of the traffic stop, Defendants argue, his handling of the stop violated the Fourth Amendment.
For the reasons explained above, Carlson conducted an appropriately limited traffic stop, during which he made observations that justified extension of the stop into an inquiry about possible drug trafficking. The fact that his actions during the traffic stop were undertaken in a manner that would permit him to detect additional evidence of drug activity, if such activity was afoot, does not change the fact that his actions were reasonably related to the traffic stop. See Whren, 517 U.S. at 811-13, 116 S.Ct. 1769 ("Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis."); United States v. Robinson, 414 U.S. 218, 221 n. 1, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (holding that traffic-violation arrest was not invalid because it was "a mere pretext for a narcotics search"); United States v. Ibarra, 345 F.3d 711, 714 (9th Cir.2003) (same).
Prudent police officers remain on the lookout for criminal activity at all times, whether interacting with citizens in the normal course of their patrol activities or conducting otherwise lawful traffic stops. See Terry, 392 U.S. at 22-23, 88 S.Ct. 1868 (discussing governmental interest in crime prevention and detection and stating that it would have been "poor police work indeed" for an experienced police officer not to further investigate Terry's suspicious behavior). Certainly they may tailor their actions to facilitate detection of criminal activity, provided the tailoring does not cause their actions to exceed Fourth Amendment bounds. Law enforcement officers would be seriously hampered in detecting criminal activity if every action, every observation, every question must first be supported by articulable suspicion. Certainly such suspicion is required for an officer to extend a traffic stop to inquire about specific criminal activity, but, so long as the traffic stop itself is made on a valid basis, otherwise reasonable traffic-stop activities may be undertaken with a view toward detecting additional evidence of a crime without running afoul of constitutional limitations. See, e.g., id.; Whren, 517 U.S. at 811-13, 116 S.Ct. 1769; Robinson, 414 U.S. at 221 n. 1, 94 S.Ct. 467; Ibarra, 345 F.3d at 714; United States v. Escamilla, 301 F.3d 877, 880 (8th Cir.2002) ("[I]t is well-settled that any traffic violation provides a police officer with probable cause to stop a vehicle, even if the officer conducted the valid traffic stop as a pretense for investigating other criminal activity."); United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993) (holding that "a traffic stop, supported by probable cause, of a vehicle to which the officer also has suspicions of more nefarious activity, is not unreasonable because it is based at least in part upon other motivations").
IV. Other Issues.
The parties have briefed the question of whether Defendants each have standing to challenge the vehicle search. Because the *880 Court finds the search to have been lawful, it need not resolve this issue.
Defendants also contend that Carlson's questions violated their constitutional rights because they were not given Miranda warnings. Such warnings are required, however, only for custodial interrogations. See United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir.2004) ("An officer's obligation to administer Miranda warning attaches ... only where there has been such a restriction on a person's freedom as to render him `in custody.'") (citations omitted). Carlson's reasonable questioning of Defendants during the traffic stop, including his questions following issuance of the warning, were not custodial. Contrary to Defendants' arguments, the fact that Carlson pulled them over with flashing lights, conducted a traffic stop, and asked questions reasonably within the scope of the stop did not have the effect of placing them in custody for Miranda purposes. See United States v. Butler, 249 F.3d 1094, (9th Cir.2001) ("The case books are full of scenarios in which a person is detained by law enforcement officers, is not free to go, but is not `in custody' for Miranda purposes. A traffic stop is not custody.") (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Moreover, the statement Zaragoza made to Flores while being transported to the Coconino County Jail, which was overheard by Carlson, did not violate Defendants' Miranda rights or right to counsel because it was entirely voluntary and not made in response to a custodial interrogation. See United States v. Moreno-Flores, 33 F.3d 1164, 1170 (9th Cir.1994) ("Miranda does not prohibit the use of a defendant's voluntary statements.").
IT IS ORDERED that Defendant Patricia Zaragosa's Motion for Joinder in Co-Defendant's Motions (Doc. # 35) is granted.
IT IS ORDERED that Defendant Omega Flores' Motion for Evidentiary Hearing and Oral Argument (Doc. # 32) is granted.
IT IS FURTHER ORDERED that Defendant Omega Flores' Motion to Suppress (Doc. # 31) is denied.
NOTES
[1] Defendants argue that Carlson had never met Flores or Zaragoza before the stop and therefore had no basis for determining whether they were nervous. Carlson testified, however, that he has made more than 7,000 traffic stops, each time observing the motorists' demeanor, and that Defendants clearly were nervous. The Court finds this testimony to be credible.
[2] Carlson told Defendants in the video tape that he clocked them going 74 miles per hour, but the Court does not regard this discrepancy as significant. Flores admits on the video tape that she was going 75 miles per hour.
[3] The Government argues that Defendants were free to leave once Flores received her warning and license and was wished a good day, and that any answers provided by Defendants thereafter were entirely consensual. But Carlson did not tell Flores she was free to leave, his lights were still flashing, and he paused only briefly between wishing her a good day and continuing his questioning. The Court concludes that Carlson's questions after issuing the warning constituted an extension of the investigative stop, but that the extension was supported by particularized and objective factors supporting a reasonable suspicion.
[4] Carlson was not required verbally to tell Defendants that they could decline to consent. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
511
KA 12-01817
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JASON PAUL, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered July 23, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that the order of
protection is unduly harsh. We note at the outset that defendant’s
contention survives the valid waiver of the right to appeal because
the order of protection was not a part of the plea agreement, and an
order of protection is not a part of the sentence (see People v
Lilley, 81 AD3d 1448, 1448, lv denied 17 NY3d 860). Nevertheless, we
conclude that it lacks merit (see People v Tate, 83 AD3d 1467, 1467-
1468). Defendant further contends that the order of protection should
not have been issued because to his knowledge the victim did not
request that it be issued. We reject that contention inasmuch as
Supreme Court had the authority to issue the order even in the absence
of the victim’s consent (see Lilley, 81 AD3d at 1448).
Entered: May 2, 2014 Frances E. Cafarell
Clerk of the Court
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288 F.Supp.2d 868 (2003)
Mary SNYDER, et al., Plaintiffs
v.
GUARDIAN AUTOMOTIVE PRODUCTS, INC., Defendant
No. 3:02-CV-7497.
United States District Court, N.D. Ohio, Western Division.
October 1, 2003.
*869 *870 Patricia Horner, Toledo, OH, for Mary A. Snyder, Crystal Thiery, by and through her next friend and legal guardian, Mary A. Snyder, DeAnna Thiery, by and through her next friend and legal guardian, Plaintiffs.
Carrie L. Sponseller, Thomas A. Dixon, Eastman & Smith, Toledo, OH, Nicole Porter, Auburn Hills, MI, for Guardian Automotive Products, Inc., Defendant.
ORDER
CARR, District Judge.
Plaintiff Mary Snyder brings this suit against defendant Guardian Automotive Products, Inc., claiming hostile work environment in violation of Ohio Revised Code § 4112 and Ohio public policy, negligent hiring and supervision, and loss of parental consortium. This case was removed to this court on the basis of diversity, therefore this court has jurisdiction pursuant to 28 U.S.C. § 1441. Pending is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, defendant's motion shall be granted.
BACKGROUND
Mary Snyder ("Snyder") was hired by Guardian Automotive Products, Inc. ("Guardian") on November 18, 1998. Snyder claims that she first experienced the alleged harassment in early 1999.
A. Supervisor Scott Grubel
Scott Grubel ("Grubel") was Snyder's supervisor in 1999. Snyder had several complaints about Grubel. First, Snyder claims that Grubel denied her request to cancel overtime hours, but allowed another female co-worker to cancel her hours. Second, Snyder claims that Grubel falsely accused her of talking with other co-workers when she was actually performing training, a requirement of her job position. Third, Snyder states that Grubel accused *871 her of violating the dress code by wearing a shirt that revealed her navel. Snyder claims that although other women dressed in similar attire, Grubel stated that she could not dress in such a way because she "had more than other women" (Doc. 22, at p. 4). Grubel then asked Snyder to change her clothing. Snyder became upset with this request, as she thought that she was being forced to go home and change her clothing which would result in her losing her attendance bonus. Finally, Snyder claims that Grubel told "dumb blond jokes" in her presence and never had anything nice to say to her (Doc. 22, at p. 4).
In response to Grubel's alleged actions, Snyder voiced her complaints to supervisor Dale Smith. Dale Smith then informed the human resources department and Grubel's supervisor, Steve Mawer ("Mawer"), of Snyder's complaints. Mawer conducted an investigation of Snyder's complaints. Deciding that Grubel acted inappropriately, Mawer issued him a written warning. Grubel was subsequently transferred to another department and was eventually terminated.
B. Incident Report
On September 14, 2000, Snyder was working on the line with a co-worker, Cathy Biglin ("Biglin"). Snyder and Biglin began to argue about the work they were performing. After the argument, Snyder approached her husband, Michael Snyder, also a Guardian employee, about the incident. Michael Snyder then approached Biglin about the argument asking her why she had been screaming at his wife. Biglin confronted Snyder again, this time about Snyder telling her husband about the incident. Michael Snyder also again approached Biglin.
Jeff Evans ("Evans") conducted an investigation into the incident and found that all parties involved in the argument used inappropriate language and violated Guardian's Code of Conduct. Each employee, Mary Snyder, Michael Snyder, and Cathy Biglin, was disciplined. Due to prior disciplinary problems, Biglin was terminated after this incident, while Mary and Michael Snyder received disciplinary actions in their files.
When a supervisor discussed the issue with Michael and Mary Snyder, both refused to sign the disciplinary actions. Snyder claims that the incident report described the argument as a physical confrontation, rather than a verbal confrontation. Both employees were told that the reports would be placed in their files whether they signed them or not. Brian Hyde, the plant manager, then met with Snyder to discuss her reservations about signing the report. Hyde explained that it was the company's policy that employees sign their incident reports to illustrate that they are aware of the report. Snyder then agreed to sign the report.
Snyder claims that Guardian supervisors "repeatedly tried to coerce [her] to sign an incident report concerning a co-worker ... which was inaccurate but that would have more likely than not resulted in the co-worker's termination" (Doc. 1, at ¶ 7(a)). In addition, she claims that her signature was obtained in a "misleading manner" and that her supervisors "involved [her] husband in the matter ... to coerce [her] into signing the report" (Doc. 1, at ¶ 7(a)).
C. Supervisor John Schwartz
As Snyder and her husband would arrive at work together, supervisor John Schwartz ("Schwartz") stood under a clock and repeatedly told the couple that they were late. Although Schwartz threatened to report their alleged tardiness, Snyder never received any notice of an employee contact or corrective action. Michael Snyder did complain to John Curtis about Schwartz's behavior. Snyder claims that Schwartz eventually found out about the *872 complaint and threatened that he would fire Snyder if he found out that she had complained about him again.
D. Computer Messages
On December 20, 2000, Snyder received three to four separate harassing messages on three computers that she was using. One message stated "stop acting like you're actually working," which Snyder thought was a joke. However, after the third message Snyder became frightened because she felt that she was being watched. Supervisor Jeff Evans was informed of the messages, but the sender was not determined. Snyder claims that these messages interfered with her job performance.
E. Snyder's Work Injury
After injuries to her finger, hand, arm, and shoulder while on the cutting line, Snyder was assigned to light duty work by a physician for six weeks. Snyder had work restrictions which limited the amount of weight she could lift and prevented her from overhead work, among other things. Snyder claims that despite the work restrictions, her supervisors continued to assign jobs which required working above shoulder level, bending low, and lifting ladders. Snyder also claims that another male employee, who was also on light duty work restrictions, was not assigned similar tasks. Snyder claims that he was only assigned jobs which required him to walk around the plant while carrying a clipboard.
F. Tow Motor Training
Snyder alleges that she was forced to take a tow motor operator licensing test on three occasions and even after passing the test, Jeff Evans required that he walk with her whenever she operated the machine. Snyder claims that male employees only had to take the test once and were not required to have supervision when operating the machinery.
G. Termination of Snyder's Employment
On March 6, 2001, Snyder was assigned to throw spall vinyl in a room of the factory. A co-worker working with Snyder accused Snyder of trying to hit her with the vinyl. Snyder was later approached by Jeff Evans and the director of human resources about the incident. Snyder claims that the co-worker's allegation was inaccurate, and threatened to file harassment charges against other employees. Snyder stated that she "might as well quit if I am going to be drug into the office every day and you won't let me file against them" (Doc. 22, at p. 12). Snyder then stormed out of the office. Jeff Evans eventually found Snyder sitting in her car and asked her to return to the office so that they could finish their conversation. Snyder eventually returned and continued the conversation. As Snyder was leaving the office, Jeff Evans asked her if she would return the next day. Snyder did not indicate whether she would return to work. The next day Snyder arrived at work, but was informed that she could not return to her job because she had resigned.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material facts. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who "must set forth specific facts showing that *873 there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
DISCUSSION
A. Hostile Work Environment
Section 4112.02(C)(2) of the Ohio Revised Code states that it shall be an unlawful discriminatory practice for an employer to "adversely effect the ... employment conditions of any person as an employee because of race, color, religion, sex, national origin, disability, age, or ancestry." The Ohio Supreme Court has held that in cases involving alleged violations of § 4112, courts may use federal case law interpreting Title VII of the Civil Rights Act of 1964 as guidance. Little Forest Medical Center v. Ohio Civil Rights Comm'n, 61 Ohio St.3d 607, 609, 575 N.E.2d 1164 (1991) ("[R]eliable, probative, and substantial evidence in an employment discrimination case brought pursuant to R.C. Chapter 4112 means evidence sufficient to support a finding of discrimination under Title VII.").
The U.S. Supreme Court has established that a hostile work environment constitutes sexual harassment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). A hostile work environment is created when "the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. 2399). Courts examine three main factors when examining alleged hostile work environments: "(1) was the conduct severe or pervasive so as to alter the terms and conditions of employment? (2) was the conduct offensive to the plaintiff? (3) would the conduct have been offensive to the reasonable person or victim?" Lex. K. Larson, Employment Discrimination § 46.04 (2d ed.1994).
In assessing whether an environment is "severe and pervasive," courts have considered the "totality-of-the-circumstances[.]" Williams v. General Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999). Considerations "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive *874 utterance; and whether it unreasonably interferes with an employee's work performance". Harris, 510 U.S. at 23, 114 S.Ct. 367. Furthermore, it must be shown that an employee was subjected to such treatment because of her sex. Although it is possible for non-sexual conduct to be considered in a hostile work environment situation, it must "be shown that but for the employee's sex, [s]he would not have been the object of harassment." Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir.2000). This non-sexual conduct must reflect "anti-female animus, and therefore could be found to have contributed significantly to the hostile environment." Williams, 187 F.3d at 565 (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 905 (1st Cir.1988)).
When the alleged claim is based on a supervisor's actions, a plaintiff must establish the supervisor's discriminatory practice, and then show that the supervisor's actions resulted in a "tangible employment action." Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). This "tangible employment action" may include "discharge, demotion, or undesirable reassignment." Id. However, an employer can "escape liability only if it took reasonable care to prevent and correct any sexually harassing behavior." Williams, 187 F.3d at 561. When the claim revolves around the actions of a co-worker, it must be shown that the employer "knew or should have known of the alleged sexual harassment and failed to implement prompt and appropriate corrective action." Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir.1999).
In the present action, plaintiff claims that she was subjected to a hostile work environment on the basis of her gender. Plaintiff fails, however, to establish that those incidents occurred because of her gender. Moreover, plaintiff has not shown that the hostile environment she alleges resulted in tangible employment action or adversely affected her working conditions.
Regarding the conduct of supervisor Scott Grubel, it is undisputed that once plaintiff complained about his conduct, the company assigned him elsewhere. By transferring Grubel and eventually terminating his employment, Guardian acted entirely properly and met its obligations under the law.
The other incidents included in plaintiff's complaint show no gender-based animus. Plaintiff has not demonstrated that her similarly situated male co-workers were treated differently than she. Regarding the incident report after the Biglin confrontation, plaintiff gives no evidence that her husband was treated differently than she. Furthermore, there is no indication that her husband continued in his refusal to sign the report.
Similarly, Schwartz's threat to fire Snyder and the annoying computer messages sent to Snyder reflect no gender-based motive or bias.
Regarding plaintiff's alleged mistreatment while on light work duty, it is not evident that this was based on gender. Plaintiff complains that a male co-worker merely had to walk around with a clipboard while on light work duty. Plaintiff, however, has presented no proof that her co-worker's restrictions were comparable to hers. She has failed, accordingly, to meet her burden of showing that she and the male co-worker were similarly situated. Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir.1992). Plaintiff shows no adverse effect on her working conditions due to her light work assignments other than dissatisfaction with her situation.
Moreover, plaintiff has not established that men were treated differently for tow motor training. Even if there was a discrepancy *875 in the way plaintiff was treated when she was trained, there was no effect on her pay rate and thus the training had no adverse impact on her working conditions.
Finally, in response to plaintiff's resignation, there is no proof that a male employee would have been treated differently in the same situation. Thus, there is no indication that there was any gender-based animus in the company's refusal to allow her to return to work. Furthermore, it was a reasonable assumption for her supervisors to believe that plaintiff resigned, as she gave no definitive answer, when asked, about whether she would return to work the next day.
In light of the totality of the circumstances, plaintiff's claims are not actionable. A rational trier of fact could not find any gender-based discrimination constituting a hostile work environment.
B. Violation of Public Policy
The Ohio Supreme Court has stated that "public policy warrants an exception to the employment-at-will doctrine when an employee is discharged ... for a reason which is prohibited by statute." Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228, 234, 551 N.E.2d 981 (1990). The Court clarified this statement by explaining that "to state a claim of wrongful discharge in violation of public policy, a plaintiff must allege facts demonstrating that the employer's act of discharging contravened a `clear public policy.'" Painter v. Graley, 70 Ohio St.3d 377, 383, 639 N.E.2d 51 (1994). Moreover, the Court held in Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653 (1995) that sexual harassment violates clear Ohio public policy.
In the case at bar, however, the plaintiff has failed to establish a prima facie case of sexual harassment. Because her "hostile environment" claim fails, plaintiff's allegation that her termination violates Ohio public policy has no merit.
C. Negligent Hiring and Supervision
A party seeking to prevail on a claim for negligent hiring, supervision, or retention of an employee by an employer must show:
(1) the existence of an employment relationship;
(2) the employee's incompetence;
(3) the employer's actual or constructive knowledge of such incompetence;
(4) the employee's act or omission causing the plaintiff's injuries; and
(5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries.
Douglass v. Salem Cmty. Hosp., 153 Ohio App.3d 350, 366, 794 N.E.2d 107 (2003).
It is undisputed that plaintiff was an employee of defendant. Plaintiff has not provided specific allegations, however, that demonstrate the incompetence of any of her supervisors, nor has she alleged that Guardian had actual or constructive knowledge of any supervisory incompetence.
Plaintiff's allegations regarding Scott Grubel indicate that, while his behavior may have been inappropriate, supervisor Dale Smith acted properly in transferring, and later terminating, Grubel.
The allegation that supervisor John Schwartz threatened to report plaintiff and her husband for being late, even when they were not late, indicates only that Schwartz may have disliked or disfavored plaintiff, not that he was incompetent and that Guardian knew of any incompetence.
Plaintiff states that supervisor Jeff Evans failed to discover who sent voyeuristic messages to her, but she does not allege that Evans' incompetence was the reason for his failure to discover the perpetrator. Plaintiff has likewise failed to offer specific *876 allegations of incompetence regarding Evans walking next to her as she trained on the tow motor or his investigation into the spat vinyl incident that ultimately led to her termination. If anything, Evans' actions indicate a supervisor who took extra precautions in training and properly investigated employee complaints.
Plaintiff has not revealed any specific facts alleging the incompetence of her supervisors, or that Guardian knew of their incompetence and failed to act properly on that knowledge. Therefore, plaintiff's claim for negligent supervision and hiring fails.
D. Loss of Parental Consortium
Ohio recognizes the rights of both minor and adult children to recover for loss of parental consortium. Rolf v. Tri State Motor Transit Co., 91 Ohio St.3d 380, 383, 745 N.E.2d 424 (2001). The claim is intended to compensate the child "for harm done or for losses suffered as a result of injury to the parent and the parent-child relationship." Id. at 382, 745 N.E.2d 424.
Plaintiff's daughters allege loss of their mother's consortium due to her reduction in income when her employment with defendant was terminated. Their claim is derivative of plaintiff's. Because plaintiff's claims for violation of O.R.C. § 4112, violation of Ohio public policy, and negligent supervision and hiring fail, the claim for loss of parental consortium must also fail.
CONCLUSION
It is, therefore,
ORDERED THAT defendant Guardian's motion for summary judgment be, and hereby is, granted as to all claims.
So ordered.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED JUNE 11, 2014
NO. 03-13-00608-CV
Sharon L. Epstein; Paul J. Gebauer; Jessie B. Gebauer; Ira L. Epstein;
and All Occupants of 2335 Wright Circle, Round Rock, Texas 78664, Appellants
v.
Bank of America, N.A., Appellee
APPEAL FROM COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
BEFORE CHIEF JUSTICE JONES, JUSTICES PEMBERTON AND ROSE
DISMISSED FOR WANT OF PROSECUTION -- OPINION BY JUSTICE PEMBERTON
This is an appeal from the judgment signed by the trial court on February 20, 2013. Having
reviewed the record, the Court holds that the occupants of 2335 Wright Circle in Round Rock
have not prosecuted their appeal and did not comply with a notice from the Clerk of this Court.
The appeal is thus subject to dismissal. Therefore, the Court dismisses the appeal for want of
prosecution. The appellants shall pay all costs relating to this appeal, both in this Court and the
court below.
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NUMBER 13-07-00633-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ERIC DESHON SORRELLS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 331st District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Vela
Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Eric Deshon Sorrells, guilty of aggravated robbery, a first-degree felony, and assessed punishment at twenty years' imprisonment. See Tex. Penal
Code Ann. § 29.03 (Vernon 2003). In four points of error, Sorrells contends that: (1) the
trial court erred in refusing to charge the jury on the lesser-included offense of assault; (2)
the evidence supporting his conviction is legally insufficient; (3) the evidence supporting
his conviction is factually insufficient; and (4) the trial court erred in refusing to sever
Sorrells's case from his co-defendant. Because we hold that the evidence is legally
insufficient to prove aggravated robbery, we reform the judgment to reflect conviction of the
lesser-included offense of assault by threat and affirm the judgment as reformed. We
reverse the judgment as to punishment and remand the case for a new hearing on
punishment.I. Background
In the early morning hours of January 30, 2005, after spending a Saturday night on
Austin's Sixth Street, Frances Reynolds waited with a friend on a curb outside of the Spill
club ("Spill") for her boyfriend, Nathaniel Rice, who was retrieving her car from a nearby
parking lot. Reynolds had consumed a few cherry vodka sours, felt "a little bit" tipsy, and
the heels that she wore caused her feet to hurt; she therefore leaned against a silver
Mercedes SUV parked on the street. A white male approached Reynolds and told her to
"get off the car" because "he knew whose car it was." Reynolds stood up for a moment,
then leaned back onto the vehicle. The man walked away and into Spill. Moments later,
a black male wearing a "block style" black and gray sweater and a black leather jacket,
later identified as Sorrells, emerged from Spill. He approached Reynolds, and told her to
"get the f*** off the car" because she was damaging it. Reynolds turned to see if there
were any scratches on the hood; when she turned back around, she saw that Sorrells had
a gun. With gun in hand, Sorrells hit Reynolds across the side of the head. Reynolds
swung back in "self-defense." Sorrells pushed her, and she pushed back. The events that
ensued are best described from the vantage point of each witness.
1. The Altercation
Reynolds testified that shortly after the scuffle between she and Sorrells ensued,
her boyfriend, Rice, arrived on the scene. As Rice approached, Sorrells turned, pulled
back the slide of the gun, and said, "[D]o you have a problem with me, too?" Rice swung
and punched Sorrells, and the two started fighting. A man wearing a blue, "flannel-type"
jacket ran up to Rice and punched him. Rice fell to the ground. Reynolds then saw the
man in the flannel jacket hold a gun to the back of Rice's head. Reynolds ran to Spill's
entrance and asked for someone to call 911, but no one complied. When she turned back
to check on Rice, the altercation had ended. Rice had a bloody mouth, a black eye, and
a ripped shirt. He told Reynolds that his jewelry had been stolen.
Rice testified that after retrieving Reynolds's car, he drove to the front of Spill and
saw three black males standing at arms length from Reynolds. As Rice stepped out of the
car, he noticed Reynolds "scuffling, fighting, and arguing" with Sorrells. Rice approached,
asking, "[W]hat the h***?" At that moment, Sorrells "pulled out a gun and cocked it at
[Rice]"; this was the first time that Rice saw the gun. Sorrells pointed the gun at Rice's
torso, and Rice "pushed the gun out of the way and swung at Sorrells." Sorrells struck
back, hitting Rice with the gun. At that moment, a man wearing a flannel jacket punched
Rice on the right side of the head, Rice was knocked to the ground, and "jumped by
multiple people." At some point, the beating ceased, and the people hitting him dispersed.
Rice became aware that he was no longer wearing his Figaro necklace with a Versace lion
medallion, valued at approximately $1,000, or his three to four inch Versace cross
embellished with several diamonds, worth approximately $2,200. When police arrived
moments later, Rice told them that his jewelry had been stolen. As a result of the
altercation, Rice sustained scrapes, bruises, and a busted lip.
Reynolds and Rice's friend, Kevin Fritz, also testified. Fritz had accompanied Rice
to the parking lot to retrieve Reynolds's car. As the men drove to the front of Spill, Fritz
saw Reynolds arguing with Sorrells. Sorrells hit Reynolds, pulled out a gun, pulled the
slide back, and hit Reynolds again. Fritz followed as Rice got out of the car and
approached Sorrells. Upon noticing Rice, Sorrells turned and pointed the gun at Rice.
Rice took a swing at Sorrells, and then another man came up behind Rice and hit him in
the head. A third man joined the fight, and the two men "jumped" Rice. Fritz saw Sorrells
point a gun at Rice. Fritz ran up and pushed Sorrells out of the way. The men turned their
attention from Rice and began fighting with Fritz. Someone hit Fritz with a gun; after being
"dazed" and stumbling for a few seconds, Fritz looked up and saw the three men running
into Spill. At some point during the altercation, Fritz noticed Rice's lion medallion necklace
on the ground.
Rice's friend, Omar Ponce, testified that he was outside Spill on the night in question
and saw Rice arguing with a black male that he later identified as Andre Oliver, the co-defendant in this case. Ponce testified that as he moved towards Rice in an attempt to
intervene, Oliver pointed a gun at him. However, on cross-examination, Ponce testified
that a man wearing a black leather jacket pointed a gun at him, and that the man in the
black leather jacket was the only person that Ponce saw in possession of a gun.
2. The Apprehension
Officer Charles Riley testified that in the early morning hours of January 30, 2005,
he was dispatched to an incident outside of Spill. Officer Riley arrived on the scene within
twenty or thirty seconds and saw several people in front of Spill; everyone was loud and
yelling that "someone had taken something" and "someone had a gun." Officer Riley
learned that the gunman, a black male wearing a black leather jacket, had gone inside
Spill. Concerned he would have trouble entering Spill, Officer Riley ran down the block,
turned the corner and ran into the alley behind Spill. Officer Riley saw three individuals in
the otherwise desolate alley. The individuals were about three-quarters of the way down
the alley and were walking in the direction opposite Officer Riley. Officer Riley shouted,
"Austin police, show me your hands." The individuals continued walking, with their hands
in their pockets. Officer Riley quickly walked towards the individuals, continued to identify
himself, and asked to see their hands. He also radioed to other officers that three potential
suspects were in the alley. One individual, later identified as Rachel Hardeman, turned
and looked at Officer Riley, then, while still walking, removed her hand from her jacket
pocket and deposited an object into the side of a cardboard recycling receptacle. She then
placed her hand back inside her pocket. When additional officers arrived, Officer Riley
directed one to secure the receptacle, and the others assisted Officer Riley in detaining the
individuals.
After the individuals were secured, Officer Riley searched the receptacle. Inside,
he found "a bunch of boxes" and "a pistol." Officer Riley began his investigation by
focusing on Hardeman because she had thrown the gun into the receptacle. Officer Riley
noticed that the black leather jacket Hardeman was wearing was too big for her. Inside a
pocket of the jacket, Officer Riley located a lion medallion necklace, which was later
identified as the one Rice reported stolen. The other individuals detained were both black
males. One, later identified as Oliver, wore a blue denim jacket. An empty, collapsible
shoulder holster was found in an interior pocket of his jacket. The other man, later
identified as Sorrells, wore a black and tan sweater, but was not wearing a jacket. Rice's
$2,200 Versace cross was never found.
The officers placed each suspect in a separate patrol car and drove them to the
front of Spill. The officers separately asked Reyonlds, Rice, and Fritz if they could identify
any of the individuals in the patrol cars. No one identified Hardeman. Officer Brian Green
testified that he separately took Reynolds, Rice, and Fritz to the car where Sorrells was
seated. Each identified Sorrells as the man who had been wearing a black leather jacket.
On June 14, 2006, Sorrells was indicted by a grand jury for aggravated robbery.
Sorrells pleaded not guilty and, on August 14, 2007, was tried with Oliver by jury. After the
State's case in chief, Oliver called one witness, and Sorrells called none. The State
tendered the charge that was ultimately submitted to the jury. The tendered charge
abandoned the first paragraph of the indictment. (1) Sorrells requested the lesser-included
offense of assault, but his request was denied. The jury found Sorrells guilty of aggravated
robbery with a deadly weapon, the only offense the jury was instructed on, and assessed
punishment at twenty years' imprisonment. This appeal ensued.
II. Legal Sufficiency
In his second point of error, Sorrells challenges the legal sufficiency of the evidence
supporting his conviction.
A. Standard of Review and Applicable Law
In conducting a legal sufficiency review, the reviewing court must ask whether "'any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt'--not whether 'it believes that the evidence at the trial established guilt
beyond a reasonable doubt.'" Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App.
2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original)).
We do not reevaluate the weight and credibility of the evidence, and we do not substitute
our own judgment for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.
2000) (en banc); Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.-Houston [14th Dist.]
2000, pet. ref'd). Instead, we consider whether the jury reached a rational decision.
Beckham, 29 S.W.3d at 151. We must resolve any inconsistencies in the evidence in favor
of the judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Legal sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd). Under
a hypothetically correct jury charge, a person commits aggravated robbery "if he commits
robbery . . . and he . . . uses or exhibits a deadly weapon . . . ." Tex. Penal Code Ann. §
29.03. A firearm is a deadly weapon. Id. § 1.07(a)(17) (Vernon Supp. 2009). Robbery
requires a nexus between the assault and the theft. See Cooper v. State, 67 S.W.3d 221,
223 (Tex. Crim. App. 2002). A person commits robbery "if, in the course of committing
theft . . . and with intent to obtain or maintain control of the property, he . . . intentionally
or knowingly threatens or places another in fear of imminent bodily injury or death." Tex.
Penal Code Ann. § 29.02 (Vernon 2003). "In the course of committing theft" is defined
as "conduct that occurs in an attempt to commit, during the commission, or in immediate
flight after the attempt or commission of theft." Id. § 29.01(1) (Vernon 2003).
A person commits theft if he unlawfully appropriates property with intent to deprive
the owner of property; appropriation of property is unlawful if it is without the owner's
effective consent. Id. § 31.03(a), (b)(1) (Vernon Supp. 2009). The penal code defines
"[a]ppropriate" as "bring[ing] about a transfer or purported transfer or title to or other
nonpossessory interest in property, whether to the actor or another" or "acquir[ing] or
otherwise exercis[ing] control over property other than real property." Id. § 31.01(4)
(Vernon Supp. 2009). A person acts intentionally with respect to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the result.
Id. § 6.03(a) (Vernon 2003).
B. Legally Insufficient Evidence of Theft
Although juries are permitted "to draw multiple reasonable inferences as long as
each inference is supported by the evidence presented at trial," a jury is "not permitted to
draw conclusions based on speculation." Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.
Crim. App. 2007). In order to reach the conclusion that Sorrells committed aggravated
robbery, the jury was first required to find that he committed theft. (2) See Tex. Penal Code
Ann. § 29.02.
The jury heard testimony that Rice's necklace was found in the pocket of the jacket
worn by Hardeman. To support a finding of theft, the jury had to draw multiple inferences;
the jury had to infer that Sorrells gave his jacket to Hardeman after inferring that Sorrells
appropriated Rice's necklace and placed it in the pocket of the black leather jacket. The
first inference the jury had to make was that the black leather jacket worn by Hardeman at
the time of her apprehension belonged to Sorrells. The jury heard testimony that Sorrells
was wearing a black leather jacket at the time of the altercation and that after the
altercation he ran inside Spill. Shortly after the altercation, Sorrells, no longer wearing a
jacket, was found walking with Hardeman and Oliver in the alley behind Spill. When police
spotted the trio in the alley, officers testified that Sorrells was no longer wearing a black
leather jacket, and Hardeman was wearing a black leather jacket that appeared to be too
big for her. Based on this circumstantial evidence, the jury could have reasonably inferred
that the jacket worn by Hardeman belonged to Sorrells. See Hooper, 214 S.W.3d at 16.
The next inference the jury had to make was that Sorrells committed theft. There
is no direct evidence that theft occurred at the time of the assault. Similarly, there is scant
circumstantial evidence that Sorrells committed assault "in the course of committing theft."
The only evidence regarding the necklace that was presented to the jury was that: (1) Rice
was wearing his necklace when he confronted Sorrells; (2) after Oliver and another man
joined the altercation against Rice, Fritz saw Rice's necklace on the ground; (3) none of
the witnesses to the altercation identified Hardeman as being present at the time of the
altercation; (4) Sorrells, Oliver, and Hardeman were arrested behind Spill; and (5)
Hardeman was wearing a black leather jacket that contained Rice's necklace.
1. Aggravated Robbery as a Party
Texas law provides that a person is criminally responsible as a party to an offense
if the offense is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or both. See Tex. Penal Code Ann. § 7.01(a) (Vernon 2003). For
a defendant to be guilty under the law of parties, the State must prove the guilt of another
as the primary actor. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993);
Barnes v. State, 62 S.W.3d 288, 296 (Tex. App.-Austin 2001, pet. ref'd). Because the trial
court provided a parties charge to the jury, the State could establish the offense of theft by
showing that: (1) Sorrells himself unlawfully appropriated the lion medallion necklace; or
(2) Sorrells solicited, encouraged, directed, aided, or attempted to aid the primary actor
with the intention of promoting or assisting the primary actor with the theft. See Tex. Penal
Code Ann. §§ 7.01, 7.02 (Vernon 2003).
The only evidence the State presented that Oliver or the other unidentified man
involved in the assault committed theft was their participation in the assault. The State's
evidence does not prove beyond a reasonable doubt that either Oliver or the unidentified
man was the primary actor. Additionally, the only evidence the State presented to prove
that Hardeman was the primary actor was that Rice's necklace was found in the pocket of
the jacket that she was wearing. The possession of stolen property may justify an
inference of guilt if that possession is personal, recent, and unexplained and involves a
conscious assertion of control over the property. Grant v. State, 566 S.W.2d 954, 956
(Tex. Crim. App. 1978). Assuming, without deciding, that the State met its burden of
proving, beyond a reasonable doubt, that Hardeman was the primary actor, there is no
evidence that Sorrells solicited, encouraged, directed, aided, or attempted to aid Hardeman
in committing the theft. Therefore, the law of parties provides no support for the State's
argument that the evidence was legally sufficient.
2. Aggravated Robbery as a Principal
Mere presence of an accused at the scene of an offense is not alone sufficient to
support a conviction; however, it is a circumstance tending to prove guilt which, combined
with other facts, may suffice to show that the accused was a participant. Valdez v. State,
623 S.W.2d 317, 321 (Tex. Crim. App. 1979). We, therefore, must determine whether
Hardeman's possession of the necklace, coupled with Sorrells's presence at the scene of
the assault, provided the jury with sufficient evidence to infer that Sorrells, acting as the
principal, acquired Rice's necklace. Where a defendant is found in unexplained
possession of recently stolen property, the fact finder is permitted to draw an inference of
guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). "To warrant such a
presumption the possession must be personal, recent, and unexplained, and must involve
a distinct and conscious assertion of right to the property." Todd v. State, 601 S.W.2d 718,
720 (Tex. Crim. App. 1980). At the time of Sorrells's arrest, although the necklace was
found in a jacket that the jury could have inferred belonged to Sorrells, neither the jacket,
nor the necklace were found on his person; instead, Hardeman was wearing the jacket.
This evidence is insufficient to show that Sorrells had personal possession of the necklace
at any point in time or that he asserted a distinct and personal right to it. Cf. Rodriguez v.
State, 549 S.W.2d 747, 749 (Tex. Crim. App. 1977) (finding evidence insufficient to support
a theft conviction where a stolen file box was found in a closet of a bedroom which the
defendant shared with another). Therefore, evidence that the necklace was found in the
pocket of Sorrells's jacket does not create the permissible inference that he committed
theft.
Based on the foregoing, there were no facts in evidence from which a rational jury
could infer that Sorrells committed theft. See Laster, 275 S.W.3d at 518. Accordingly, the
evidence is legally insufficient to support a conviction of aggravated robbery.
C. Evidence is Insufficient to Prove a Nexus Between the Assault and the Theft
Even assuming that the evidence is sufficient to prove that Sorrells committed theft,
as previously noted, robbery requires a nexus between the assault and the theft. See
Cooper, 67 S.W.3d at 223 (Tex. Crim. App. 2002) ("the nexus requirement for capital
murder involving murder in the course of a robbery is the same as the nexus requirement
in a robbery between the assault and the theft"). Proof that theft was committed as an
afterthought, and unrelated to the assault, does not support a conviction for robbery. See
e.g., Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992) ("proof of a robbery
committed as an afterthought and unrelated to a murder would not provide sufficient
evidence of capital murder"). In the present case, no evidence was presented that an
intent to commit theft arose before the assault. However, Hardeman's possession of the
necklace provides some evidence that the intent to commit theft could have arisen during
or immediately after the assault. The general rule is that "a theft occurring immediately
after an assault will support an inference that the assault was intended to facilitate the
theft." Cooper, 67 S.W.3d at 224.
Although the court of criminal appeals has recognized that there may be
circumstances where "evidence of a motive other than theft can negate the natural
inference that arises when a theft immediately follows an assault," the court has held that
"the inference will not be negated by evidence of an alternative motive that the jury could
rationally disregard." Id. In the present case, the evidence revealed that Sorrells's motive
for the assault was to get Reynolds away from the silver Mercedes SUV and to keep Rice
from interfering. In light of the fact that (1) there is no evidence that Sorrells approached
Reynolds in an attempt to appropriate her property; (2) Sorrells did not approach Rice in
an attempt to appropriate his necklace; (3) there is no evidence that Sorrells was a party
to theft; and (4) no words, actions, or conduct during the commission of the assault indicate
that Rice's assault was committed to facilitate the appropriation of his necklace, a juror
could not rationally disregard that Sorrells's only motive was to move Reynolds from the
vehicle and keep Rice from interfering. While we do not condone Sorrells's heinous
actions, based on the evidence, we cannot conclude that Sorrells's assault of Rice was
intended to facilitate the theft of Rice's necklace. Therefore, the evidence is legally
insufficient to support Sorrells's conviction of aggravated robbery because no rational juror
could have found a nexus between Rice's assault and the appropriation of his necklace.
Sorrells's second issue is sustained.
III. Reformation of Judgment
A court of appeals may modify the trial court's judgment to reflect guilt of a lesser-included offense and affirm it as modified. Tex. R. App. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27-28 (Tex. Crim. App. 1993). However, the court may do this only if (1) the
court finds that the evidence is insufficient to support conviction of the charged offense but
sufficient to support conviction of the lesser-included offense and (2) either the jury was
instructed on the lesser-included offense or one of the parties asked for but was denied
such an instruction. (3) Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999)
(plurality opinion); Ross v. State, 9 S.W.3d 878, 882 (Tex. App.-Austin 2000, pet. ref'd).
In the present case, Sorrells requested an instruction on the lesser-included offense
of assault. The statutory definition of simple assault sets out three distinct criminal
offenses under section 22.01(a)(1)-(3). Tex. Penal Code Ann. § 22.01(a) (Vernon Supp.
2009). The penal code provides:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another,
including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury,
including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another person
when the person knows or should reasonably believe that the other will
regard the contact as offensive or provocative.
Id. These offenses are often referred to as: "bodily injury" assault, assault by threat, and
"offensive contact" assault. Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App.
2008). Because neither bodily injury nor offensive contact are required to prove
aggravated robbery as charged, neither section 22.01(a)(1) or (a)(3) are lesser-included
offenses. (4) See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007); see also
Tex. Penal Code Ann. § 22.01(a). However, because the elements required to prove
assault by threat are "established by proof of the same or less than all the facts required
to establish the commission of the offense charged," assault by threat, a Class C
misdemeanor, is a lesser-included offense. Tex. Code Crim. Proc. Ann. art. 37.09
(Vernon 2006); see Tex. Penal Code Ann. § 22.01(a)(2); (c).
The State offered ample evidence that Sorrells intentionally or knowingly threatened
Rice with imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2). "The gist of
the offense of assault, as set out in [s]ection 22.01(a)(2), is that one acts with intent to
cause a reasonable apprehension of imminent bodily injury (though not necessarily with
intent to inflict such harm)." Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).
Rice testified that Sorrells pointed a gun at him and hit him several times. The jury heard
similar testimony from Fritz and Reynolds. Additionally, Rice testified that he was "afraid"
when he saw Sorrells point the gun at him. Viewing this evidence in the light most
favorable to the verdict, we conclude that a rational trier of fact could have found beyond
a reasonable doubt that Sorrells intentionally or knowingly threatened Rice with imminent
bodily injury. See McGowan v. State, 664 S.W.2d 355, 357-58 (Tex. Crim. App. 1984).
We therefore hold that the evidence is legally sufficient to support a conviction of assault
by threat.
The evidence is also factually sufficient to support a conviction of assault by threat.
Reynolds testified that Sorrells pointed a gun at Rice. She testified that during the
encounter, Sorrells was wearing a "block-style" black and gray sweater with a leather
jacket. Additionally, Rice and Fritz also testified that a black male wearing a black leather
jacket pointed a gun at Rice. There were some inconsistencies in the manner and at which
point of the altercation Sorrells pointed a gun at Rice; however, Reynolds, Rice, and Fritz
each identified Sorrells as the man who pointed a gun at Rice. The jury heard conflicting
testimony from Ponce, who testified on direct examination that, Oliver, Sorrells's co-defendant, was the only man who had a gun. However, on cross-examination, Ponce
testified that a man wearing a black leather jacket was the only man who had a gun.
Reviewing the evidence in a neutral light, we cannot conclude that the evidence is so weak
that a conviction would be clearly wrong and manifestly unjust or that it would be against
the great weight and preponderance of the evidence. See e.g., Watson, 204 S.W.3d at
414-15. We conclude that the evidence is factually sufficient to support a conviction of
assault by threat. Accordingly, we will reform the judgment to reflect a conviction of the
lesser-included offense of assault by threat. See English v. State, 171 S.W.3d 625, 629-30
(Tex. App.-Houston [14th Dist] 2005, no pet.). Because the punishment for Sorrells's
original conviction differs from the conviction as reformed, we reverse that part of the
judgment assessing punishment. See id. at 631; see also Garrett v. State, 161 S.W.3d
664, 672 (Tex. App.-Fort Worth 2005, pet. ref'd).
IV. Conclusion
We reform the judgment of guilt to reflect conviction of the lesser-included offense
of assault by threat and affirm the judgment as reformed. We reverse the judgment as to
punishment and remand the case to the trial court for a new hearing on punishment. (5)
________________________
ROGELIO VALDEZ
Chief Justice
Dissenting Memorandum Opinion
by Justice Vela.
Do Not Publish. Tex. R. App. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 12th day of November, 2009.
1. The first paragraph provided that:
Sorrells . . . did then and there, while in the course of committing theft of property and with
intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly
cause bodily injury to Nathaniel Rice by hitting Nathaniel Rice with a hand, and the said Eric
Deshon Sorrells did then and there use or exhibit a deadly weapon, to-wit: a firearm[.]
(Emphasis added).
2. The dissent contends that we have erroneously reviewed the evidence by focusing on a completed
theft. Although we agree that aggravated robbery may be proven by attempted theft, based on the evidence
presented, the dissent's conclusion that Sorrells "attempted to acquire" Rice's necklace is incongruous with
the inferences the dissent concludes that the jury made. The dissent argues that "a rational jury could
reasonably conclude that Sorrells attempted to appropriate Rice's necklace by picking it up and putting it in
his jacket pocket." However, if it is reasonable for the jury to infer that Sorrells, with the intent to deprive Rice
of his property, picked up Rice's necklace and put it in his jacket pocket, the jury implicitly found Sorrells guilty
of a complete, rather than an attempted, theft. See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009).
A person attempts to commit theft if he, with specific intent to commit theft, "does an act amounting
to more than mere preparation that tends but fails to effect the commission of the offense intended." Id. §
15.01(a) (Vernon 2003). Theft involves the act of unlawful appropriation. See id. § 31.03(a), (b)(1). A person
unlawfully appropriates another's property when, without the owner's effective consent, he "acquire[s] or
otherwise exercises control over property other than real property." Id. § 31.01(4) (Vernon Supp. 2009). A
person who, with the intent to deprive, and without the owner's effective consent, picks up the property of
another and places it in his pocket, commits theft. See id. § 31.03(a), (b)(1).
In an attempt to lessen the amount of evidence required to support Sorrells's aggravated robbery
conviction, the dissent endeavors to lessen the evidence required to prove aggravated robbery by stating that
the jury's inferences do not have to be great enough to prove a completed theft, and that they merely have
to prove that a lesser offense, an attempt, occurred. While we agree that an aggravated robbery conviction
may be based on attempted theft, we do not agree, as the dissent implicitly advocates, that a jury can infer
that although Sorrells intended to deprive Rice of his property when he appropriated the necklace, no
completed theft occurred. Indeed, the act of unlawful appropriation, when coupled with the intent to deprive
the owner of his property, is the very definition of theft. See id. Therefore, because Sorrells's conviction of
aggravated robbery will only stand if the jury infers that Sorrells appropriated Rice's necklace, we focus our
analysis on whether the jury could reasonably infer that Sorrells committed theft.
3. Although the evidence seems to support a conviction for aggravated assault, neither party requested
a lesser-included instruction for that offense. Therefore, our analysis is limited to simple assault. See Collier
v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality opinion).
4. After dropping the first paragraph of the indictment, the indictment read:
Sorrells did then and there, while in the course of committing theft of property and with intent
to obtain or maintain control of said property, intentionally or knowingly threaten or place
Nathaniel Rice in fear of imminent bodily injury or death, and the said Eric Deshon
Sorrells did then and there use or exhibit a deadly weapon, to-wit: a firearm[.]
(Emphasis added).
5. In light of our disposition, we need not discuss Sorrells's remaining issues. These issues, which
concern the denial of Sorrells's request for a jury charge on the lesser-included offense of assault, factual
sufficiency, and the denial of Sorrells's motion to sever would not afford Sorrells any greater relief than already
afforded herein. See Tex. R. App. P. 47.1.
| {
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} |
884 So.2d 341 (2004)
Wilma SMITH, individually and on behalf of all others similarly situated, Appellant,
v.
FOREMOST INSURANCE COMPANY, a foreign corporation; and American Federation Insurance Company, a Florida Corporation, Appellees.
No. 2D03-286.
District Court of Appeal of Florida, Second District.
September 10, 2004.
James E. Felman and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Appellant.
Steven G. Koeppel of Troy, Yeslow & Koeppel, P.A., Ft. Myers; and Marcy Levine Aldrich, Nancy A. Cooperthwaite, and Valerie B. Itkoff of Akerman Senterfitt, Miami, for Appellees.
*342 COVINGTON, Judge.
Wilma Smith appeals the trial court's order granting summary judgment in favor of American Federation Insurance Company and its Florida subsidiary, Foremost Insurance Company, and denying Smith's cross-motion for summary judgment. Because we conclude the trial court erred in ruling that Foremost's premium service charges were not subject to part XVI of the Florida Insurance Code, we reverse the summary judgment in favor of Foremost and American Federation.
Smith purchased automobile insurance from Foremost Insurance Company. Rather than paying the entire annual premium at the policy's inception, Smith elected to pay her premium through the "Flex-A-Bill" payment plan. This allowed her to pay the premium in installments for a $5 "service fee" to be included with each installment payment.
Smith, on behalf of herself and others similarly situated, alleged in her complaint that these fees violated the premium financing statutes of Florida Insurance Code parts XV and XVI, sections 627.826-.849 and 627.901-.904, Florida Statutes (1995), respectively. Smith alleged that Foremost assessed more than the statutes permitted for service charges or interest on premiums paid in installments. She sought a declaratory judgment and injunctive relief as well as statutory damages, pursuant to section 627.835, of twice the service fees paid.
Part XVI of the insurance code, which addresses premium financing by insurance companies and agents, provides, inter alia:
627.901 Premium financing by an insurance agent or agency.
(1) A general lines agent may make reasonable service charges for financing insurance premiums on policies issued or business produced by such an agent or agency.... The service charge shall not exceed $1 per installment, or a $6 total service charge per year, for any premium balance of $120 or less. For any premium balance greater than $120 but not more than $220, the service charge shall not exceed $9 per year. The maximum service charge of $1 per installment for any premium balance greater than $220 shall not exceed $12 per year. In lieu of such service charges, an insurance agent or agency may charge a rate of interest not to exceed 18 percent simple interest per year on the unpaid balance.
(2) Every such agent or agency engaging in premium financing whose service charge or rate of interest is more than as provided in subsection (1) shall be subject to part XV of this chapter. 627.902 Premium financing by an insurer or subsidiary.An insurer, a subsidiary of an insurer, or a corporation under substantially the same management or control as an authorized insurer or group of authorized insurers may finance property, casualty, surety, and marine insurance premiums on policies issued or business produced by such insurer or insurers; however, any such insurer, subsidiary, or corporation or group of insurers the service charge or rate of interest of which is substantially more than that provided in s. 627.901 shall be subject to part XV of this chapter.[1]
*343 Part XV regulates "premium finance companies," defined as persons in the business, in whole or in part, of entering into or acquiring premium finance agreements with insureds. § 627.826.
The trial court ruled, and appellees Foremost and American Federation maintain, that the fees charged to administer Smith's installment premium payments were not subject to the premium financing statutes because they did not constitute an "advancement of funds or credit." The trial court's order granting summary judgment added that even if the service fees were governed by the statutes, they did not exceed the maximum amounts allowed.
Section 627.901 of part XVI provides two options for premium financing by an insurance agent or agency: a general lines agent may charge either (1) a maximum service charge of $1 per installment or a total of $6-$12 per year depending on the amount of the premium balance or (2) "in lieu of such service charges, ... a rate of interest not to exceed 18 percent simple interest per year on the unpaid balance." Section 627.902 allows an insurer or subsidiary such as American Federation or Foremost the same two options as long as such service charge or rate of interest is not "substantially more than that provided in s. 627.901." If such charges are "substantially more" than that, the insurer or subsidiary is subject to part XV of the insurance code, which regulates insurance finance companies and requires department licensure and use of department-approved premium finance agreements. §§ 627.902, 627.826-.849.
In ruling that Foremost's charges were not subject to the premium financing statutes because Foremost did not "advance any funds or credit to Smith," the trial court's order cited Capital National Financial Corp. v. Department of Insurance, 690 So.2d 1335, 1336 (Fla. 3d DCA 1997), and Gerlach v. Allstate Insurance Co., 338 F.Supp. 642, 647-49 (S.D.Fla.1972). These cases are distinguishable. Although Gerlach dealt with an insurer that charged premium installment service fees, the issue decided in Gerlach was whether this arrangement *344 constituted a "consumer credit transaction" within the meaning of the Truth in Lending Act, 15 U.S.C. § 1640(a). See 338 F.Supp. at 646.
Gerlach argued that such transactions fell within the scope of the Truth in Lending Act, rendering Allstate, as a creditor, subject to liability to debtor Gerlach for a $100 penalty and reasonable attorney's fees for failing to disclose required information. Id. at 647. The Gerlach court dismissed the action, ruling that, considering the Act's definitions of creditor and consumer credit, Allstate's premium installment transactions were outside the scope of the Act because the insured was not contractually obligated to make premium payments. Id. at 648.
Gerlach, although distinguishable because it addressed an issue unrelated to the issues in this case, is helpful here in that the court points out the difference between the Gerlach-Allstate transaction, governed by part XVI, and a transaction between an insured and a premium financing company under a promissory note or similar agreement:
The transaction in this action is not to be confused with the premium financing transaction, where the insured becomes obligated to a broker, bank, the issuing company or other creditor to pay the premium, or an indebtedness for premiums, and is contractually obligated to make payments.... There, of course, the creditor-debtor relationship comes into existence between the insured and the party he is obligated to pay.
Id. at 647 (citation omitted). Similarly here, Smith's transactions with insurer Foremost, which fall within part XVI, section 627.902 of the Florida Insurance Code, are not to be confused with an insured's transaction with a premium financing company as defined by part XV.
Section 627.848(1)(e) of part XV sets forth the procedure to follow when a policy is cancelled due to an insured's default in paying a premium financing company:
[T]he insurer shall promptly return the unpaid balance due under the finance contract, up to the gross amount available upon the cancellation of the policy, to the premium finance company and any remaining unearned premium to the agent or the insured, or both, for the benefit of the insured or insureds.
It is evident from this language that part XV contemplates a creditor/debtor relationship between the financing company and the insured, with the financing company advancing the entire premium to the insurer on behalf of the insured, who repays the financing company.
The trial court here also cited Capital National for its holding that the term "financing" in section 627.827 of part XV of the code "as it is used in that context is the advancement of money rather than the mere collection of funds." 690 So.2d at 1336. This case is distinguishable because Foremost is not a "premium finance company," as defined by section 627.827, in the business of "advancing" premium payments for insureds via premium finance agreements. Discussing the advancement of funds may very well be appropriate when applied to transactions conducted by premium financing companies, in which there are three parties: the insurance company, to which the premiums are advanced; the premium financing company, which advances the premiums and is repaid by the customer; and the customer. When the only two parties to the transaction are the insurer and the customer, however, there is no need for the insurer to "advance" funds to itself. While this does not involve the "advancement" of funds, it is "financing" as contemplated by part XVI, which specifically addresses insurers *345 such as Foremost, to whom the insureds pay the premiums.
Insurance premiums are strictly regulated under Florida law. Dep't of Ins. v. Dade County Consumer Advocate's Office, 492 So.2d 1032, 1041-42 (Fla.1986). The only provisions of Florida law permitting an insurer to collect an additional amount from the insured when the premium is paid in installments are the premium financing statutes contained in parts XV and XVI. Foremost itself apparently considered its Flex-a-Bill plan to be "premium financing" subject to part XVI because it filed a service charge and interest rate plan with the Department of Insurance as required under section 627.904.
We conclude as a matter of law that premium financing statutes section 627.904 governed Foremost's service fees. Therefore, we reverse the trial court's ruling that they did not.
Foremost's bills sent to Smith identified its charges as "service fees" rather than "interest" and did not identify the charges as representing interest on unpaid balances. The plain language of part XVI, section 627.901, as it read at the time of the transactions in this case, limited service fees for agents or agencies to $1 per installment and $12 total per year, or alternatively they can charge interest not to exceed 18 percent simple interest. If an agent or agency charges more than those limits, it becomes subject to part XV, which governs premium finance companies, and must comply with its requirements, such as licensing, department approval, record keeping, and limitations on charges. Insurers and subsidiaries such as Foremost also become subject to part XV, pursuant to part XVI, section 627.902, if the total service charge per year or interest rate "is substantially more than that provided in s. 627.901...."
The record indicates Foremost charged Smith $5 per installment and $10, $20, and $50 total for various years on the Flex-a-Bill plan. In the years in which Foremost charged Smith $20 and $50, these amounts clearly exceeded the $12-per-year limit as service fees. We conclude that at least some of Foremost's charges also exceeded 18 percent simple interest per year.
The legislative history of chapter 2002-252, Laws of Florida, which amended section 627.901, illustrates the proper calculation and billing of interest charges when premiums are financed by insurance agents, agencies, or companies. Fla. H.R. Comm. on Ins., CS/HB 1247 (2002) Staff Analysis (February 6, 2002) (on file with comm.). Committee analysis of house bill 1247 includes a Department of Insurance chart illustrating the maximum interest charges allowed, at 18 percent simple interest, for a $1000 premium on a hypothetical six-month policy with two months down payment ($333) and equal installments at months 3, 4, 5, and 6:
Number of Months Monthly Maximum
Principal Payments Outstanding since prior interest Charge
Payment Outstanding Balance payment rate Allowed
$ 333.00
$ 166.75 4 $ 667.00 2 1.50% $20.01
$ 166.75 3 $ 500.25 1 1.50% $ 7.50
$ 166.75 2 $ 333.50 1 1.50% $ 5.00
$ 166.75 1 $ 166.75 1 1.50% $ 2.50
$1000.00 $2334.50 $35.02
*346 Id. at 3. Applying this method to the case at hand, Foremost charged Smith more than 18 percent simple interest for at least some of the individual installment payments each year. The charges for Smith's $1058 premium on her 1995-1996 one-year policy, for example, were $5 each at the time of the down payment ($318.47) and three equal installments at months 3, 6, and 9:
Outstanding Months Maximum
Number of Balance since monthly Maximum
Principal Payments before prior interest interest Actual
Payment Outstanding payment payment rate allowed Charge
$ 318.47 -0- $ 5.00*
$ 246.51 3 $739.53 3 1.50% $ 7.50 $ 5.00
$ 246.51 2 $493.02 3 1.50% $ 5.00 $ 5.00
$ 246.51 1 $246.51 3 1.50% $ 2.50 $ 5.00*
$1058.00 $35.02 $20.00
The total $20 charged exceeds the $12 statutory annual threshold for service fees. Foremost, however, is arguing its charges were interest. As a total, the $20 does not exceed 18 percent annual interest on the $1058 premium. However, the $5 charge at the time of the down payment, before any interest could have accrued, and the $5 charge at the last installment, when the previous outstanding balance was $246.51, each exceeds 18 percent simple annual interest.* The trial court did not address whether these amounts were "substantially more than" the maximum 18 percent provided in section 627.901 for insurance agents or agencies. We therefore reverse the trial court's ruling on summary judgment that Foremost never charged an amount that exceeded the statutory maximum.
We affirm the denial of Smith's cross-motion for summary judgment. A question of material fact remains as to whether the service charges Foremost assessed to Smith and others similarly situated were "substantially more than that provided in s[ection] 627.901," which would subject Foremost to part XV of the code, see § 627.902, and penalties for any noncompliance. Summary judgment is inappropriate at this juncture, and we remand for further proceedings consistent with this opinion. See Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 936 (Fla.2000); Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).
Reversed in part, affirmed in part, and remanded.
NORTHCUTT and DAVIS, JJ., Concur.
NOTES
[1] The legislature amended section 627.901, effective May 13, 2002, to read in pertinent part:
(1) ... The service charge shall not exceed $3 per installment. The maximum service charge shall not exceed $36 per year. In lieu of such service charges, an insurance agent or agency, at the sole discretion of such agent or agency, may charge a rate of interest not to exceed 18 percent simple interest per year on:
(a) The unpaid balance; or
(b) The average unpaid balance as billed over the term of the policy and subject to endorsement changes. The interest authorized by this paragraph may be billed in equal installments.
The same amendment added the following to section 627.902:
Notwithstanding any other provision of law, an insurer, a subsidiary of an insurer, or a corporation under substantially the same management or control as an authorized insurer or group of authorized insurers may charge one-half of the additional charge provided in s. 627.840 [which allows a $20 maximum "additional charge" per 12-month period], and the charges provided in s. 627.841 [late fees, attorney's fees, and insufficient funds charges].
Ch.2002-252, §§ 1-2, at 1821-22, Laws of Fla. We have not considered the amended statute here, however, because we conclude it is substantive rather than procedural and therefore not retroactive. See Merrill Lynch Trust Co. v. Alzheimer's Lifeliners Ass'n, 832 So.2d 948, 952 (Fla. 2d DCA 2002). Furthermore, the statute contains no clearly expressed legislative intent that it operate retroactively. See Thayer v. State, 335 So.2d 815, 817-18 (Fla.1976). We reject Smith's argument that the amendments merely clarify the prior language. Cf. Blackshears II Aluminum, Inc. v. Dep't of Revenue, 641 So.2d 928, 929 (Fla. 5th DCA 1994) (comparing State ex rel. Szabo Food Serv., Inc. v. Dickinson, 286 So.2d 529 (Fla.1973) (holding amendment to sales and use tax law was intended to clarify rather than change statute and was thus retroactive), with Dep't of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353 (Fla.1977) (holding statutory changes not retroactively applicable where amendment changed penalties for failure to pay taxes)).
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T.C. Memo. 2000-326
UNITED STATES TAX COURT
GARY BLORE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 19662-98, 19882-98, Filed October 20, 2000.
19884-98.
Frederick J. O’Laughlin, for petitioner.
Brian A. Smith, for respondent.
MEMORANDUM OPINION
DINAN, Special Trial Judge: Respondent determined
deficiencies in petitioner’s Federal income taxes in the amounts
of $3,465, $4,112, and $4,651 for the taxable years 1995, 1996,
and 1997. Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the years in issue, and
- 2 -
all Rule references are to the Tax Court Rules of Practice and Procedure.
The issues for decision are: (1) Whether there are
deficiencies at issue in these cases within the meaning of
section 6211; and (2) whether petitioner had earned income during
the years in issue, entitling him to a section 32 earned income
credit for each year.
Some of the facts have been stipulated and are so found.
The stipulations of fact and the attached exhibits are
incorporated herein by this reference. Petitioner resided in
Oklahoma City, Oklahoma, on the dates the petitions were filed in
these cases.
Petitioner reported the following amounts of income and
claimed the following amounts of withholding and earned income
credits in the respective taxable years:
1995 1996 1997
Wages $5,260 $6,236 $7,398
Interest income -0- 120 -0-
Standard deduction (5,750) (5,900) (6,050)
Personal exemptions (5,000) (5,100) (5,300)
Taxable income -0- -0- -0-
Tax -0- -0- -0-
Federal tax withholding (1,671) (1,995) (2,441)
Earned income credit (1,794) (2,117) (2,210)
Overpayment (3,465) (4,112) (4,651)
In the statutory notices of deficiency, respondent disallowed the
amounts of wages reported by petitioner for each of the taxable
- 3 -
years 1995, 1996, and 1997. The notices reflected the following
basis for the disallowance:
The income on the W2s on your 1995, 1996, and 1997 returns
was never reported to the Internal Revenue Service by any of
the employers listed. You failed to produce any
documentation to support the W2 income claimed. We are
disallowing the income claimed attached to the W2s filed
with your 1995, 1996, and 1997 tax returns.
Based upon the disallowance of the income, respondent also
disallowed the earned income credits claimed by petitioner in
each year. The first pages of the notices of deficiency
reflected the following total deficiency amounts, calculated
using the respective credit adjustments:
1995 1996 1997
Earned Income Credit Adjustment $1,794 $2,117 $2,210
Withholding Credit Adjustment 1,671 1,995 2,441
Deficiency 3,465 4,112 4,651
Pursuant to Orders of this Court, these cases were dismissed for
lack of jurisdiction insofar as they related to the withholding
tax credits. See generally sec. 6211(a) and (b)(1); Redcay v.
Commissioner, 12 T.C. 806 (1949). These dismissals reduced the
amounts of the deficiencies at issue in these cases to $1,794,
$2,117, and $2,210 for each respective year.
The first issue for decision is whether there are
deficiencies at issue in these cases. Petitioner argues that
there are no deficiencies in these cases within the meaning of
such under sections 6211, et seq.
- 4 -
As is relevant here, a deficiency is defined in section
6211(a) to be “the amount by which the tax imposed by subtitle A
[relating to income taxes] * * * exceeds * * * the amount shown
as the tax by the taxpayer upon his return”. The treatment of
section 32 earned income credits with respect to this definition
is as follows:
SEC. 6211(b). Rules for Application of Subsection
(a).--For purposes of this section--
* * * * * * *
(4) For purposes of subsection (a)--
(A) any excess of the sum of the credits
allowable under sections 32 and 34 over the tax
imposed by subtitle A (determined without regard
to such credits), and
(B) any excess of the sum of such credits as
shown by the taxpayer on his return over the
amount shown as the tax by the taxpayer on such
return (determined without regard to such
credits),
shall be taken into account as negative amounts of tax.
Section 6211(b)(4) was enacted by section 1015(r) of the
Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100-647,
102 Stat. 3572, which relates to certain refundable credits to be
assessed under deficiency procedures. House Report 100-795
contains the following explanation of section 6211(b)(4):
Present Law
Under present law, the deficiency procedures
allowing taxpayers to litigate issues in the Tax Court
relating to the earned income credit (sec. 32) and the
- 5 -
credit for the certain payments of the gasoline and
special fuels tax (sec. 34) may not apply.
Explanation of Provision
The bill provides that the Tax Court deficiency
procedures apply to the credits allowable under
sections 32 and 34, notwithstanding that the credits
reduce the net tax to less than zero.
The provision applies to notices of deficiencies
mailed after the date of enactment of this bill.
H. Rept. 100-795, at 366 (1988).
Although respondent determined petitioner was liable for a
zero tax liability in each taxable year, these amounts
nevertheless exceed the negative tax liability amounts shown by
petitioner on his return for each such year. Respondent has
therefore determined deficiencies within the meaning of section
6211, and the redetermination of such deficiencies is within the
jurisdiction of this Court. See sec. 6213(a).
The second issue for decision is whether petitioner had
earned income during the years in issue, entitling him to a
section 32 earned income credit for each year.
An earned income credit is allowed to eligible taxpayers
under section 32(a) in an amount based upon a percentage of the
taxpayer’s earned income. Earned income is defined under section
32(c)(2) to include wages and other employee compensation.
Petitioner argues that he earned compensation in the amounts
indicated on the Forms W-2, Wage and Tax Statement, filed with
- 6 -
his tax returns for the years in issue, thereby entitling him to
an earned income credit for each such year.
Petitioner bears the burden of proving the determinations
set forth by respondent in the statutory notices of deficiency to
be in error. See Rule 142(a); Welch v. Helvering, 290 U.S. 111
(1933).
Petitioner’s testimony concerning his purported income can
be summarized as follows. During the years in issue, petitioner
performed services for Jerry Tomlin, who at some point in time
changed his name to Jerry Wilson (hereinafter referred to only as
Mr. Tomlin). Mr. Tomlin in turn worked for a business or
businesses known as Johnson, Inc., and Quantum Consultants, Inc.
It was from these corporations that petitioner received the Forms
W-2 which he attached to his income tax returns for the years in
issue. The 1995 Form W-2 listed the employer as Johnson, Inc.,
while the 1996 and 1997 Forms W-2 listed the employer as Quantum
Consultants, Inc. Petitioner was initially contacted by Mr.
Tomlin after petitioner had been recommended by a friend. Mr.
Tomlin would meet petitioner at petitioner’s home, provide him
with architectural plans, and explain the work which needed to be
completed. Petitioner served as a draftsman, drawing cabinet
plans for houses which were under construction in Oklahoma,
Texas, Arizona, Colorado, and California. Petitioner never knew
the exact locations of the houses for which he was making the
- 7 -
drawings. Petitioner was paid $25 an hour for his work, less
amounts Mr. Tomlin would withhold for taxes. Petitioner was
typically paid in cash because he refused Mr. Tomlin’s checks
after having several returned for insufficient funds.
Petitioner produced copies of several receipts written by
him purportedly evidencing a portion of the cash payments made to
him by Mr. Tomlin. The receipts each named Mr. Tomlin and/or
Johnson, Inc., or Quantum Consultants, Inc. The receipts dated
1995 were in the amounts of $950, $700, and $550. The receipts
dated 1996 were in the amounts of $1,000, $2,100, $600, and $500.
The receipts dated 1997 were in the amounts of $800, $1,500,
$1,000, and $1,300. These amounts do not correspond to the
amounts which were reflected on the Forms W-2 and which
petitioner reported as income. Although petitioner testified
that he did not attempt to match these receipts to the Forms W-2,
there is a notation on a statement presented as evidence which
states: “Jerry you still owe me $1500.00 on my last pay * * *
you also included this on the W-2 but you did not pay.”
Two witnesses testified on petitioner’s behalf. The first
witness, Michael Blore, is petitioner’s son. Petitioner
testified that Michael was present “almost every time the man
[Mr. Tomlin] came by, especially whenever he would pay me.”
Michael, on the other hand, testified concerning only one meeting
between Mr. Tomlin and petitioner at which he was present. He
- 8 -
testified that he did “remember the meeting * * * I was only
there for a brief moment.” He also stated that the “only thing I
observed of him [Mr. Tomlin], that he was a tall man, and that’s
about all I caught.”
The second witness, James Ryan, was petitioner’s neighbor.
Petitioner testified that Mr. Ryan met Mr. Tomlin on several
occasions, and that Mr. Ryan accompanied petitioner to a bank at
which petitioner cashed a check from Mr. Tomlin. Mr. Ryan
testified that, while at the bank several years prior to his
testimony, he waited in the truck while petitioner cashed a
check. He did not know any details regarding the check or the
purpose of petitioner’s visit to the bank. He also testified
that he did not recall meeting Mr. Tomlin at any time.
Although petitioner produced some evidence tending to show
that he received wages for services rendered in 1995 through
1997, viewing the record as a whole we find that this evidence is
outweighed both by the inconsistencies in the testimony of the
witnesses, noted above, and by the dearth of evidence in several
key areas. Petitioner failed to produce Mr. Tomlin as a witness
or adequately explain his whereabouts, and failed to produce any
corroborating evidence which would establish that Mr. Tomlin in
fact existed and that he paid petitioner for services rendered.
Petitioner failed to establish the existence or location of
either of the two corporations named on the Forms W-2, and failed
- 9 -
to adequately explain why he either did not visit them in the 3
years he was allegedly receiving income from them through Mr.
Tomlin, or why he was unconcerned that he was unable to locate
these corporations. Finally, petitioner did not present evidence
of any services which he had performed, such as the architectural
drawings involved.
Because petitioner has failed to establish he had earned
income in any of the years in issue, we uphold respondent’s
determination that petitioner is not entitled to the earned
income credit for each year.
To reflect the foregoing,
Decisions will be entered
for respondent in the amounts of
the reduced deficiencies.
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STATE OF MISSOURI, )
)
Respondent, )
)
v. ) No. SD36171
) Filed: July 13, 2020
RANDY HARLON RICHARDSON, )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY
Honorable Kelly W. Parker, Judge
AFFIRMED
Randy Harlon Richardson (“Richardson”) appeals his conviction of one count of rape in
the first degree. In one point relied on, Richardson argues the trial court erred in denying his
motion to dismiss after the State failed to preserve Victim’s cellphone, in that such failure
constituted bad faith on behalf of the State. Finding no merit to Richardson’s point, we deny the
same and affirm the judgment of the trial court.
Facts and Procedural Background
Richardson does not challenge the sufficiency of the evidence to support his conviction.
We recite the evidence and the reasonable available inferences therefrom in the light most
favorable to the verdict. State v. Lammers, 479 S.W.3d 624, 630 (Mo. banc 2016). We recite
other information as necessary for context.
On March 20, 2018, Richardson physically and sexually assaulted Victim. Victim
subsequently reported the assault, and Richardson was apprehended. In an interview with law
enforcement, Richardson claimed the sexual contact with Victim was consensual, and that it was
demonstrated by text messages exchanged between the parties the day of, and two days prior to,
the assault.
Richardson was charged, by amended information, as a persistent offender, with the
unclassified felony of rape in the first degree, pursuant to section 566.030. 1
On April 17, 2018, Richardson filed a “Motion to Preserve Evidence” requesting, in part,
preservation of Victim’s cellphone, and specifically any text messages or phone calls between
Victim and Richardson between March 18, 2018 and March 22, 2018.
The morning of the preliminary hearing on April 19, 2018, Judge Randall Head heard
argument on Richardson’s motion to preserve evidence. The motion hearing was not recorded.
No formal written order was entered, and no docket entry was made in CaseNet that covered the
time period surrounding the hearing. 2 The recorded transcript from the preliminary hearing
contained no reference to the motion to preserve evidence or the judge’s oral ruling on that motion.
1
All references to statutes are to RSMo Cum.Supp. 2013, unless otherwise indicated.
2
At the preliminary hearing, Victim testified she did not remember having any interaction with Richardson outside of
work, including texting or any kind of messaging, between the dates of March 17-19, 2018. Victim indicated,
however, that Richardson did contact Victim through an instant message on Facebook on March 20, 2018, the day the
sexual assault occurred. On cross-examination, Victim testified she had allowed Richardson to borrow her phone, at
which time he placed on it an app that allowed him to send her encrypted messages through Facebook Secret
2
On September 10, 2018, Richardson filed a motion to compel the production of Victim’s
cellphone.
On September 21, 2018, Richardson filed a motion to dismiss alleging that Judge Head had
sustained the motion to preserve evidence after the preliminary hearing. The motion alleged that
Victim was present with her cellphone when the motion was sustained, and that several law
enforcement officers were also present. The motion further alleged that defense counsel was later
informed by the prosecutor that the Missouri State Highway Patrol (“MSHP’) did not collect
Victim’s cellphone because “based on their training and experience, when information is sent via
Facebook Messenger encrypted ‘Secret Messenger’ no information is retained on the device.” The
motion also alleged that the contents of the cellphone were essential to the defense’s theory of the
case (i.e., that the sexual incident was consensual).
On September 24, 2018, a hearing was held on the motion to dismiss. Defense counsel
advised the trial court that when she went to file her motion to dismiss, she did not see a docket
entry reflecting Judge Head’s ruling on the motion to preserve evidence. She contacted the clerk
regarding this omission, and the clerk made a retroactive docket entry based on the judge’s verbal
ruling. The prosecutor noted that the recording of the preliminary hearing did not contain any
ruling on the motion and that the ruling did not appear on CaseNet until September 19, 2018.
However, when the trial court specifically inquired of the prosecutor, “Any doubt that Judge Head
did issue that order on the day that he did the bind over? On behalf of the state?” The prosecutor
replied, “[Judge Head] says he did it so he did it.”
Defense counsel then proposed that if the trial court did not dismiss the case, “the only
thing that I can think of and I could file a separate motion to take up pre-trial if you’d like is I
Messenger. Victim stated that these messages are only retained under this app for a brief period of time before they
are automatically erased.
3
would want a curative jury instruction that is mentioned in [Arizona v.] Youngblood[,] [488 U.S.
51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)].” The trial court indicated it was familiar with that
type of instruction, and observed that the remedial instruction in Youngblood was “very similar to
the remedy that I was going to grant[,]” and further indicated it would “need to give [defense
counsel] some wide latitude on the defense side to cross examine the witnesses, . . . to argue about
the adverse inference to the state,” and “to argue that the jury should infer from the failure to
preserve the phone that the contents would be adverse to the state’s position.”
On September 28, 2018, the trial court held a second hearing on this issue, at which Judge
Head testified under subpoena from both parties. Judge Head testified that to the best of his
recollection, defense counsel’s motion to preserve evidence was sustained, but he had no “memory
of the order per say [sic] except as reflected in [the clerk’s] notes on her docket she keeps[.]” Judge
Head could not recall whether he announced the ruling in open court, but presumed he had done
so in light of the clerk’s docket notes.
An Iron County Sheriff’s deputy testified that no one from the MSHP, which was
investigating the case due to a conflict of interest, was present in the courtroom when the motion
was discussed.
Victim testified that she had her cellphone with her during the preliminary hearing. She
said the phone had been traded in to AT&T about three to four months after the preliminary hearing
because the screen was cracked. Victim said that she still had the SIM card from that phone,
brought it with her to court, and that she had been informed by the prosecutor’s office that it was
okay to trade in the phone.
At the conclusion of the evidence, defense counsel argued that the State acted in bad faith,
a curative instruction was an insufficient remedy, and renewed her request for dismissal. In
4
response, the prosecutor observed that three witnesses and counsel all had multiple inconsistent
recollections as to how Judge Head ruled (or if he ruled) on defense counsel’s motion. The
prosecutor indicated that it was “clear [] that something occurred that was outside the norm with
this case[,]” and that “[t]he state accepts that Judge Head has made an order. But the state was not
aware of it until 10 days ago.” The State requested the opportunity to cure by obtaining records
from Facebook and AT&T, and the records from Victim’s SIM card.
The trial court inquired whether defense counsel would “prefer to have the messages if
they can retrieve those,” or for the trial court “to give that instruction?” Defense counsel responded
that she would “prefer to have that instruction and go to trial on Monday[.]”
Following a conference in chambers with the attorneys, the trial court announced that it
would again deny the defense’s motion to dismiss. Defense counsel informed the trial court that
the parties had entered into a stipulation in lieu of an instruction, and that she would get leave to
cross examine witnesses on the issue.
On October 1, 2018, a jury trial commenced. Defense counsel told the jury in her opening
statement that it would hear that Victim and Richardson exchanged messages, some flirtatious,
and that it would hear why none of those messages were available. The stipulation, signed by
counsel for both parties, was published to the jury at the conclusion of that opening statement. 3
Victim testified that the first time she met Richardson was when she returned to work on
March 17, 2018, at Stone Crest Health Care. She had been away from work while studying for
3
The stipulation read as follows:
A motion was filed by Defense Counsel in April of 2018 asking the Court to order the State to
preserve the victim’s phone, video surveillance from the nursing home where Randy Richardson
and [Victim] worked and video of the law enforcement interview of Randy Richardson. No written
record of the Judge’s order approving said motion was made available to either party until
September 19, 2018. The Judge stated under oath that he must have announced his order verbally
in court on April 19, 2018 because the Court Clerk made an entry in her personal notes to that regard.
The State did not attempt to preserve those items until after September 19, 2018.
5
her CNA exam. Richardson was very friendly, which quickly turned into a flirtatious friendly.
Richardson asked to borrow Victim’s phone because his was low on minutes. Richardson then
told Victim that he was going to start sending her messages on Facebook Messenger. Richardson
sent messages through the secret messenger function that encrypted the messages and erased them
within sixty seconds after being sent—these were sent from multiple accounts, including his
wife’s. Victim initially responded to some of the messages, but never sent Richardson any
messages outside of work hours. Victim denied ever flirting or having a consensual “affair” with
Richardson.
Victim stated she was an avid poster to Facebook, sometimes posting up to 25 times a day.
She identified several posts she made or shared to Facebook from her phone during the March 17
through March 22 time period. Some of those texts included lines from songs and some were
selfies. These texts were admitted into evidence. Victim explained in detail the content of each
text and denied they were directed to Richardson personally.
Victim admitted to being present at the preliminary hearing where the trial court received
argument regarding the preservation of her cellphone. Victim understood that defense counsel
wanted her cellphone, but she “knew that the judge said that you [defense counsel] were not getting
it. You could subpoena records.” Victim stated she offered to “give up” her cellphone, but after
hearing the judge’s ruling, she “knew that [her] phone did not need to be turned over, the records
would be subpoenaed.” Victim testified that approximately four months later, she called the
prosecutor’s office and asked if she could trade in her cellphone because it was cracked and was
given the okay. In the course of the investigation, Victim was told by law enforcement that they
did not need her phone. 4
4
Victim delivered copies of “screen shots” from her cellphone to the prosecutor. These were not from the Facebook
Secret Messenger as those were encrypted and automatically deleted.
6
Corporal Christopher Hamlett (“Corporal Hamlett”), a criminal investigator with the
MSHP, testified that in Richardson’s interview, he claimed that he and Victim exchanged
messages on Facebook Secret Messenger and ultimately developed a relationship that included a
consensual sexual encounter. Richardson also admitted to using methamphetamine the morning
of the sexual assault. Corporal Hamlett collected Richardson’s cellphone and the passwords for
his social media accounts. A warrant was issued for Richardson’s Facebook accounts, which
showed no messages exchanged between Richardson and Victim. Officer Hamlett explained that
messages sent through the “secret or encrypted Facebook Messenger” are deleted and are not easily
retrieved by law enforcement and are usually not provided by Facebook. Corporal Hamlett
indicated that he was unaware of any court order to preserve Victim’s cellphone as he was not
present at any hearing. He testified that if he had known, Victim’s cellphone would have been
preserved. Corporal Hamlett indicated he believed that records from Facebook would be the best
indicator of whether any messages were exchanged between Victim and Richardson.
Richardson did not testify, but presented testimony from co-workers that Victim had
pursued a relationship with Richardson, and that Victim reported the rape after Richardson had
complained to his employer that Victim was harassing him at work.
Defense counsel argued in closing argument that Victim had consensual sex with
Richardson, and that Victim used Facebook Secret Messenger to talk to Richardson so her fiancé
would not find out. Defense counsel argued that the State was trying to hide evidence that would
exonerate Richardson. 5
5
Specifically, defense counsel made the following argument:
That’s why you need secret messages. And I’d love to show you those messages today but I can’t.
I don’t have them and there’s a reason I don’t have them. The State did not want me to have them.
He did not want [Richardson] to have them for his defense. They didn’t want any independent
confirmation of the affair between [Victim] and [Richardson]. Look at this stipulation you were
given yesterday. I filed a motion with the court and I said I want [Victim]’s phone. I want it
preserved and I want to get those messages off of it. A judge ordered that. A judge ordered her
7
The jury found Richardson guilty on the sole count of rape in the first degree. 6 The trial
court sentenced Richardson, as a prior and persistent offender, to twenty-five years in the
Department of Corrections. This appeal followed.
In his sole point relied on, Richardson argues:
The trial court erred in denying Mr. Richardson’s motion to dismiss because
. . . after the trial court ordered the state to preserve [Victim]’s cell phone because
it contained potentially useful exculpatory or impeaching evidence, the state
knowingly allowed for the destruction of the cell phone, and the knowing
destruction of evidence after a trial court orders a state to preserve it constitutes bad
faith.
Standard of Review
“A trial court’s ruling on a motion to dismiss a charging instrument is reviewed for an
abuse of discretion.” State v. Erby, 497 S.W.3d 291, 295 (Mo.App. S.D. 2016). “An abuse of
discretion occurs when the trial court’s action is so unreasonable and arbitrary that it shocks the
sense of justice and indicates a lack of careful consideration.” State v. Russell, 598 S.W.3d 133,
136 (Mo. banc 2020) (internal quotation and citation omitted).
The standard governing due process claims for access to evidence depends on the
nature of the evidence the State has destroyed.
When the State suppresses or fails to disclose material exculpatory
evidence, the good or bad faith of the prosecution is irrelevant: a
due process violation occurs whenever such evidence is withheld.
phone preserved so we could look at it and you could see those messages. She testified I had the
phone in court. I had it in court. Did it get preserved? No you didn’t get to see it. She got rid of
it. He did, that’s not helpful to him. [Richardson]’s phone it would have had messages on it, it
would have had those secret Facebook messages. [Richardson] even says in his audio I deleted that
app, I didn’t want to talk to her anymore but if you reload it all those messages will be on there
backed up by Google Play. Highway Patrol in the audio, listen to them, [Richardson] you know
there’s things on that phone even if they are deleted we can get? Oh yes they can. Did they? No
they did not. They never dumped his phone, they never opened it, they never looked at it. They
have it. They’ve had it since March 22nd and there’s absolutely nothing that I’ve been able to
present to you off of that phone because the State has it and the State doesn’t want to get anything
off of it. I think [Corporal] Hamlett said it the best, we didn’t talk to any other witnesses because
we didn’t want to muddy the waters. Sure they didn’t. They have a deputy whose fiancé’s saying
that she’s been raped. . . . They didn’t want to muddy the waters by giving you the evidence.
6
A lesser-included instruction was given for the crime of rape in the second degree.
8
In Youngblood, by contrast, we recognized that the Due Process
Clause ‘requires a different result when we deal with the failure of
the State to preserve evidentiary material of which no more can be
said than that it could have been subjected to tests, the results of
which might have exonerated the defendant.’ [Youngblood, 488
U.S. at 57, 109 S.Ct. at 337]. We concluded that the failure to
preserve this ‘potentially useful evidence’ does not violate due
process ‘unless a criminal defendant can show bad faith on the part
of the police.’ Id., at 58 109 S.Ct. 333 (emphasis added).
Illinois v. Fisher, 540 U.S. 544, 547–48 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004)
(other citations omitted).
For evidence to qualify as ‘materially exculpatory,’ ‘the evidence must both
possess an exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.’ California v. Trombetta, 467 U.S.
479, 489 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). If the evidence fails to meet this
two-pronged test, then the evidence is, at most, only ‘potentially useful,’ and a
showing of bad faith is necessary to substantiate a due process claim based on the
State’s destruction of the evidence. Fisher, 540 U.S. at 548, 124 S.Ct. 1200.
[State v.] Cox, 328 S.W.3d [358, 362 (Mo.App. W.D. 2010)]. Our Supreme Court
has stated: ‘absent a showing of bad faith on the part of the police or prosecutor,
the failure to preserve even potentially useful evidence does not constitute a denial
of due process.’ State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000). Bad
faith means the evidence was destroyed ‘for the purpose of depriving the defendant
of exculpatory evidence.’ Cox, 328 S.W.3d at 364–65 (internal quotations and
citations omitted). As the proponent of the motion to dismiss, Defendant had the
burden to show the destroyed evidence was materially exculpatory or potentially
useful and, if merely potentially useful, destroyed in bad faith. See generally [State
v.] Berwald, 186 S.W.3d [349, 366–67 (Mo.App. W.D. 2005)] (placing burden of
proof on the defendant); State v. Ise, 460 S.W.3d 448, 457–58 (Mo.App.W.D.2015)
(same).
Erby, 497 S.W.3d at 295–96.
Analysis
Richardson claims that the trial court abused its discretion in denying his motion to dismiss
pursuant to the State’s alleged bad-faith destruction of Victim’s cellphone.
In the record before us, Richardson fails to demonstrate abuse of discretion by the trial
court based on the particular facts and circumstances of this case. The trial court heard numerous
9
and extensive arguments on this issue over the course of several hearings, at which multiple
witnesses were called. Moreover, when the trial court asked defense counsel whether she would
accept the State’s offer to cure (i.e., whereby they would obtain and deliver records from Facebook,
AT&T, and Victim’s SIM card), or whether defense counsel would rather utilize the instruction or
the stipulation and be ready to proceed to trial, she chose the latter option. The trial court’s remedy
demonstrates its weighing of the particular and unique factors at play in this case: (1) a joint
stipulation, signed by counsel for both parties, was published to the jury at the end of opening
statements and informed them of the relevant circumstances; and (2) the trial court gave defense
counsel wide latitude (forcefully exercised by defense counsel) in cross examination, and in
closing arguments, for purposes of suggesting the negative available inferences from the State’s
failure to preserve Victim’s cellphone.
Based on the particular facts and circumstances in this case, Richardson fails to
demonstrate that the trial court abused its discretion in denying his motion to dismiss the charge
against him. See Erby, 497 S.W.3d at 295. Richardson’s point is accordingly denied.
The judgment of the trial court is affirmed.
WILLIAM W. FRANCIS, JR., J. – OPINION AUTHOR
GARY W. LYNCH, P.J. – CONCURS
NANCY STEFFEN RAHMEYER, J. – CONCURS
10
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730 F.2d 1289
CALIFORNIA TRIBAL CHAIRMAN'S ASSOCIATION, Petitioner,v.UNITED STATES DEPARTMENT OF LABOR, Respondent.
No. 82-7707.
United States Court of Appeals,Ninth Circuit.
Submitted Jan. 9, 1984.Decided April 11, 1984.
David W. McMurchie, Files, McMurchie, Foley, Brandenburger & Weill, Sacramento, Cal., for petitioner.
Francis X. Lilly, Dep. Sol., William H. DuRoss, III, Assoc. Sol., Harry L. Sheinfeld, Jane C. Snell, U.S. Dept. of Labor, Washington, D.C., for respondent.
Petition for Review of an Order of the Secretary of Labor.
Before GOODWIN, PREGERSON and NELSON, Circuit Judges.
GOODWIN, Circuit Judge.
1
The California Tribal Chairman's Association (CTCA) petitions this court for review of an administrative determination that it misspent some $358,598 in CETA grants between 1974 and 1977 and must repay that sum to the government.
2
The Comprehensive Employment and Training Act of 1973 (CETA), Pub.L. No. 93-203, 87 Stat. 839 (1973) (repealed 1978), established decentralized employment and training programs. A Department of Labor (DOL) grant officer determined that CTCA had misspent $358,598 in CETA grants between December 1, 1974, and December 31, 1977. On June 16, 1982, an administrative law judge found that the grant officer's determination was supported by substantial evidence and held on three independent grounds that the DOL does have authority to recover the money from non-CETA funds. Those grounds are: (1) implied authority from the 1973 Act; (2) retroactive application of the 1978 CETA amendments (Pub.L. No. 95-524, Sec. 106(d)(1), 92 Stat. 1909, 1927 (1978) (repealed 1982)); and (3) a common law right to recover misspent funds. CTCA does not challenge the dollar amount of its alleged liability, but asserts that it cannot be required to repay the money from its general funds.1
Jurisdiction--timely filing
3
DOL asserts that CTCA's petition is untimely because the administrative law judge's decision became the Secretary's final action thirty days after the administrative law judge issued it. If so, the petition for review was filed after expiration of the sixty day period as then allowed by Pub.L. No. 95-524, Sec. 2, 92 Stat. 1929 (1978) (repealed 1982). However, CTCA filed exceptions with DOL on July 15, 1982, within the thirty day period allowed by 29 C.F.R. Sec. 97.198 and 29 C.F.R. Sec. 98.48. The final action was the Secretary's response to CTCA's exceptions on September 28, 1982. Cf. Outland v. CAB, 284 F.2d 224, 227 (D.C.Cir.1960), and Tallman v. Udall, 324 F.2d 411, 416 (D.C.Cir.1963).2 The petition filed on November 24, 1982, was therefore timely.
Authority under 1973 Act
4
DOL argues that the 1973 Act granted it authority to require recipients to repay misspent CETA funds. Section 602(b) of the 1973 Act says:
5
(b) The Secretary may ... make such payments in installments and in advance or by way of reimbursement, ... as ... necessary to carry out ... this Act, ... including necessary adjustments in payments on account of overpayments or underpayments. The Secretary may also withhold funds otherwise payable under this Act, but only in order to recover any amounts expended in the current or immediately prior fiscal year in violation of any provision of this Act or any term or condition of assistance under this Act.
6
Pub.L. No. 93-203, Sec. 602(b), 87 Stat. 839, 878 (1973) (repealed 1978).
7
Interpreting similar provisions of the Elementary and Secondary Education Act of 1965 (ESEA), Pub.L. No. 89-10, Sec. 207(a)(1), 79 Stat. 27, 32 (1965), and of the General Education Provisions Act (GEPA), Pub.L. No. 91-230, Sec. 415, 84 Stat. 164 (1970), the Supreme Court held they plainly imposed a liability on states for misused funds granted under ESEA. Bell v. New Jersey, --- U.S. ----, 103 S.Ct. 2187, 2197, 76 L.Ed.2d 313 (1983).
8
Subsequent to Bell, the Third and Fourth Circuits construed Sec. 602(b) of CETA as authorizing the recovery challenged in this case. Atlantic County v. Department of Labor, 715 F.2d 834 (3d Cir.1983); North Carolina Commission of Indian Affairs v. Department of Labor, 725 F.2d 238 (4th Cir.1984). Bell was found persuasive because "[t]he language, legislative history, and administrative interpretation of the 1973 CETA statute closely parallel" that of ESEA. Atlantic County, 715 F.2d at 835; see North Carolina, 725 F.2d at 240-241.
9
We follow closely the reasoning of the Third and Fourth Circuits. Like the provisions construed by the Supreme Court in Bell, 103 S.Ct. at 2193, we believe the plain language of Sec. 602(b) recognizes the government's right to recover misused funds. The last sentence of Sec. 602(b) which states that the Secretary "may also withhold funds" does not limit DOL's right to recover misspent funds; remedies other than withholding are not precluded. The ESEA also provided for withholding funds from a state that failed to comply with its provisions. Pub.L. No. 89-10, Sec. 210, 79 Stat. 27, 36 (1965). Given these analogous statutory provisions, we find no basis for restricting the Secretary of Labor's right to recover misspent funds more than that of the Commissioner of Education.
10
The 1978 amendments to CETA, which expressly provided for DOL's right to recover misspent funds, merely clarified DOL's existing authority. The Bell Court, facing the same issue in the context of similar amendments to ESEA, found Congressional debate indicating that Congress thought recipients were already liable for misused funds to be persuasive. 103 S.Ct. at 2194. The debate on the 1978 CETA amendments likewise indicates that Congress assumed the existence of a right of recovery and approved DOL's pre-1978 practice of recovering funds. See 124 Cong.Rec. 25168, 25221, 27789, 31021, 31026 (1978). DOL has had a long standing practice of recovering funds misspent under federal employment and training programs. See Atlantic County, 715 F.2d at 836, North Carolina, 725 F.2d at 241-242.
11
Finally, CTCA argues that as a matter of contractual justice, it is unfair to grant the government collection powers beyond those available when CTCA determined to accept the grant money. This action, however, concerns only the remedies available against a noncomplying recipient; it does not involve imposition of any new substantive obligations upon a recipient. Consequently, Pennhurst State School v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), upon which CTCA relies, is inapplicable because that case involved the imposition of a new and unexpected condition of compliance. See Bell, 103 S.Ct. at 2197 n. 17.
12
Because we uphold the right of DOL to recover under the 1973 CETA Act, we need not decide whether recovery would also be authorized by retroactive application of the 1978 amendments or by common law.3
13
Affirmed.
1
In Quechan Indian Tribe v. U.S. Dept. of Labor, 723 F.2d 733 (9th Cir.1984), we held that a tribe charged with misapplication of CETA funds was entitled to reconsideration of certain equitable defenses at the Secretarial level. We did not, in that case, reach the question of the Secretary's authority to recover the money from the grantee's general funds because that question had not been preserved on appeal
2
Consolidated Flower Shipments, Inc. v. CAB, 205 F.2d 449 (9th Cir.1953), does not contradict our present determination because here the pertinent regulations read together clearly indicate that there was no final action until action was taken on CTCA's exceptions
3
DOL has not yet levied on any specific CTCA funds. The parties do not question, and we do not consider, whether CTCA funds are protected from DOL collection efforts through spendthrift trust or other doctrines protecting Indian funds
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466 S.W.2d 478 (1971)
Maybell ROOKS, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5543.
Supreme Court of Arkansas.
April 26, 1971.
*479 Bon McCourtney & Associates, by Richard Jarboe, Jonesboro, for appellant.
Joe Purcell, Atty. Gen., Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.
HOLT, Justice.
Appellant was charged by information with first degree murder for the fatal shooting of her husband. A jury found her guilty of murder in the second degree and imposed a sentence of twenty-one years in the State Penitentiary. This appeal is taken from a judgment on that verdict. Appellant first contends for reversal that an improper procedure was permitted in impeaching her testimony.
Testifying in her own behalf at trial, appellant claimed self-defense. She related to the jury, and adduced other evidence, that her husband, the deceased, was an intemperate drinker, that he had on several occasions threatened to take her life, and that, at least twice in the past, he had intimidated her with a knife. Shortly before the shooting, according to appellant, an altercation erupted between her and the deceased in their backyard where he was working on a car. There was evidence that he was intoxicated at this time. The argument became violent; and, as she fled the scene, she was struck in the arm by a flying object (a wrench) thrown at her from the yard by the deceased. Although the object hit her with little force and only slightly bruised her, appellant claimed that the incident, coupled with her husband's immediate further threat as she entered their house: "I'm going to gather up a bunch of tools and I'm going to kill you," caused her to panic and to momentarily pass out. When she came to, the appellant, according to her testimony, at once obtained a shotgun from inside the house, returned to the yard and shot her husband as he was advancing upon her.
On cross- and recross-examination the prosecuting attorney, over defense objections, sought to impeach appellant by reference to a statement which she had made to the police while in custody. On recross-examination, for example, the prosecuting attorney asked:
* * * When you told your story that night, you said that your husband was running away from you when you shot him at that time, didn't you?
Counsel for appellant objected to this reference to a prior statement because it had not previously been admitted into evidence. The objection, however, was overruled and appellant thereafter denied making this statement. Later, in an attempt to further impeach appellant's story and thereby discredit her plea of self-defense, the State adduced rebuttal testimony from an investigating officer that appellant had made an in-custody statement that she shot her husband while he was "walking or running away from her." Objection was again registered against reference to that statement on the grounds that it was in the nature of an in-custody admission and had not been judicially determined, in the proper manner, to have been voluntarily made. However, the State argued, in effect, that inasmuch as the prior inconsistent statement was being offered simply for the limited purpose of impeaching appellant's testimony and not as an admission, its consideration at trial was neither contingent upon a judicial predetermination of voluntariness nor subject to any exclusionary rules. Ultimately, the trial court overruled appellant's objection and denied her subsequent motion to strike the officer's testimony.
Appellant now asserts that the trial court erred in permitting the State to impeach her in-court testimony by the use of *480 an in-custody statement without first having determined its voluntariness. Appellant contends in her brief that the language in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) "controls the disposition of the case at bar. Many state and federal cases on this issue point to the clearness of the Supreme Court's discussion about impeachment to reach a result favorable to appellant. [citing cases] Likewise, appellant submits that the language quoted from `Miranda' is so clear that it is not susceptible to argument. What could be clearer than what the Court has said about impeachment? It said that statements used to impeach must comply with its guidelines. Therefore, since the statement in the case at bar was not shown to be incompliance, the verdict must be set aside." However, after appellant's brief was filed, and following the submission of this case, the United States Supreme Court specifically held contrary to appellant's contention. In doing so the Court acknowledged that Miranda "can indeed be read as indicating a bar to use of an uncounseled statement for any purpose." The Court, in Harris v. State of New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), held that, even though a defendant's statement is inadmissible against him in the State's case in chief because of the lack of procedural safeguards which Miranda requires, the statement, however, can be used for purposes of impeachment to attack and test the credibility of the testimony of a defendant-witness about prior inconsistent incustody statements where the trustworthiness of the evidence satisfies legal standards. Therefore, in the case at bar, we hold that it was permissible for the State to test the credibility of appellant's trial testimony by cross-examination and by the rebuttal testimony of the investigating officer with respect to her allegedly voluntary and contradictory statement. In Harris the court said: "Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the truth-testing devices of the adversary process. * * * The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances."
Appellant also cites to us Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Ark.Stat.Ann. § 43-2105 (Supp.1969) in support of her assertion that a Denno hearing was never held to determine the voluntariness of the contradictory statement. It must be remembered that this asserted contradictory statement was not offered in evidence by the State in presenting its case in chief. The appellant insists that from the evidence, the allegedly volunteered statement by appellant, before interrogation, was made when in custody and in a police dominated atmosphere. In denying that she made the statement, she testified that she was nervous and upset and could not remember making the statement. In Harris there was no contention that the contradictory statement was involuntary. However, the court also noted that the voluntariness of a confession is irrelevant when the defendant becomes a witness, and further stated: "We reject such an extravagant extension of the Constitution."
In the circumstances, it is our view that the latest expression of the United States Supreme Court in Harris is controlling in the case at bar and renders Miranda, which appellant cites as dispositive of this case, inapplicable. In doing so, it appears to restore the validity of our previous decisions, such as Decker v. State, 234 Ark. 518, 353 S.W.2d 168, 98 A.L.R.2d 1 (1962). There the contention was made that cross-examination of the defendant about inconsistent statements was impermissible since they were in the category of a confession and the proper foundation had not been established for the admission of a confession. We said: "Of course, a defendant in a criminal case who elects to testify is subject to impeachment like any other witness, *481 and the purpose of the questioning was to establish that Decker had earlier made contradictory statements as to the circumstances of the killing."
We turn now to appellant's second and final point for reversal. At the close of all the evidence, appellant moved that the prosecuting attorney be required to fully disclose in his opening argument the grounds upon which he would rely for a conviction. We agree with appellant that the trial court should have granted the motion by admonishing the State to comply with the request. Ark.Stat.Ann. § 43-2132 (Repl. 1964) provides that the party having the burden of proof shall also be entitled to give the opening and conclusion of final argument. However, this statute also expressly indicates that the party having the burden shall not enjoy the privilege of concluding the argument without first, upon demand of the adverse party, making a full statement of the grounds upon which he claims a verdict.
An examination of the record demonstrates, however, that the refusal of the appellant's motion amounted to harmless error since the prosecuting attorney did in fact make an adequate preliminary disclosure of the grounds upon which he would rely for a conviction. Appellant complains that the prosecution, in the concluding portion of final argument, commented for the first time concerning her failure to produce any evidence of the deceased's reputation for violence and also for the first time asserted that appellant's son, who did not testify, in all probability planted a wrench under the deceased's body and put the shotgun in the house. However, we think the State's concluding argument contained only proper rebuttal material in light of the matters discoursed upon in appellant's preceding closing argument.
Affirmed.
FOGLEMAN, J., not participating.
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232 N.J. Super. 432 (1989)
557 A.2d 675
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL WILLIAMS, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted March 21, 1989.
Decided April 21, 1989.
*433 Before Judges MICHELS and MUIR, Jr.
Alfred A. Slocum, Public Defender, attorney for appellant (Ronald M. Gutwirth, Designated Counsel, of counsel and on the brief).
Peter N. Perretti, Jr., Attorney General, attorney for respondent (Janet Flanagan, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by MUIR, Jr., J.A.D.
This criminal case had its genesis when D.D., an infant, and Dennis Sutton stepped from a car driven by defendant and, at the point of a simulated handgun, took a large portable radio from a young man. Defendant drove D.D. and Sutton from the scene. During his jury trial on first degree robbery and terroristic threat charges, defendant and Sutton testified defendant did not know the two co-defendants intended to rob the victim when defendant stopped the car to let them out. Based on that purported lack of knowledge, and defendant's testimony he drove his co-defendants from the scene out of fear, defense counsel requested the trial judge charge the crime of hindering apprehension as a lesser included offense of robbery, or as an alternative to robbery. The trial judge denied the request. *434 The trial judge's instructions to the jury did include accomplice liability. The jury convicted defendant of both charges. The trial judge sentenced defendant to two concurrent indeterminate terms with the term on the robbery conviction not to exceed ten years and the term on the other conviction not to exceed three years. The trial judge also imposed an appropriate Violent Crimes Compensation Board penalty.
Defendant appeals, contending:
POINT I THE TRIAL COURT ERRONEOUSLY FAILED TO CHARGE THE JURY THAT DEFENDANT'S CONDUCT MAY HAVE CONSTITUTED HINDERING APPREHENSION AND NOT FIRST DEGREE ROBBERY AND TERRORISTIC THREATS AND THAT SUCH A FINDING REQUIRED THE DEFENDANT'S ACQUITTAL EVEN THOUGH DEFENSE COUNSEL [sic] (PARTIALLY RAISED THE ISSUE BELOW).
POINT II THE TRIAL COURT ALTERNATIVELY ERRED IN REFUSING DEFENSE COUNSEL'S REQUEST TO CHARGE THE JURY THAT DEFENDANT'S CONDUCT MAY HAVE CONSTITUTED THE LESSER INCLUDED OFFENSE OF HINDERING APPREHENSION RATHER THAN FIRST DEGREE ROBBERY AND TERRORISTIC THREATS.
POINT III THE TRIAL COURT ERRONEOUSLY REFUSED TO CHARGE THE JURY THAT DEFENDANT'S CONVICTION AS AN ACCOMPLICE REQUIRED THE STATE TO PROVE DEFENDANT'S GUILT AS AN ACCOMPLICE BEYOND A REASONABLE DOUBT.
POINT IV THE TRIAL COURT'S REFUSAL TO PERMIT CROSS EXAMINATION OF DENNIS SUTTON CONCERNING THE DETAILS OF HIS PLEA BARGAIN WITH THE STATE VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM AND REQUIRES THE REVERSAL OF HIS CONVICTION.
POINT V THE TRIAL COURT'S ERRONEOUS REFUSAL TO PERMIT THE DEFENDANT TO PRESENT TESTIMONY CONCERNING HIS STATE OF MIND AT THE APPROXIMATE TIME OF THE ROBBERY PREJUDICED THE DEFENDANT AND VIOLATED HIS RIGHT TO DUE PROCESS OF LAW.
We affirm. In doing so, we conclude that only defendant's first two contentions require comment, since the remainder are clearly without merit. See R. 2:11-3(e)(2).
Despite defendant's contentions to the contrary, the only issue here is whether the crime of hindering apprehension is a lesser included offense of robbery. This is so because the indictment setting forth the charges did not list hindering apprehension as a separate offense. In that absence, the trial *435 judge had no authority to submit the issue of that crime to the jury unless it constituted a lesser included offense of robbery. When a grand jury does not indict a defendant for a crime, and no lesser included crime is implicated, a trial judge cannot supplant the grand jury function by charging an unindicted crime.
In the context of the Code's definition of robbery, the issue is resolved by comparing the liability imposed for behavior designed to assist an actor in avoiding justice, hindering apprehension (N.J.S.A. 2C:29-3a(1)), with behavior designed to assist in the actual commission of the offense, accomplice liability (N.J.S.A. 2C:2-6).
The Code makes a person guilty of robbery
if, in the course of committing a theft, he:
* * * * * * * *
(2) threatens another with or purposely puts him in fear of immediate bodily injury;
* * * * * * * *
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs .. . in immediate flight after commission. [N.J.S.A. 2C:15-1a].
Thus, the crime of robbery is ongoing in nature and continues during the flight immediately after the theft.
Under N.J.S.A. 2C:2-6, the Code reposes criminal accountability on a person who is an accomplice of another person in commission of an offense. Accomplice liability arises if
(1) With the purpose of ... facilitating the commission of the offense; he
* * * * * * * *
(b) Aids ... such other person in committing it. [N.J.S.A. 2C:2-6].
On the other hand, a person is criminally liable under N.J.S.A. 2C:29-3, as applicable here, if
... with the purpose to hinder the apprehension, prosecution, conviction or punishment of another for an offense he
* * * * * * * *
*436 (2) provides or aids in providing ... transportation or other means of effecting escape.
Intended to break from the common law notion that a person who helps an offender avoid justice becomes an accomplice to the original crime, the latter offense rests on a theory of obstructing justice. See II Final Report of the New Jersey Criminal Law Revision Commission, Commentary (1977) at 283. Thus, it is viably distinct from accomplice accountability which imposes criminal liability for aiding in the commission of the original crime.
Defendant's contention, that he could be liable for hindering apprehension because he was involved only in the after-the-fact facilitating of the escape, ignores that under the Code a robbery is not completed by the taking of property by force, but continues into the immediate flight after such an act. By contrast, the Code offense of hindering the apprehension, like the common law crime of accessory after the fact, assumes a completed crime. See N.J.S.A. 2C:39-3a; State v. Sullivan, 77 N.J. Super. 81, 90 (App.Div. 1962); 1 Wharton's Criminal Law, (14 ed. 1978), § 33 at 171. As the District of Columbia Circuit Court of Appeals stated:
The gist of being an accessory after the fact lies essentially in obstructing justice by rendering assistance to hinder or prevent the arrest of the offender after he has committed the crime.... The very definition of the crime also requires that the felony not be in progress when the assistance is rendered because then he who renders assistance would aid in the commission of the offense and be guilty as a principal. [United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir.1972)].
To this extent, the Code and common law offenses are alike. See also Williams v. United States, 478 A.2d 1101, 1105 (D.C.App. 1984) (inappropriate to convict driver of getaway vehicle as accessory after the fact for armed robbery in light of "the continuing nature of the crimes of robbery during the asportation of the goods").
Here, defendant's conduct occurred "in the course of a theft" because the robbery was ongoing and in progress. The record indicates, and defendant does not dispute, that Sutton and D.D., *437 after theft of the radio induced by threat of fear or immediate bodily injury, were driven from the crime scene by defendant. The police arrested all three within minutes of the theft. Both the stolen radio and the simulated handgun were recovered in the vehicle. Consequently, we conclude the judge correctly denied the request to charge hindering apprehension as a lesser included offense. Moreover, there was no rational basis in the evidence for submitting "hindering apprehension" to the jury for its consideration. See N.J.S.A. 2C:1-8(e); State v. Sloane, 111 N.J. 293, 299-301 (1988); State v. Crisantos (Arriagas), 102 N.J. 265, 278 (1986).
Affirmed.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA RIGHT TO LIFE COMMITTEE,
Plaintiff-Appellant,
No. 04-35599
v.
D.C. No.
BROOKE MILES; ANDREA JACOBSON; CV-02-00274-A-
LARRY WOOD; MARK HANDLEY; RRB
JOHN DAPCEVICH; SHEILA
OPINION
GALLAGHAER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
July 12, 2005—Anchorage, Alaska
Filed March 22, 2006
Before: Alfred T. Goodwin, Melvin Brunetti, and William
A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
2999
ALASKA RIGHT TO LIFE v. MILES 3003
COUNSEL
Kenneth P. Jacobus, Anchorage, Alaska, Richard E. Coleson
and James Bopp, Jr., Bopp Coleson & Bostrom, Terre Haute,
Indiana, for the plaintiff-appellant.
Michael G. Mitchell, Office of the Alaska Attorney General,
Anchorage, Alaska, for the defendants-appellees.
OPINION
W. FLETCHER, Circuit Judge:
Alaska Right to Life Committee (“AKRTL”) challenges
certain aspects of Alaska’s campaign finance law, Alaska
Stat. § 15.13.030 et seq. Prior to the 2002 Alaska gubernato-
rial election, AKRTL was informed by the Alaska Public
Offices Commission that if it wished to engage in “election-
eering communications” as a “nongroup entity,” it would
have to comply with registration, reporting, notification, and
disclosure-of-identity requirements. AKRTL brought suit in
federal district court based on the First Amendment, seeking
declaratory and injunctive relief against these requirements.
On cross-motions for summary judgment, the district court
upheld the Alaska law. We affirm.
I. Factual and Procedural Background
AKRTL is a nonprofit corporation headquartered in
Anchorage, Alaska. It describes itself as “a membership-
3004 ALASKA RIGHT TO LIFE v. MILES
based association that seeks to promote its pro-life perspective
to the Alaska public.” It describes its major purpose as pro-
moting “a pro-life consensus in Alaska’s public through the
presentation of its pro life message.” It seeks to accomplish
its goals through various forms of communication to the pub-
lic, including a newsletter, telemarketing, and the Internet.
AKRTL states that it is not affiliated with any political party,
political candidate, or campaign committee.
AKRTL is affiliated with the Alaska Right to Life Political
Action Committee (“AKRTL-PAC”) and Alaska Right to
Life, Inc. (“AKRTL Inc.”). AKRTL-PAC is an advocacy
organization, and AKRTL Inc. is a tax-exempt educational
organization. The three entities share the same director and
the same board of directors. The degree of financial separa-
tion among the three entities is unclear from the record.
AKRTL-PAC is registered as a “group” with the Alaska Pub-
lic Offices Commission (“APOC”), which interprets and
enforces Alaska’s campaign finance disclosure law. AKRTL
is not registered.
Fundraising by AKRTL is primarily accomplished through
telemarketing campaigns. In 2002, AKRTL developed a pro-
posed telemarketing campaign costing more than $500 (the
monetary threshold under Alaska law) that would mention
candidates’ names; discuss political issues that were relevant
to the then-upcoming gubernatorial election on November 5,
2002; and state the candidates’ position on those issues. Spe-
cific language that AKRTL planned to use in the campaign
was as follows:
Alaska Right to Life is always on the forefront of
implementing pro-life legislation within our state,
such as banning partial birth abortion, establishing
parental consent and stopping state funding. We
believe these are important issues affecting all Alas-
kans. Frank Murkowski supports Alaska Right to
Life’s pro-life vision by supporting a ban on partial
ALASKA RIGHT TO LIFE v. MILES 3005
birth abortion, establishing parental consent and
stopping state funding. But Fran Ulmer stands in
opposition to these measures. Please be sure to vote.
Frank Murkowski and Fran Ulmer were, respectively, the
Republican and Democratic candidates for governor in 2002.
In late September 2002, the Indiana-based lawyer now rep-
resenting AKRTL made general telephone inquiries to APOC
concerning Alaska’s campaign finance law without revealing
the identity of his client. The same lawyer made two later
inquiries, again without identifying his client. Finally, on
November 1, 2002, local Alaska counsel provided a draft
complaint, signed by AKRTL Inc., to the Alaska Attorney
General’s office. The local counsel indicated that he planned
to file the complaint the next day. The draft complaint asked
for a temporary restraining order allowing AKRTL Inc. to
engage in a telemarketing campaign prior to the November 5,
2002 election using the above-quoted language.
APOC responded by telephone and letter. The letter, dated
November 1, noted that “AkRTL” (by which it appears to
have meant AKRTL-PAC) had already registered under the
Alaska statute. The letter also noted that the fundraising was
intended to benefit “the committee” (by which it appears to
have meant AKRTL). APOC approved the proposed commu-
nication on the assumption that AKRTL-PAC, which had pre-
viously registered with APOC as a “group,” would be the
entity making the telephone calls. APOC specified that “be-
cause the script includes an electioneering communication,
the costs must be paid for with group-reported funds.”
AKRTL Inc. did not file its proposed complaint on Novem-
ber 2. Instead, on November 4, AKRTL — not AKRTL Inc.
or AKRTL-PAC — filed suit in federal district court, naming
as defendants Brook Miles, Andrea Jacobson, Larry Wood,
Mark Handley, John Dapcevich, and Sheila Gallagher in their
official capacities as director and members of APOC (collec-
3006 ALASKA RIGHT TO LIFE v. MILES
tively “APOC”). As noted above, AKRTL (unlike AKRTL-
PAC) has not registered under Alaska’s campaign finance
law.
AKRTL challenged five provisions of the Alaska law: (1)
the definition of “electioneering communication”; (2) the
requirement that it register before making campaign finance
expenditures; (3) the requirement that it make reports; (4) the
requirement that it notify contributors and potential contribu-
tors that their contributions may be used to influence an elec-
tion; and (5) the requirement that it disclose in its
communications who is paying for the communication.
AKRTL contended that these provisions violate the First
Amendment both facially and as applied.
The district court granted summary judgment to APOC.
AKRTL appealed everything except the district court’s
approval of the notification requirement for contributors
(issue (4), above). We have jurisdiction under 28 U.S.C.
§ 1331 and 28 U.S.C. § 1291. We affirm.
II. Statutory Background
Alaska has a long history of regulating political influence
and campaign finance, beginning in 1913 when the Alaska
legislature passed a statute requiring lobbyists to register.
1913 Alaska Sess. Law ch. 43 § 1 (1913). In 1974, Alaska
adopted a law limiting individual contributions to candidates,
limiting the amount of money candidates could spend, and
requiring that written receipts for all expenditures promoting
candidates that exceeded $100 be filed with the state election
commission. 1974 Alaska Sess. Law ch. 76 § 1 (1974).
A 1990 report commissioned by the Alaska State Senate
revealed that public confidence and trust in the integrity of the
legislature was “ ‘disturbingly low’ ” and that this was attrib-
utable in part to “ ‘calculated evasions of the purpose and
spirit of campaign laws.’ ” Alaska v. Alaska Civil Liberties
ALASKA RIGHT TO LIFE v. MILES 3007
Union (“AKCLU”), 978 P.2d 597, 602 (Alaska 1999) (quoting
the report). A former member of the State House of Represen-
tatives stated that “[t]he constant refrain I heard from citizens
. . . was that the Legislature was owned by special interests
[and] that nothing was going to change the corruption caused
by big money.” Id. (internal quotation marks omitted).
In 1996, Alaska passed a comprehensive campaign reform
statute, commonly referred to as SB 191. SB 191 contained a
finding that “the purpose of this Act [is] to substantially revise
Alaska’s election campaign finance laws in order to restore
the public’s trust in the electoral process and to foster good
government.” Alaska Sess. Law ch. 48 § 1. Under SB 191,
independent expenditures by an entity supporting or opposing
a candidate for state office were banned unless the entity qual-
ified as a “group.” AKCLU, 978 P.2d at 607-08. A “group”
was defined as “any combination of two or more individuals
acting jointly who organize for the principal purpose of influ-
encing the outcome of one or more elections and who take
action the major purpose of which is to influence the outcome
of an election.” Id. at 608 n.65. All entities not qualifying as
“groups” were banned from making such independent expen-
ditures.
In 1999, the Supreme Court of Alaska upheld most of SB
191 in AKCLU. The court upheld the ban on expenditures by
what it called “nongroup entities,” but only after defining that
term narrowly. Guided by the United States Supreme Court’s
decisions in Federal Election Commission v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238 (1986), and Austin v.
Michigan Chamber of Commerce, 494 U.S. 652 (1990), the
Alaska court defined “nongroup entities” as “organizations
potentially able to amass great wealth through state-created
advantages.” AKCLU, 978 P.2d at 611-12. Included in the
court’s definition of “nongroup entities” were corporations
and labor unions. 978 P.2d at 607-08. Excluded from its defi-
nition were entities that “(1) . . . cannot participate in business
activities, (2) . . . have no shareholders who have a claim on
3008 ALASKA RIGHT TO LIFE v. MILES
corporate earnings, and (3) . . . are independent from the
influence of business corporations.” The court held that “non-
group entities,” so defined, could constitutionally be banned
from making independent expenditures to support or oppose
candidates. Id. at 612. Entities excluded from the court’s defi-
nition of “nongroup entities” were not banned by the statute
from making such expenditures. Id. at 611-12.
A separate challenge to SB 191 was brought in federal dis-
trict court. The district court stayed proceedings until the
Alaska Supreme Court decided AKCLU. After that decision
became final, the district court ruled on the constitutionality
of two provisions of SB 191 that had not been addressed in
AKCLU. Jacobus v. State of Alaska, 182 F. Supp. 2d 881 (D.
Alaska 2001). The district court struck down a $5,000 per
year limitation on “soft-money” contributions by individuals
to political parties, as well as a limitation on professional ser-
vices volunteered by individuals on behalf of a candidate or
ballot proposition when the services were those for which that
individual “would ordinarily be paid a fee or wage.” Id. at
885, 890. On appeal, we upheld the statutory limitation on
“soft money” contributions, but struck down the limitation on
individual volunteer services. Jacobus v. State of Alaska, 338
F.3d 1095, 1107-22, 1122-25 (9th Cir. 2003).
Partly in response to the decisions by the Alaska Supreme
Court in AKCLU and the federal district court in Jacobus, the
Alaska legislature significantly amended Alaska’s campaign
finance law in 2001 and 2002. Preventing corruption and the
appearance of corruption, as well as providing information to
voters, were cited by various members of the State legislature
as compelling interests supporting the amendments. As Rep-
resentative Jeanette James stated during debates on the
amendments, the primary focus of campaign finance laws is
to inform the public, and that “wherever there is money
involved in affecting policy in the State, either by law or by
choice, the public has a right to know.”
ALASKA RIGHT TO LIFE v. MILES 3009
Among other things, the 2001 and 2002 amendments
extended various disclosure requirements to “nongroup enti-
ties.” As a result, “nongroup entities” became subject to the
same disclosure rules as “groups.”
The amendments also provided a broad definition of “elec-
tioneering communication,” thereby closing a loophole that
had allowed evasion of disclosure requirements if the use of
certain, specified words was avoided in advertisements. This
new broad definition was influenced by our description of the
“magic words requirement,” and its associated problems, in
Federal Election Commission v. Furgatch, 807 F.2d 857, 863
(9th Cir. 1987):
A test requiring the magic words “elect,” “support,”
etc., or their nearly perfect synonyms for a finding of
express advocacy would preserve the First Amend-
ment right of unfettered expression only at the
expense of eviscerating the Federal Election Cam-
paign Act. “Independent” campaign spenders work-
ing on behalf of candidates could remain just beyond
the reach of the Act by avoiding certain key words
while conveying a message that is unmistakably
directed to the election or defeat of a named candi-
date.
Finally, and somewhat confusingly, the amendments essen-
tially adopted as their definition of “nongroup entities” the
Alaska Supreme Court’s description in AKCLU of entities that
had been excluded from that court’s definition of “nongroup
entities” in SB 191. Under AKCLU, “nongroup entities” were
defined to include only organizations, such as business corpo-
rations and labor unions, that were capable of “amassing great
wealth” through state-created advantages. “Nongroup enti-
ties,” so defined, were banned by SB 191 from making inde-
pendent expenditures. Other entities — neither “groups” nor
“nongroup entities” — were permitted to make independent
expenditures under SB 191. Now, under the new amend-
3010 ALASKA RIGHT TO LIFE v. MILES
ments, those other entities were called “nongroup entities.”
Under the newly adopted Alaska Stat. § 15.13.400(13),
“nongroup entity” means a person, other than an
individual, that takes action the major purpose of
which is to influence the outcome of an election, and
that
(A) cannot participate in business activi-
ties;
(B) does not have shareholders who have
a claim on corporate earnings; and
(C) is independent from the influence of
business corporations.
A “nongroup entity” under the newly adopted amendments is
not banned from making expenditures. “Nongroup entities”
are merely required to make various forms of disclosure in
connection with their expenditures.
AKRTL’s First Amendment challenge is addressed to dis-
closures now required of “nongroup entities” that make
expenditures.
III. Mootness
[1] AKRTL’s suit is not moot simply because the 2002
election has come and gone. We have held that “election
cases often fall within the ‘capable of repetition, yet evading
review’ exception to the mootness doctrine, because the
inherently brief duration of an election is almost invariably
too short to enable full litigation on the merits.” Cal. Pro-Life
Council, Inc. v. Getman, 328 F.3d 1088, 1095 n.4 (9th Cir.
2003) (quoting Porter v. Jones, 319 F.3d 483, 490 (9th Cir.
2003)) (internal quotation marks and alterations omitted). The
provisions of Alaska law challenged by AKRTL remain in
ALASKA RIGHT TO LIFE v. MILES 3011
place, and there is sufficient likelihood that AKRTL will
again be required to comply with them that its appeal is not
moot.
IV. Standard of Review
We review the district court’s grant of summary judgment
de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). Viewing the evidence in the light most favorable to the
nonmoving party, we must determine whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. Id.
V. Discussion
On appeal to this court, AKRTL argues that it cannot be
required to make disclosures as a condition of making “ex-
penditures” for “electioneering communications” as those
terms are defined under Alaska Stat. §§ 15.13.400(3), (5) and
(6). The centerpiece of AKRTL’s First Amendment challenge
is its argument that the definition of “electioneering commu-
nications” is unconstitutionally vague and overbroad. In addi-
tion, AKRTL challenges three specific disclosure
requirements. First, it challenges the requirement that a “non-
group entity” register under Alaska Stat. § 15.13.050(a)
before it can make an “expenditure” under Alaska Stat.
§ 15.13.067. Second, it challenges the requirement that a non-
group entity report expenditures under Alaska Stat.
§§ 15.13.040(d), (e), and (j), 15.13.074(i), 15.13.082(b),
15.13.100, and 15.13.135(a). Third, it challenges the require-
ment that a nongroup entity disclose under Alaska Stat.
§§ 15.13.090 and 15.13.135(b) that it is paying for a commu-
nication.
None of the challenged provisions limits the amount of
money a nongroup entity such as AKRTL may spend. Rather,
the provisions require only that certain forms of disclosure be
made. With that in mind, we consider AKRTL’s challenges.
3012 ALASKA RIGHT TO LIFE v. MILES
A. Definition of “Electioneering Communications”
As a result of the 2001 and 2002 amendments, “nongroup
entities” are required to make disclosures in connection with
their “expenditures.” For example, a nongroup entity “making
an expenditure” must register with APOC as required by
§ 15.13.050; a nongroup entity making an expenditure is
required to make a “full report” of that expenditure under
§ 15.13.040(d); a nongroup entity is prohibited by
§ 15.13.067 from making “an expenditure in an election for
candidates for elective office” unless it has registered with
APOC; a nongroup entity may not make an expenditure
unless the source of the expenditure has been disclosed as
required by § 15.13.082(b); and a nongroup entity making an
“independent expenditure” supporting or opposing a candi-
date for election to public office is required by § 15.13.135(b)
to disclose the source of the expenditure.
An “expenditure” is defined as the transfer of anything of
value for the purpose of making “an express communication”
or “an electioneering communication.” Alaska Stat.
§ 15.13.400(6)(A) and (C). An “expenditure” does not include
the transfer of something of value for making “an issues com-
munication.” Id. at § 15.13.400(6)(C).1
1
The syntax of the statute is somewhat garbled. The text provides as fol-
lows:
(6) “expenditure”
(A) means a purchase or a transfer of money or anything
of value, or promise or agreement to purchase or transfer
money or anything of value, incurred or made for the pur-
pose of
(i) influencing the nomination or election of a candidate
or of any individual who files for nomination at a later
date and becomes a candidate;
(ii) use by a political party;
(iii) the payment by a person other than a candidate or
political party of compensation for the personal services of
ALASKA RIGHT TO LIFE v. MILES 3013
The various forms of “communication” referred to in the
section defining “expenditure” are defined as follows:
“[C]ommunication” means an announcement or
advertisement disseminated through print or broad-
cast media, including radio, television, cable, and
satellite, the Internet, or through a mass mailing,
excluding those placed by an individual or nongroup
entity and costing $500 or less and those that do not
directly or indirectly identify a candidate or proposi-
tion, as that term is defined in AS 15.13.065(c)[.]
Id. at § 15.13.400(3).
“[E]xpress communication” means a communication
that, when read as a whole and with limited refer-
ence to outside events, is susceptible of no other rea-
sonable interpretation but as an exhortation to vote
for or against a specific candidate[.]
Id. at § 15.13.400(7).
“[E]lectioneering communication” means a commu-
nication that
(A) directly or indirectly identifies a can-
didate;
another person that are rendered to a candidate or political
party; or
(iv) influencing the outcome of a ballet proposition or
question;
(B) does not include a candidate’s filing fee or the cost of
preparing reports and statements required by this chapter;
(C) includes an express communication and an election-
eering communication, but does not include an issues com-
munication[.]
Alaska Stat. § 15.13.400(6) (emphasis added).
3014 ALASKA RIGHT TO LIFE v. MILES
(B) addresses an issue of national, state,
or local political importance and attributes
a position on that issue to the candidate
identified; and
(C) occurs within the 30 days preceding a
general or municipal election[.]
Id. at § 15.13.400(5).
“[I]ssues communication” means a communication
that
(A) directly or indirectly identifies a can-
didate and
(B) addresses an issue of national, state,
or local political importance and does not
support or oppose a candidate for election
to public office[.]
Id. at § 15.13.400(12).
[2] AKRTL argues that the definition of “electioneering
communication” is unconstitutionally vague and overbroad,
both on its face and as applied. The Alaska definition of
“electioneering communication” is comparable to the defini-
tion of the same term in the federal Bipartisan Campaign
Reform Act of 2002 (“BCRA”). “Electioneering communica-
tion” is defined under BCRA as any “broadcast, cable, or sat-
ellite communication” that
(I) refers to a clearly identified candidate for Federal
office:
(II) is made within —
ALASKA RIGHT TO LIFE v. MILES 3015
(aa) 60 days before a general, special, or
runoff election for the office sought by the
candidate; or
(bb) 30 days before a primary or prefer-
ence election, or a convention or caucus of
a political party that has authority to nomi-
nate a candidate, for the office sought by
the candidate; and
(III) in the case of a communication which refers
to a candidate for an office other than President or
Vice President, is targeted to the relevant electorate.
2 U.S.C. § 434(f)(3)(A)(i). A communication is “targeted to
the relevant electorate” if it “can be received by 50,000 or
more persons” in the congressional district or state. Id. at
§ 434(f)(3)(C).
The definition of “electioneering communication” under
Alaska law is different from the federal definition of that
same term in the following respects. First, under Alaska law,
the communication must identify a candidate for office “di-
rectly or indirectly.” Under the federal law, the communica-
tion must identify a candidate “clearly.” Second, under Alaska
law, the communication must “address[ ] an issue of national,
state or local political importance,” and must “attribute[ ] a
position on that issue to the candidate.” Under federal law, the
content of the communication is not specified; however, with
the exception of communications referring to candidates for
the Presidency and the Vice-Presidency, the communication
must be “targeted to the relevant electorate.” Third, under
Alaska law, the communication must occur within 30 days of
any general or municipal election. Under federal law, the
communication must occur within 60 days of a general or
comparable election, or within 30 days of a primary or com-
parable election.
3016 ALASKA RIGHT TO LIFE v. MILES
1. Vagueness
We have little trouble concluding that the definition of
“electioneering communication” contained in § 15.13.400(15)
is not unconstitutionally vague, either facially or as applied.
In McConnell v. Federal Election Commission, 540 U.S. 93
(2003), the Supreme Court upheld the federal definition of
“electioneering communication” in BCRA against a facial
vagueness challenge. The Court did not merely uphold the
definition as constitutionally permissible; indeed, because the
definition was so obviously constitutional, the Court also did
not narrow the definition by judicial construction in order to
avoid a constitutional question. The Court wrote:
[W]e observe that [the] definition of “electioneering
communication” raises none of the vagueness con-
cerns that drove our analysis in Buckley [v. Valeo,
424 U.S. 1 (1976)]. The term “electioneering com-
munication” applies only (1) to a broadcast (2)
clearly identifying a candidate for federal office, (3)
aired within a specific time period, and (4) targeted
to an identified audience of at least 50,000 viewers
or listeners. These components are both easily under-
stood and objectively determinable. Thus, the consti-
tutional objection that persuaded the Court in
Buckley to limit FECA’s reach to express advocacy
is simply inapposite here.
540 U.S. at 194 (internal citations omitted).
From the standpoint of vagueness, there are only two possi-
bly significant differences between the federal and the Alaska
definition of “electioneering communication.” First, under the
federal definition, the candidate must be identified “clearly.”
By contrast, under the Alaska definition, the candidate must
be identified “directly or indirectly.” Second, under the fed-
eral definition, the content of the communication is not
described beyond what might be implicit in the requirement
ALASKA RIGHT TO LIFE v. MILES 3017
that the communication be “targeted to the relevant elector-
ate.” By contrast, under the Alaska definition, the communi-
cation must “address[ ] an issue of national, state, or local
political importance and attribute[ ] a position on that issue to
the candidate identified.” We take these two differences in
turn.
a. Facial Challenge to Candidate Identification
AKRTL argues that the definition of “electioneering com-
munication” is unconstitutionally vague on its face because
the candidate must be identified “directly or indirectly” rather
than “clearly,” as in the federal definition. Specifically,
AKRTL argues that the use of the word “indirectly” is consti-
tutionally fatal. We disagree.
[3] The federal and the Alaska definitions operate in the
same way. Under both definitions, if the candidate is identi-
fied by the communication, it is an “electioneering communi-
cation.” Under both definitions, it does not matter how the
identification of the candidate takes place. The federal defini-
tion specifies no method of identification. The Alaska defini-
tion specifies that the method may be direct or indirect;
however, since the words “direct and indirect” together
describe the complete universe of possible methods of identi-
fication, the Alaska statute has the actual effect of requiring
no specific method of identification, just like the federal defi-
nition.
If the Alaska definition had only used the word “directly,”
omitting the word “indirectly,” it would have left open the
possibility that a communication identifying a candidate
would have escaped regulation. As we stated in rejecting the
“magic words” approach in our opinion in Furgatch,
A proper understanding of the speaker’s message
can best be obtained by considering speech as a
whole. Comprehension often requires inferences
3018 ALASKA RIGHT TO LIFE v. MILES
from the relation of one part of speech to another.
The entirety may give a clear impression that is
never succinctly stated in a single phrase or sen-
tence.
807 F.2d at 863.
[4] The Alaska legislature chose two words — “directly”
and “indirectly” — that in combination were well suited to its
purpose of regulating campaign communications identifying
particular candidates. “Indirectly” is an easily understood
word in common English usage. In the context in which it is
used, it is neither vague nor difficult to understand. We there-
fore reject AKRTL’s facial vagueness challenge to the defini-
tion of “electioneering communication.”
b. Facial Challenge to Requirement That the
Communication “Address[ ] an Issue of National, State, or
Local Political Importance”
The Alaska definition of “electioneering communication”
requires that the communication “address an issue of national,
state, or local political importance.” AKRTL argues that this
provision of the Alaska’s definition is unconstitutionally
vague on its face. We disagree.
[5] The challenged provision restricts the scope of the defi-
nition so that it covers only certain kinds of communication.
By comparison, the only restriction in the federal definition is
that the communication be “targeted to the relevant elector-
ate.” The Supreme Court in McConnell upheld the federal
definition against a vagueness challenge, despite the failure to
describe the content of an “electioneering communication”
except for whatever description might be implicit in the
phrase “relevant electorate.” In our view, “relevant,” as used
in the federal definition, is at least as vague a term as the
phrase “addresses an issue of national, state, or local political
importance,” as used in the Alaska definition. In context, the
ALASKA RIGHT TO LIFE v. MILES 3019
requirement in the federal definition that the communication
be targeted to the “relevant electorate” pretty clearly means
that the communication must concern some issue of political
importance to that electorate. But, of course, “issue” and “po-
litical importance” are precisely the words used in the Alaska
statute. Those words are accompanied by the words “national,
state, or local,” but, if anything, those words make the provi-
sion less rather than more vague.
c. As-Applied Vagueness Challenge
[6] We also reject AKRTL’s as-applied vagueness chal-
lenge. An “electioneering communication” as defined under
Alaska law, clearly applies to AKRTL’s proposed telephone
message. That proposed message specifically identifies, by
name, the 2002 Republican and Democratic gubernatorial
candidates, Frank Murkowski and Fran Ulmer. AKRTL’s pro-
posed communication also clearly addresses an issue of “na-
tional, state, or local political importance.” Indeed, the
proposed communication itself refers to the issues of “ban-
ning partial birth abortion, establishing parental consent and
stopping state funding,” and then states, “We believe these are
important issues affecting all Alaskans.”
2. Overbreadth
We also have little trouble concluding that the definition of
“electioneering communication” is not unconstitutionally
overbroad. AKRTL argues that the definition of “electioneer-
ing communication” is not restricted to “express advocacy” or
its functional equivalent, and that “electioneering communica-
tion” under Alaska law can be interpreted to include “issue
advocacy.” AKRTL further argues that if the definition of
“electioneering communication” includes “issue advocacy,”
the definition is unconstitutionally overbroad. We disagree.
a. Facial Overbreadth
AKRTL’s argument is based on the Supreme Court’s anal-
ysis of the Federal Election Campaign Act of 1971 in Buckley
3020 ALASKA RIGHT TO LIFE v. MILES
v. Valeo, 424 U.S. 1 (1976). In Buckley, the Court construed
a provision of the Act that limited expenditures “relative to a
clearly identified candidate” to $1,000 per year. 18 U.S.C.
§ 608(e)(1) (1970 ed., Supp. IV). Influenced by the First
Amendment, the Court construed that provision to apply only
to “expenditures for communications that in express terms
advocate the election or defeat of a clearly identified candi-
date for federal office.” 424 U.S. at 44. Employing what have
later been called “magic words,” the Court noted that the limi-
tation on expenditures applied only to expenditures for com-
munications “containing express words of advocacy of
election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast
your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’
‘reject.’ ” Id. at 44 n.52.
In McConnell, the Supreme Court retreated from its state-
ments in Buckley. Plaintiffs in McConnell challenged the fed-
eral definition of “electioneering communication” in BCRA,
arguing “that Buckley drew a constitutionally mandated line
between express advocacy and so-called issue advocacy, and
that speakers possess an invaluable First Amendment right to
engage in the latter category of speech.” 540 U.S. at 190. The
Court in McConnell emphasized that the distinction drawn in
Buckley between “express advocacy” and “so-called issue
advocacy” was not constitutionally compelled, but was rather
“the product of statutory interpretation rather than a constitu-
tional command.” Id. at 192. “In short, the concept of express
advocacy and the concomitant class of magic words were
born of an effort to avoid constitutional infirmities.” Id.
Despite the Court’s retreat from Buckley in McConnell,
AKRTL argues that Alaska’s definition of “electioneering
communications” is overbroad because it includes “issue
advocacy.” We disagree for two reasons.
[7] First, AKRTL is incorrect in arguing that “issue advoca-
cy” is included in the Alaska definition of “electioneering
communications.” Under Alaska’s law, “electioneering com-
ALASKA RIGHT TO LIFE v. MILES 3021
munications” have a distinct and non-overlapping definition
from “issues communications.” The disclosure requirements
to which AKRTL objects are triggered only by an expenditure
that supports an “express communication” or an “electioneer-
ing communication.” Alaska Stat. § 15.13.400(6)(C). The dis-
closure requirement is not triggered by an expenditure that
supports an “issues communication.” Id. The statute states
explicitly, “[E]xpenditure” . . . includes an express communi-
cation and an electioneering communication, but does not
include an issues communication.” Id. (emphasis added).
[8] Under the Alaska law, an “issues communication” is
defined as “a communication that (A) directly or indirectly
identifies a candidate; and (B) addresses an issue of national,
state, or local political importance and does not support or
oppose a candidate for election to public office.” Id. at
§ 15.13.400(12) (emphasis added). This definition of “issues
communication” is fully consistent with Buckley’s definition
of “issues advocacy.” Even if we were to agree with
AKRTL’s argument that issue advocacy cannot constitution-
ally come within the definition of “electioneering communi-
cation,” we would be compelled by the plain words of the
Alaska statute to conclude that “issue advocacy” is not
included within that definition.
[9] Second, as the Supreme Court noted in McConnell, the
line between express and issues advocacy is, in any event, not
constitutionally compelled. In construing the federal defini-
tion of “electioneering communication” under BCRA, the
Court upheld the constitutionality of the definition without
applying the Buckley distinction between the two kinds of
advocacy. The Court wrote:
Nor are we persuaded . . . that the First Amendment
erects a rigid barrier between express advocacy and
so-called issue advocacy. That notion cannot be
squared with our longstanding recognition that the
presence or absence of magic words cannot mean-
3022 ALASKA RIGHT TO LIFE v. MILES
ingfully distinguish electioneering speech from a
true issue ad. . . . Not only can advertisers easily
evade the line by eschewing the use of magic words,
but they would seldom choose to use such words
even if permitted. And although the resulting adver-
tisements do not urge the viewer to vote for or
against a candidate in so many words, they are no
less clearly intended to influence the election. Buck-
ley’s express advocacy line, in short, has not aided
the legislative effort to combat real or apparent cor-
ruption, and Congress enacted BCRA to correct the
flaws in the existing system.
540 U.S. at 193-94 (footnote omitted); see also ACLU of Nev.
v. Heller, 378 F.3d 979, 985 (9th Cir. 2004) (“After McCon-
nell, the line between ‘express’ and all other election-related
speech is not constitutionally material[.]”).
b. Overbreadth as Applied
[10] Alaska’s definition of “electioneering communica-
tions” as applied to AKRTL’s proposed telephone message is
not unconstitutionally overbroad as applied to AKRTL’s pro-
posed telephone message. That proposed message refers to
several issues concerning abortion, ascribes positions on those
issues to the two gubernatorial candidates, and urges the lis-
tener to vote. Under any reasonable understanding of that
message, the listener is being urged to vote for or against
these two candidates based on the positions described in the
message. Such a message is clearly regulable under both
Buckley and McConnell.
B. Disclosure Requirements
AKRTL challenges three different kind of disclosures that
a “nongroup entity” must make if it wishes to make an “elec-
tioneering communication.” First, the entity must register
with APOC. Second, the entity must report expenditures.
ALASKA RIGHT TO LIFE v. MILES 3023
Third, the entity must disclose that it is paying for its commu-
nications.
AKRTL argues that these disclosure requirements violate
its First Amendment rights. In part its argument depends on
its contention — which we have just rejected — that the defi-
nition of “electioneering communication” is unconstitution-
ally vague and overbroad. But in part its argument depends on
a free-standing contention that because it is an “MCFL orga-
nization,” as described in Federal Election Commission v.
Massachusetts Citizens for Life, 479 U.S. 238 (1986)
(“MCFL”), it is protected by the First Amendment from hav-
ing to make such disclosures.
We agree with AKRTL that it is a “nongroup entity” under
Alaska law, and that such an entity is an MCFL organization.
We also agree that MCFL organizations have greater protec-
tions under the First Amendment than traditional business
corporations. However, we disagree with AKRTL’s conten-
tion that Alaska’s disclosure requirements violate the First
Amendment rights of an MCFL organization.
1. MCFL Organizations
We begin our analysis with a description of the Supreme
Court’s holding in MCFL. Massachusetts Citizens for Life,
Inc. (“MCFL”), a nonprofit, nonstock corporation, brought a
First Amendment challenge to a provision of the Federal
Election Campaign Act of 1974, 2 U.S.C. § 441b. Section
441b imposed certain requirements on all corporations mak-
ing expenditures “in connection with” any federal election.
Among other things, § 441b required that campaign expendi-
tures not come from money in the corporation’s general fund.
Instead, such expenditures had to come from a separate, seg-
regated fund. The money in that fund could come only from
voluntary contributions “earmarked for that purpose by the
donors.” Id. at 252.
3024 ALASKA RIGHT TO LIFE v. MILES
In its majority opinion, the Court distinguished between a
“traditional corporatio[n] organized for economic gain” and a
corporation like MCFL. Id. at 259. In the Court’s view, a tra-
ditional corporation — an “organization that amass[es] great
wealth in the marketplace,” id. at 263 — may be regulated to
a greater extent. The Court defined a corporation like MCFL
as having three critical features: First, it “was formed for the
express purpose of promoting political ideas, and cannot
engage in business activities.” Second, it has no shareholders
or other affiliated persons with “a claim on assets or earn-
ings.” Third, it “was not established as a business corporation
or labor union, and it is its policy not to accept contributions
from such organizations.” Id. at 263-64.
The Court majority in MCFL construed § 441b to apply
only to expenditures and contributions for “express advoca-
cy.” Id. at 249. It then held that an organization meeting the
above criteria could not constitutionally be required to main-
tain a separate, segregated fund containing money specifically
solicited for campaign contributions. It wrote, “The limitation
on solicitation in this case . . . means that nonmember corpo-
rations can hardly raise any funds at all to engage in political
speech warranting the highest constitutional protection.” Id. at
260. The Court held that the limitation contained in § 441b
could not be constitutionally applied to corporations meeting
the MCFL criteria because it was too “broad [a] prophylactic
rule.” Id.
The Federal Election Commission (“FEC”) had advanced
two primary justifications for applying § 441b to MCFL.
First, the FEC had argued that MCFL-type organizations
might use an individual’s money for purposes not supported
by that individual. It contended that “even if contributors may
be aware that a contribution to appellee will be used for politi-
cal purposes in general, they may not wish such money to be
used for electoral campaigns in particular.” Id. at 261. The
Court majority responded by noting that this concern could be
met “by means far more narrowly tailored and less burden-
ALASKA RIGHT TO LIFE v. MILES 3025
some,” simply by “requiring that contributors be informed
that their money may be used for such a purpose.” Id. Second,
the FEC had argued that if the requirements of § 441b were
not applicable to MCFL, this “would open the door to mas-
sive undisclosed political spending by similar entities, and to
their use as conduits for undisclosed spending by business
corporations and unions.” Id. at 262. The majority responded
by noting that whatever interest the government had in disclo-
sure was satisfied by another, unchallenged provision of the
statute under which MCFL was required to report information
about independent expenditures “of as little as $200.” Id. The
Court therefore concluded that the FEC had not advanced a
“compelling state interest” sufficient to justify the application
of § 441b to MCFL. Id. at 263 (emphasis in original).
2. Degree of Scrutiny
The degree of scrutiny that we must apply to Alaska’s dis-
closure requirements for “nongroup entities” is somewhat
unclear. In Buckley, the Court applied “exacting scrutiny” to
various disclosure requirements in the Federal Election Cam-
paign Act, including disclosures of contributions as small as
$11 or $101 to minor-party and independent candidates, and
disclosures “by those who make independent contributions
and expenditures.” Buckley, 424 U.S. at 61-62; see also id. at
44-45 (“[T]he constitutionality of § 608(e)(1) turns on
whether the governmental interests advanced in its support
satisfy the exacting scrutiny applicable to limitations on core
First Amendment rights of political expression.” (emphasis
added)). “Exacting scrutiny,” in the words of Buckley,
required that a “ ‘substantial relation’ ” be shown “between
the governmental interest and the information required to be
disclosed.” Id. at 64. This “exacting scrutiny” standard in
Buckley was later characterized by the Court as requiring that
a restriction on corporate political expenditures be “narrowly
tailored to serve a compelling state interest.” Austin, 494 U.S.
at 657 (citing Buckley, 424 U.S. at 44-45).
3026 ALASKA RIGHT TO LIFE v. MILES
In McConnell, the Court appears to have relaxed the degree
of scrutiny. It explicitly applied a less exacting scrutiny to
campaign contributions. It wrote:
Because the electoral process is the very means
through which a free society democratically trans-
lates political speech into concrete governmental
action, contribution limits, like other measures aimed
at protecting the integrity of the process, tangibly
benefit public participation in political debate. For
that reason, when reviewing Congress’ decision to
enact contribution limits, there is no place for a
strong presumption against constitutionality, of the
sort often thought to accompany the words “strict
scrutiny.”
540 U.S. at 137 (internal quotation marks and citations omit-
ted). The Court was not as explicit about the appropriate stan-
dard of scrutiny with respect to disclosure requirements.
However, in addressing extensive reporting requirements
applicable to money gathered and disbursed to finance “elec-
tioneering communications” (as that term is defined in
BCRA), the Court did not apply “strict scrutiny” or require a
“compelling state interest.” See id. at 194-95 (describing dis-
closure requirements). Rather, the Court upheld the disclosure
requirements as supported merely by “important state inter-
ests.” Id. at 196 (“We agree with the District Court that the
important state interests that prompted the Buckley Court to
uphold FECA’s disclosure requirements . . . apply in full to
BCRA.” (emphasis added)). In the Court’s view, those “im-
portant state interests” “amply support[ed] application of [the]
disclosure requirements to the entire range of ‘electioneering
communications.’ ” Id.
In our recent opinion in Heller, relying on McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995), we applied strict
scrutiny in deciding a facial challenge to a state law requiring
“persons paying for or ‘responsible for paying for’ the publi-
ALASKA RIGHT TO LIFE v. MILES 3027
cation of ‘any material or information relating to an election
candidate or any question on a ballot’ to identify their names
and addresses on ‘any [published] printed or written matter or
any photograph.’ ” 378 F.3d at 981-82. We noted that
McConnell “casts new light” on some aspects of First Amend-
ment protections of election-related speech, but we concluded
that “nothing in McConnell undermines McIntyre’s under-
standing that proscribing the content of an election communi-
cation is a form of regulation of campaign activity subject to
traditional strict scrutiny.” Id. at 987.
[11] In some respects, the disclosure requirements in the
case now before us resemble the disclosure requirements at
issue in McConnell. In other respects — in particular the
requirements of Alaska Stat. §§ 15.13.090 and 15.13.135(b)
that the identity of a person paying for a “communication” be
disclosed — they resemble those at issue in Heller. For pur-
poses of this opinion we will assume without deciding that
strict scrutiny applies to all of the challenged disclosure
requirements, and that Alaska must advance a “compelling
state interest” to justify them. Even under this standard, we
hold that Alaska’s disclosure requirements are justified.
3. Three Forms of Required Disclosure
The three forms of challenged disclosure are registration,
reporting, and disclosure of who is paying for a communica-
tion. We first address AKRTL’s facial challenge. We then
address its as-applied challenge.
a. Facial Challenge to Disclosure Requirements
i. Registration
A nongroup entity must comply with the registration
requirements of Alaska Stat. §§ 15.13.050(a) and 15.13.067
before it can make an expenditure in support of or in opposi-
tion to a political candidate. Section 15.13.050(a) provides:
3028 ALASKA RIGHT TO LIFE v. MILES
Before making an expenditure in support of or in
opposition to a candidate . . . each person other than
an individual shall register, on forms provided by the
commission, with the commission.
The registration form provided by APOC in connection with
§ 15.13.050(a) is two pages long. It asks for basic informa-
tion, such as a nongroup entity’s name, its purpose, the names
and contact information of its officers, its campaign plans,
and banking information if it plans to raise more than $5,000.
Section 15.13.067 provides:
Only the following may make an expenditure in an
election for candidates for elective office:
(1) the candidate;
(2) an individual;
(3) a group that has registered under AS
15.13.050; and
(4) a nongroup entity that has registered
under AS 15.13.050.
The provision of this section covering a nongroup entity was
added to the Alaska campaign finance law as part of the 2001
and 2002 amendments.
The registration requirements of Alaska Stat.
§§ 15.13.040(a) and 15.13.167 are not significantly burden-
some in themselves. They are only burdensome to the extent
that they trigger the reporting and disclosure-of-who-is-
paying requirements applicable once a nongroup entity has
registered. We therefore postpone our consideration of bur-
dens, and the state’s justification for imposing them, to our
consideration of these requirements.
ALASKA RIGHT TO LIFE v. MILES 3029
ii. Reporting
AKRTL challenges the following reporting requirements
with which a nongroup entity must comply once it has regis-
tered.
First, AKRTL challenges Alaska Stat. §§ 15.13.040(d), (e),
and (j),2 which require a nongroup entity making an expendi-
2
The full text of § 15.13.040(d), (e), and (j) is as follows:
(d) Every individual, person, nongroup entity, or group making
an expenditure shall make a full report of expenditures, upon a
form prescribed by the commission, unless exempt from report-
ing. (e) The report required under (d) of this section must contain
the name, address, principal occupation, and employer of the
individual filing the report, and an itemized list of expenditures.
The report shall be filed with the commission no later than 10
days after the expenditure is made.
...
(j) Except as provided in (l) of this section [setting forth report-
ing requirements when fund-raising nets contributions under $50
each], each nongroup entity shall make a full report in accor-
dance with AS 15.13.110 upon a form prescribed by the commis-
sion and certified by the nongroup entity’s treasurer, listing
(1) the name and address of each officer and director of the
nongroup entity;
(2) the aggregate amount of all contributions made to the
nongroup entity for the purpose of influencing the outcome
of an election;
(3) for all contributions described in (2) of this subsection,
the name, address, date, and amount contributed by each
contributor and, for all contributions described in (2) of this
subsection in excess of $250 in the aggregate during a calen-
dar year, the principal occupation and employer of the con-
tributor; and
(4) the date and amount of all contributions made by the
nongroup entity, and, except as provided for certain indepen-
dent expenditures in AS 15.13.135(a), all expenditures made,
incurred, or authorized by the nongroup entity, for the pur-
3030 ALASKA RIGHT TO LIFE v. MILES
ture to make a “full report” of that expenditure on a form pro-
vided by APOC no later than ten days after the expenditure
is made. The report must contain the name, address, principal
occupation, and employer of the individual filing the report,
and an “itemized list” of expenditures (§ 15.13.040(c) and
(d)). Further, a nongroup entity must make a “full report,” at
intervals prescribed by § 15.13.110, listing the name and
address of each officer and director of the entity
(§ 15.13.040(j)(1)); the aggregate amount of all contributions
made to the entity for the purpose of influencing the outcome
of the election (§ 15.13.040(j)(2)); the name, address, date,
and amount contributed by each contributor to the entity, and,
for contributions by a particular contributor exceeding an
aggregate of $250 in any calendar year, the principal occupa-
tion and employer of that contributor (§ 15.13.040(j)(3)); and
the date and amount of all contributions made by the entity,
and, except for certain independent expenditures, all expendi-
tures made by the entity for the purpose of influencing the
outcome of an election (§ 15.13.040(j)(4)).
Second, AKRTL challenges Alaska Stat. § 15.13.074(i),
which requires a nongroup entity to notify a potential contrib-
utor of the purpose to which his contribution may be used if
that contribution is to be to influence the outcome of an elec-
tion.
pose of influencing the outcome of an election; a nongroup
entity shall report contributions made to a different nongroup
entity for the purpose of influencing the outcome of an elec-
tion and expenditures made on behalf of a different nongroup
entity for the purpose of influencing the outcome of an elec-
tion as soon as the total contributions and expenditures to
that nongroup entity for the purpose of influencing the out-
come of an election reach $500 in a year and for all subse-
quent contributions and expenditures to that nongroup entity
in a year whenever the total contributions and expenditures
to that nongroup entity for the purpose of influencing the
outcome of an election that have not been reported under this
paragraph reach $500.
ALASKA RIGHT TO LIFE v. MILES 3031
Third, AKRTL challenges Alaska Stat. § 15.13.082(b),
which provides that a “nongroup entity may not make an
expenditure unless the source of the expenditure has been dis-
closed by this chapter.”
Fourth, AKRTL challenges Alaska Stat. § 15.13.110,3
which specifies the deadlines for filing reports with APOC.
3
In relevant part, the text of § 15.13.110 provides:
(a) Each candidate, group, and nongroup entity shall make a
full report in accordance with AS 15.13.040 for the period ending
three days before the due date of the report and beginning on the
last day covered by the most recent previous report. If the report
is a first report, it must cover the period from the beginning of
the campaign to the date three days before the due date of the
report. If the report is a report due February 15, it must cover the
period beginning on the last day covered by the most recent pre-
vious report or on the day that the campaign started, whichever
is later, and ending on February 1 of that year. The report shall
be filed
(1) 30 days before the election; however, this report is not
required if the deadline for filing a nominating petition or
declaration of candidacy is within 30 days of the election;
(2) one week before the election;
(3) 105 days after a special election; and
(4) February 15 for expenditures made and contributions
received that were not reported previously . . . .
(b) Each contribution that exceeds $250 and that is made within
nine days of the election shall be reported to the commission by
date, amount, and contributor within 24 hours of receipt by the
candidate, group, campaign treasurer, or deputy campaign trea-
surer. Each contribution to a nongroup entity for the purpose of
influencing the outcome of an election that exceeds $250 and that
is made within nine days of the election shall be reported to the
commission by date, amount, and contributor within 24 hours of
receipt by the nongroup entity.
...
(f) During the year in which the election is scheduled, each of
the following shall file the campaign disclosure reports in the
manner and at the times required by this section:
3032 ALASKA RIGHT TO LIFE v. MILES
Finally, AKRTL challenges Alaska Stat. § 15.13.135(a),4
which requires a nongroup entity making an independent
expenditure supporting or opposing a candidate to make
reports under Alaska Stat. §§ 15.13.040 and 15.13.110, pro-
vided that the entity’s annual operating budget is more than
$150.
[12] We conclude that these reporting requirements survive
strict scrutiny. In Buckley, the Court wrote that in determining
whether a state’s interests in regulating campaign contribu-
tions and expenditures “are sufficient to justify the require-
ments we must look to the extent of the burden that they place
on individual rights.” 424 U.S. at 68. For several reasons, we
believe that the burdens imposed on nongroup entities by
these requirements are not particularly onerous.
[13] First, the challenged provisions require only reporting
of contributions to, and of contributions and expenditures by,
a nongroup entity. The provisions in no way limit the amount
that may be contributed to, or spent by, the entity.
[14] Second, unlike the provisions at issue in MCLF, the
...
(4) a group or nongroup entity that receives contributions
or makes expenditures on behalf of or in opposition to a per-
son described in (1)-(3) of this subsection [e.g., an individual
running for governor][.]
4
The full text of § 15.13.135(a) is as follows:
Only an individual, group, or nongroup entity may make an inde-
pendent expenditure supporting or opposing a candidate for elec-
tion to public office. An independent expenditure supporting or
opposing a candidate for election to public office, except an inde-
pendent expenditure made by a nongroup entity with an annual
operating budget of $250 or less, shall be reported in accordance
with AS 15.13.040 and 15.13.100-15.13.110 and other require-
ments of this chapter.
ALASKA RIGHT TO LIFE v. MILES 3033
challenged provisions do not “mean that [nongroup entities]
can hardly raise any funds at all to engage in political
speech[.]” MCLF, 479 U.S. at 260. There is no allegation in
this case that the reporting provisions limit the fundraising
ability of nongroup entities.
[15] Third, unlike the provisions at issue in MCLF, the
challenged provisions are not “broad prophylactic rule[s]”
that require structural changes in a nongroup entity, such as
the segregated fund requirement imposed by § 441b of the
Federal Election Campaign Act of 1974. Id. at 260. Instead,
the challenged provisions are very much like those that the
Court suggested in MCLF as alternative means by which Con-
gress could permissibly accomplish its aims. For example,
Alaska Stat. § 15.13.074(i) requires a nongroup entity to
notify a potential contributor of the political purpose to which
his contribution may be used. This provision corresponds
almost exactly to the Court’s suggestion in MCLF that Con-
gress could “requir[e] that contributors be informed that their
money may be used for [electoral campaigns].” Id. at 261.
Further, the reporting requirements of Alaska Stat.
§§ 15.13.040(d), (e) and (j), 15.13.082(b), 15.13.110, and
15.13.135(a) are very much the like the unchallenged report-
ing requirements in MCLF. The Court in MCLF pointed to
those requirements as accomplishing the aims of Congress
more precisely than the “broad prophylactic rule” of § 441b
that it held unconstitutional. Id. at 262.
[16] In light of the nature of the burdens imposed on a non-
group entity by Alaska’s registration and reporting require-
ments, we hold that these requirements are justified by
compelling state interests. As stated by the Court in Buckley,
those interests are, first, providing “the electorate with infor-
mation as to where political campaign money comes from and
how it is spent . . . in order to aid the voters in evaluating
those who seek . . . office”; second, “deter[ring] actual corrup-
tion and avoid[ing] the appearance of corruption by exposing
large contributors and expenditures to the light of publicity”;
3034 ALASKA RIGHT TO LIFE v. MILES
and, third, imposing “recordkeeping, reporting, and disclosure
requirements [as] an essential means of gathering the data
necessary to detect violations” of the campaign finance law.
Buckley, 424 U.S. at 66-68 (internal quotation marks omitted).
Or, as stated more succinctly by the Court in McConnell,
those interests are “providing the electorate with information,
deterring actual corruption and avoiding any appearance
thereof, and gathering the data necessary to enforce more sub-
stantive electioneering restrictions.” McConnell, 540 U.S. at
196.
[17] We therefore hold that the reporting provisions of
Alaska Stat. §§ 15.13.040(d), (e), (j), 15.13.074(i),
15.13.082(b), 15.13.110, and 15.13.135(a) are constitutional.
iii. Disclosure of Who Pays for a Communication
Once registered, a nongroup entity must also comply with
two provisions requiring that it disclose who is paying for a
communication. AKRTL challenges both provisions.
First, Alaska Stat. § 15.13.090 requires that most campaign
communications be accompanied by a statement indicating
who financed the communication. Specifically, it provides:
(a) All communications shall be clearly identified
by the words “paid for by” followed by the name and
address of the candidate, group, nongroup entity, or
individual paying for the communication. In addi-
tion, candidates and groups may identify the name of
their campaign chairperson.
(b) The provisions of (a) of this section do not
apply when the communication
(1) is paid for by an individual acting
independently of any group or nongroup
ALASKA RIGHT TO LIFE v. MILES 3035
entity and independently of any other indi-
vidual;
(2) is made to influence the outcome of a
ballot proposition as that term is defined by
AS 15.13.065(c); and
(3) is made for
(A) a billboard or sign; or
(B) printed material other than an
advertisement made in a newspaper or
other periodical.
As defined by § 15.13.400(3), a “communication” means an
“announcement or advertisement” that “directly or indirectly
identif[ies] a candidate or proposition[.]”
Second, Alaska Stat. § 15.13.135(b) requires much the
same kind of disclosure as § 15.13.090 for “independent
expenditures.” Specifically, it provides:
(b) An individual, group, or nongroup entity who
makes independent expenditures for a mass mailing,
for distribution of campaign literature of any sort, for
a television, radio, newspaper, or magazine adver-
tisement, or any other communication that supports
or opposes a candidate for election to public office
(1) shall comply with AS 15.13.090; and
(2) shall place the following statement in
the mailing, literature, advertisement, or
other communication so that it is readily
and easily discernible:
This NOTICE TO VOTERS is required
by Alaska law. (I/we) certify that this
3036 ALASKA RIGHT TO LIFE v. MILES
(mailing/literature/advertisement) is not
authorized, paid for, or approved by the
candidate.
[18] In effect, both provisions require that voters be
informed of the source and nature of funding for campaign
communications. Section 15.13.090 requires, with certain
specified exceptions, that communications be accompanied by
such information. Section 15.13.135(b) requires that, in addi-
tion to complying with § 15.13.090, communications support-
ing a candidate paid for by independent expenditures must
notify voters that the candidate did not authorize or pay for
the communication.
AKRTL does not argue that Alaska Stat. §§ 15.13.090 and
15.13.135(b) require disclosures for communications whose
anonymity is protected under McIntyre, 514 U.S. 334 (1995),
and Heller, 378 F.3d 979 (9th Cir. 2004). AKRTL’s challenge
is quite narrow. It only argues that to the degree disclosure of
its identity is required for “issue advocacy” communications
or their “functional equivalent,” there is no compelling state
interest that would justify such a requirement. We disagree for
two reasons.
First, as discussed above, the Court held in McConnell that
the line drawn in Buckley between express and issue advocacy
is not constitutionally compelled. Second, even if there were
some relevant protection of issue advocacy, and even if dis-
closures of the nongroup entity’s identity were required in
connection with such issue advocacy, there is a compelling
state interest justifying such a requirement.
[19] Leaving aside McIntyre-type communications which
are not implicated by the Alaska law, we believe that there is
a compelling state interest in informing voters who or what
entity is trying to persuade them to vote in a certain way. The
Court in McConnell quoted approvingly from the opinion of
the district court in justifying a requirement in BCRA that the
ALASKA RIGHT TO LIFE v. MILES 3037
identity of a corporation or labor union funding “purported
‘issue ads’ ” be disclosed to the voters. The district court had
written,
Plaintiffs [who object to the disclosure requirement]
never satisfactorily answer the question of how “un-
inhibited, robust, and wide-open” speech can occur
when organizations hide themselves from the scru-
tiny of the voting public . . . . Plaintiffs’ argument
for striking down BCRA’s disclosure provisions
does not reinforce the precious First Amendment
values that Plaintiffs argue are trampled by BCRA,
but ignores the competing First Amendment interests
in individual citizens seeking to make informed
choices in the political marketplace.
540 U.S. at 197 (quoting McConnell v. Fed. Election
Comm’n, 251 F.Supp.2d 176, 237 (D.D.C. 2003)). We under-
stand the reasons given by the Court in MCFL for differentiat-
ing between corporations and labor unions, on the one hand,
and so-called MCFL organizations, on the other, when sub-
stantial burdens on raising or spending money for political
speech are at issue. But we do not believe that those reasons
apply when disclosure of the entity funding a campaign com-
munication is at issue. “[I]ndividual citizens seeking to make
informed choices in the political marketplace,” id., have an
equal need to know what entity is funding a communication,
whether that entity is a corporation, a labor union, or a “non-
group entity” as defined under Alaska law.
[20] We therefore conclude that the compelling state inter-
ests of “providing the electorate with information, deterring
actual corruption and avoiding any appearance thereof, and
gathering the data necessary to enforce more substantive elec-
tioneering restrictions,” McConnell, 540 U.S. at 196, justify
the application of Alaska Stat. §§ 15.13.090 and 15.13.135(b)
to nongroup entities.
3038 ALASKA RIGHT TO LIFE v. MILES
b. As-Applied Challenge to Disclosure Requirements
[21] In McConnell, the Court rejected plaintiffs’ as-applied
challenges to disclosure requirements in BCRA because the
plaintiffs had not presented evidence in the district court
establishing the “requisite ‘reasonable probability’ of harm”
to persons making the required disclosures. 540 U.S. at 199.
In this case, as in McConnell, AKRTL has not shown a “ ‘rea-
sonable probability’ of harm,” in the sense intended in
McConnell, as a result of its being required to make the dis-
closures required under the Alaska campaign law. We there-
fore reject its as-applied challenge.
VI. Conclusion
For the foregoing reasons, we conclude that the challenged
provisions of Alaska’s campaign finance law are constitu-
tional, both facially and as applied to AKRTL. We therefore
AFFIRM the decision of the district court.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
638 F.Supp. 1340 (1986)
PISTACHIO GROUP OF the ASSOCIATION OF FOOD INDUSTRIES, INC., et al., Plaintiffs,
v.
UNITED STATES, Defendant.
California Pistachio Commission, et al., Defendant-Intervenors.
No. 86-03-00369.
United States Court of International Trade.
June 26, 1986.
Harris & Berg, Herbert E. Harris, II and Cheryl Ellsworth, Washington, D.C., for plaintiffs.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Dir., Dept. of Justice, Commercial Litigation Branch, Platte B. Moring, III, Washington, D.C., for defendant.
Fried, Frank, Harris, Shriver & Jacobson, David E. Birenbaum, Washington, D.C., for defendant-intervenors.
Memorandum Opinion and Order
DiCARLO, Judge.
Plaintiffs, importers of Iranian pistachios, challenge the determination of the United States Department of Commerce, International Trade Administration (Commerce) in Certain In-Shell Pistachios From Iran: Final Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 18919 (May 23, 1986) and move for a preliminary injunction restraining the United States Customs Service (Customs) from requiring a cash deposit or bond equal to the estimated antidumping duty for all unliquidated entries filed for consumption on or after December 11, 1985.
*1341 No antidumping duty order has yet been issued, and plaintiffs invoke this Court's jurisdiction under 28 U.S.C. § 1581(i)(2) (1982). Since plaintiffs may challenge Commerce's determination under the provisions of Section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (1982 & Supp. II 1984) and 28 U.S.C. § 1581(c) (1982) after the issuance of an antidumping duty order, and plaintiffs have not shown that avenue of relief to be manifestly inadequate, the action is dismissed.
Background
In October, 1985 Commerce commenced an investigation of sales at less than fair value in the United States of pistachios imported from Iran. 50 Fed.Reg. 42978 (1985). On March 11, 1986, Commerce published its Preliminary Determination of Sales at Less Than Fair Value; Certain In-Shell Pistachios From Iran, 51 Fed. Reg. 8342 (1986), directing Customs to suspend liquidation of all entries of the merchandise. Commerce found that imports of the merchandise present "critical circumstances" under 19 U.S.C. § 1671b(e) (1982), and accordingly liquidation was also suspended for all unliquidated entries of the merchandise entered, or withdrawn from warehouse, for consumption on or after December 11, 1985. 51 Fed.Reg. at 8343. Commerce found the estimated dumping margin to be 192.54%, and directed Customs to require a cash deposit or bond equal to that amount for all entries subject to the suspension order.
On March 25, 1986 plaintiffs brought an action challenging Commerce's preliminary determination, and simultaneously moved for a preliminary injunction.
On April 16, 1986 defendant moved to dismiss the action for lack of jurisdiction. On May 5, 1986 the California Pistachio Commission and seven domestic producers and processors of pistachios were granted leave to intervene as defendants. Intervenors also move to dismiss the action.
Commerce published its final determination on May 23, 1986, finding a weighted-average dumping margin of 241.14%. Certain In-Shell Pistachios From Iran; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 18919 (1986). At oral argument on May 30, 1986, the Court denied defendant's motion to dismiss the action challenging the preliminary determination as moot, and granted plaintiffs' oral motion to amend the complaint to challenge Commerce's final determination.
The parties agree and the Court finds that the Court lacks jurisdiction over the action under 28 U.S.C. § 1581(c) since Commerce has not published a final antidumping duty order. The question presented is whether the Court properly may exercise jurisdiction under 28 U.S.C. § 1581(i) in an action challenging a final affirmative determination of sales at less than fair value before the publication of a final antidumping duty order where plaintiffs allege that (1) the posting of a cash deposit or bond equal to the estimated dumping margin will cause them irreparable injury and (2) the determination is "fundamentally flawed" since the dumping margin is solely attributable to an error in the exchange rate used in converting Iranian rials to United States dollars.
Discussion
An action challenging a final affirmative determination of sales at less than fair value may be brought under 19 U.S.C. § 1516a(a)(2) (1982 & Supp. II 1984) and 28 U.S.C. § 1581(c) within 30 days after the publication in the Federal Register of a final antidumping duty order. Under the Trade and Tariff Act of 1984 [1984 Trade Act], Pub.L. No. 98-573, § 623(a), 98 Stat. 2948, 3040 (1984), parties may challenge less than fair value determinations only as provided under 19 U.S.C. § 1516a (1982 & Supp. II 1984).
A final antidumping duty order is published by Commerce only after the International Trade Commission (Commission) makes a final affirmative determination under section 1673d(b). See 19 U.S.C. 1673d(c)(2) (1982). In this case the Commission's final determination will be issued shortly, in accordance with 19 U.S.C. § 1673d(b)(2).
*1342 In addition to its jurisdiction under 28 U.S.C. § 1581(a)-(h), this Court has jurisdiction over all civil actions brought against the United States arising out of any law of the United States providing for "tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue." 28 U.S.C. § 1581(i)(2). Section 1581(i) jurisdiction may not be exercised in circumvention of the jurisdictional scheme established by section 1581(a)-(h). See United States v. Uniroyal, Inc., 69 CCPA 179, 183-84, 687 F.2d 467, 472 (1982); Wear Me Apparel Co. v. United States, 10 CIT ___, 636 F.Supp. 481, 483 (C.I.T.1986).
In United States Cane Sugar Refiners' Ass'n v. Block, 3 CIT 196, 544 F.Supp. 883, aff'd, 69 CCPA 172, 683 F.2d 399 (1982), this Court held that an action challenging a presidential proclamation imposing import quotas on sugar was properly brought under section 1581(i). The Court said that it would be unreasonable to require plaintiff to attempt to import over-quota sugar in order to obtain a protestable exclusion of the merchandise before seeking judicial review of the validity of the proclamation under section 1581(a). 3 CIT at 201, 544 F.Supp. at 886. On appeal, the Court of Appeals for the Federal Circuit upheld the Court's finding of jurisdiction under section 1581(i):
Respecting jurisdiction under § 1581(i), we note the provision of injunctive powers to the Court of International Trade in the Customs Courts Act of 1980 and the special circumstances of this case which, absent that provision, would have required [plaintiff] to present its case to the District Court. We are persuaded that in this case, involving the potential for immediate injury and irreparable harm to an industry and a substantial impact on the national economy, the delay inherent in proceeding under § 1581(a) makes relief under that provision manifestly inadequate and, accordingly, the court has jurisdiction in this case under § 1581(i).
683 F.2d at 402 n. 5.
In light of the opinion in United States Cane Sugar Refiners' Ass'n, the Court holds that in this case, where judicial review might be available under section 1581(c), the question presented is whether the remedy available to plaintiff under section 1581(c) would "involv[e] the potential for immediate injury and irreparable harm," making relief under that provision manifestly inadequate, and exercise of jurisdiction under section 1581(i) appropriate.
Plaintiffs contend that the cash or bond requirement imposed by Commerce's final determination constitutes the irreparable injury prerequisite to jurisdiction under section 1581(i) and to injunctive relief. Plaintiffs claim that if they cannot challenge Commerce's determination until after the International Trade Commission has made an affirmative injury determination and a final antidumping duty order is published, the prospective bond or deposit requirement will halt the importation of pistachios from Iran, which will cause them to suffer loss of market share and customers. Plaintiffs argue that judicial intervention into the ongoing administrative proceedings is particularly appropriate since the deposit or bond requirement is to be applied retroactively to entries made for consumption on or after December 11, 1985.
Plaintiffs did not seek a temporary restraining order, nor did they move for an expedited hearing or briefing schedule in this case. Only a short time remains before a final injury determination will be issued, which, if affirmative, will result in the publication of an antidumping duty order reviewable under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c). The claim of irreparable injury is supported by the affidavit of only one importer stating that one bonding company will not post a bond covering entries made between December 11, 1985 and March 11, 1986 unless the importer obtains a letter of credit. The importer states it cannot obtain the letter of credit and that without the cash or bond it will be compelled to reexport the entered merchandise at substantial cost and to cease its regular business of importing pistachios from Iran.
*1343 Plaintiffs' argument that the Court has jurisdiction in this situation under Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed.Cir.1983), is misplaced. In Zenith, the Federal Circuit held that a domestic manufacturer was entitled to an injunction restraining the liquidation of entries which were the subject of a challenged review under section 751 of the Trade Agreements Act of 1979, current version at 19 U.S.C. § 1675 (1982 & Supp. II 1984). In its analysis of the criteria required for injunctive relief, the Zenith Court found plaintiff's injury was irreparable since the immediate liquidation of all of the entries occurring during the review period would "eliminate the only remedy available to Zenith for an incorrect review determination by depriving the trial court of the ability to assess [correct] dumping duties," thereby abrogating effective judicial review. 710 F.2d at 810.
In this case liquidation has been suspended and plaintiffs' challenge to Commerce's determination may be properly addressed in an action brought under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c).
Plaintiffs in this case seek to avoid the normal consequences of the antidumping laws. Once Commerce has published a preliminary affirmative determination of sales at less than fair value, 19 U.S.C. § 1673b(b) (1982), Commerce is required to order the suspension of liquidation of all subject entries and to order the posting of a cash deposit, bond, or other security equal to the estimated dumping margin. 19 U.S.C. § 1673b(d) (1982).
In Krupp Stahl AG v. United States, 553 F.Supp. 394 (1982), the Court refused to issue a preliminary injunction requiring Commerce to review information supplied by the plaintiff in an antidumping investigation before issuing its preliminary determination, which would set the amount of dumping duties on subsequent entries of the plaintiff's products. Plaintiffs rely on Krupp Stahl since the Court did "not rule out the possibility that administrative actions taken in the course of the administration of the antidumping and countervailing duty laws may cause such hardships as would justify judicial review." Id. at 396.
The Court is persuaded that Krupp Stahl supports a finding in this case that plaintiffs have shown neither manifest inadequacy nor irreparable harm:
So far as can be seen in the present circumstances, the deposit of estimated duties will not cause a hardship of the type which justifies judicial intrusion into an ongoing administrative investigation (Bethlehem Steel Corp. v. E.P.A., 669 F.2d 903 (3d Cir.1982). The effect on plaintiff is closer to the normal consequences of involvement in these investigations. Cf. F.T.C. v. Standard Oil Co. of California, 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980).
553 F.Supp. at 396.
The injury alleged by plaintiffs does not persuade the Court that the action must be entertained prior to the issuance of a final antidumping order. The Court holds that section 1581(i) jurisdiction is not available where the hardship alleged is that which is imposed by statute and an avenue for effective judicial relief is available under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c).
Plaintiffs' argument regarding the merits of their claim is not germane to the jurisdictional inquiry. Plaintiffs claim that the dumping margin estimated by Commerce resulted solely from the Federal Reserve Bank's certification to Commerce of official Iranian exchange rates which do not represent the actual value of the Iranian currency. They argue that the rate used by the Federal Reserve Bank in converting Iranian rials to U.S. dollars is erroneous as a matter of law, and that the margin would have been zero if the actual value of the rial had been properly ascertained under the provisions of 31 U.S.C. § 5151(e).
A Commerce regulation states that "any necessary conversion of a foreign currency into its equivalent in United States currency shall be made in accordance with the provisions of section 522 of the Tariff Act of 1930, as amended [31 U.S.C. § 5151]." 19 C.F.R. § 356.56 (1985). Section 5151 sets forth the manner in which rates of *1344 exchange are ascertained and certified by the Federal Reserve Bank of New York.
If and when, in an action brought under section 1581(c), the Court is called upon to review Commerce's finding of sales at less than fair value, the Court will examine the record to determine whether the exchange rate used by Commerce is supported by substantial evidence and in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B) (1982). The Court's review will not be limited, as claimed by defendant, to determining whether Commerce followed its regulation. See 19 C.F.R. § 353.56 (1985). Although Commerce may reasonably publich a rule under which currencies are converted in accordance with the provisions of 31 U.S.C. § 5151 (1982), see Melamine Chemicals, Inc. v. United States, 732 F.2d 924 (Fed. Cir.1984), a reasonable delegation of agency responsibility does not divest the Court of its own statutorily mandated responsibilities.
Conclusion
For the reasons stated above, the Court finds that plaintiffs have not shown the potential for immediate injury and irreparable harm which would render relief under section 1581(c) manifestly inadequate and justify the Court's exercise of jurisdiction under 28 U.S.C. § 1581(i)(2). Accordingly, the action is dismissed. So ordered.
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74 F.3d 292
151 L.R.R.M. (BNA) 2289, 64 USLW 2471,131 Lab.Cas. P 11,492
UNITED FOOD AND COMMERCIAL WORKERS, AFL-CIO, LOCAL NO. 880, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 95-1123, 95-1260.
United States Court of Appeals,District of Columbia Circuit.
Argued Dec. 11, 1995.Decided Jan. 26, 1996.
On Petitions for Review of Orders of the National Labor Relations Board.
Laurence S. Gold, Washington, DC, argued the cause, for petitioners with whom George R. Murphy, David M. Silberman, Virginia A. Seitz and Judith A. Scott were on the briefs. George Wiszynski and Peter J. Ford entered appearances.
Robert J. Englehart, Washington, DC, argued the cause, for respondent with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret G. Neigus, Supervisory Attorney, were on the brief. Paul J. Spielberg, Deputy Assistant General Counsel, and Jill A. Griffin, Attorney, entered appearances.
Peter B. Kupelian, Southfield, MI, argued the cause and filed the brief, for intervenor Macomb Mall Associates, a limited partnership.
John S. Irving, Jr., Washington, DC, argued the cause for amicus curiae Chamber of Commerce of the United States et al., with whom Christopher Landau, Stephen A. Bokat, Mona C. Zeiberg and Hymen Bear were on the brief.
Harold R. Weinrich, Washington, DC, entered an appearance for intervenor Sears, Roebuck & Company.
Before: EDWARDS, Chief Judge, BUCKLEY and WILLIAMS, Circuit Judges.
HARRY T. EDWARDS, Chief Judge:
1
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112-13, 76 S.Ct. 679, 684-85, 100 L.Ed. 975 (1956), the Supreme Court held "that an employer may validly post his property against nonemployee distribution of union literature," except when "the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them." For more than 35 years, the courts have consistently enforced Babcock 's mandate, holding that, as a general rule, section 7 of the National Labor Relations Act ("NLRA" or "Act")1 does not give nonemployee union advocates the right of access to private property. In 1992, the Supreme Court, in Lechmere, Inc. v. NLRB, 502 U.S. 527, 538-39, 112 S.Ct. 841, 848-49, 117 L.Ed.2d 79 (1992), reaffirmed the general rule of Babcock and emphasized the narrowness of Babcock 's "inaccessibility exception."
2
In the instant cases, representatives and members of petitioner unions sought access to store-owned properties to distribute literature to the stores' would-be customers. In each instance, the unions were denied, or otherwise restricted, in their attempts to gain trespassory access to private property. Complaints were filed with the National Labor Relations Board ("NLRB" or "Board"). Applying the rationale of Babcock, the Board ruled that the owners were permitted to restrict access because petitioners failed to show that the customers were not reasonably accessible through nontrespassory means of communication.
3
The unions claim that the Board erred in applying the Babcock doctrine, arguing that Babcock and Lechmere involved union attempts to organize employees (a "derivative" exercise of the employees' section 7 right to self-organization),2 whereas here the unions' attempted communications were directed at the stores' customers (an alleged direct exercise of the union members' right to engage in concerted activities for mutual aid or protection). The unions also seek review of the Board's decision requiring a union to show that mass media advertising is not a reasonably effective alternative for communicating the union's message in order to invoke the "inaccessibility exception."
4
We find no merit in petitioners' attempts to distinguish Babcock and Lechmere. Under the established case law, it would make no sense to hold that nonemployees have a greater right of access when attempting to communicate with an employer's customers than when attempting to communicate with an employer's employees. Indeed, if anything, under Supreme Court jurisprudence, the hierarchy of rights under section 7 is just the opposite of what the unions assert: Babcock and its progeny indicate that, when it comes to balancing an employer's property rights against rights protected under section 7 of the NLRA, the interest of nonemployees in organizing an employer's employees is stronger than the interest of nonemployees engaging in protest or boycott activities directed at an employer's customers. The cases cited approvingly by the Court in Lechmere manifest this hierarchy. Furthermore, the Board's ruling regarding mass media advertising comports with the discussion in Lechmere regarding the narrowness of the inaccessibility exception. Although Lechmere itself involved organizational activity, we find no support for the suggestion by petitioners that the exception should be easier to satisfy in the context of nonorganizational activity. Accordingly, the petitions for review are denied.
I. THE SUPREME COURT'S DECISION IN LECHMERE
5
At bottom, the unions assert that, in construing Lechmere to apply to nonorganizational activity, the NLRB has impermissibly extended the reach of Babcock. According to petitioners, the issues here have yet to be addressed by the Supreme Court, and the Board erred in suggesting otherwise. The Board, on the other hand, found that whatever doubts existed under Babcock regarding the rights of nonemployee union advocates to gain access to an employer's private property were resolved by the Court's decision in Lechmere. We agree with the Board that, although Lechmere does not purport to decide the precise questions at hand in these cases, the Court's rationale in Lechmere disposes of the issues raised by petitioners. In fact, for us to rule otherwise would require a dismantling of the Babcock doctrine, something certainly not endorsed by the Court in Lechmere.
6
In Lechmere, the Court reversed an NLRB ruling that a retail store owner had violated the NLRA by barring nonemployee union organizers from entering its property to distribute union literature. The Board had based its ruling on a multi-factor balancing test set forth in Jean Country, 291 N.L.R.B. 11, 1988 WL 214053 (1988).3 The Board deemed its balancing test applicable to "all access cases," 291 N.L.R.B. at 14, without regard for whether those seeking access were employees or nonemployees of the employer seeking to prevent access.
7
The Court found that, "[a]t least as applied to nonemployees, Jean Country impermissibly ... erod[ed] Babcock 's general rule that 'an employer may validly post his property against nonemployee distribution of union literature,' " a general rule that the Lechmere Court expressly reaffirmed. 502 U.S. at 538, 112 S.Ct. at 848 (quoting Babcock, 351 U.S. at 112, 76 S.Ct. at 684). The Court also took pains to reiterate Babcock 's observation "that the [NLRA] drew a distinction 'of substance' between the union activities of employees and nonemployees," id. at 537, 112 S.Ct. at 538 (citation omitted), and the Court repudiated any notion that subsequent cases had in any way altered Babcock 's central holding, id. at 534, 112 S.Ct. at 846. Thus, although "accommodation between employees' Sec. 7 rights and employers' property rights 'must be obtained with as little destruction of one as is consistent with the maintenance of the other,' " id. at 534, 112 S.Ct. at 846 (quoting Babcock, 351 U.S. at 112, 76 S.Ct. at 684), the Court held in accordance with Babcock that "[i]t is only where [reasonable] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a ... level" where employees' and employers' rights are balanced, id. at 538, 112 S.Ct. at 848.
8
In Lechmere, the Court also noted that section 7, "[b]y its plain terms ... confers rights only on employees, not on unions or their nonemployee organizers." 502 U.S. at 532, 112 S.Ct. at 845; see also 29 U.S.C. Sec. 157. The Court observed, however, that employees' self-organization rights depend to some degree on the employees' ability to learn from others the advantages of self-organization, and that therefore section 7 "may, in certain limited circumstances, restrict an employer's right to exclude nonemployee union organizers from his property." 502 U.S. at 532, 112 S.Ct. at 845.
9
According to the Court, those "limited circumstances" are defined by the "limited scope" of the inaccessibility exception recognized in Babcock that applies "where 'unique obstacles' prevent[ ] nontrespassory methods of communication." Id. at 540, 535, 112 S.Ct. at 849-50, 847 (quoting Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 205-06 n. 41, 98 S.Ct. 1745, 1761-62 n. 41, 56 L.Ed.2d 209 (1978)). The Court explained that the exception "is a narrow one" and is not to be applied simply because nontrespassory access is "cumbersome or less-than-ideally effective," id. at 539, 112 S.Ct. at 840; rather, the exception is designed to protect communication-dependent section 7 rights when the target audience is "isolated from the ordinary flow of information that characterizes our society," and the "union's burden of establishing such isolation is ... 'a heavy one,' " id. at 540, 112 S.Ct. at 849 (quoting Sears, 436 U.S. at 205, 98 S.Ct. at 1761). Further, the Court noted that advertising may constitute "reasonably effective" communication that would render the inaccessibility exception unavailable. Id.
10
The core idea of Lechmere appears to be that, under section 7 of the NLRA, the private property interest of an employer is sacrosanct as against uninvited nonemployees, except in the narrow circumstance where the nonemployees are union organizers who have no other reasonable alternative means of communicating with the employer's employees. There is absolutely nothing in Lechmere (nor in the Court's decisions preceding it) suggesting that the rights of nonemployees are enhanced when access to private property is sought by nonemployees to communicate with the employer's customers, rather than the employer's employees.
11
With this background in mind, we turn to the cases here before us.
12
II. FACTS AND PROCEDURAL HISTORIES OF PETITIONERS' CASES
A. Oakland Mall II
13
In July 1988, Sears, Roebuck & Co. ("Sears") canceled a long-standing home delivery service contract with Ryder DPD ("Ryder"), and contracted instead with Leaseway Trucking. As a result of losing its contract with Sears, Ryder laid off about 100 drivers. In response, the International Brotherhood of Teamsters Local 243 ("Teamsters"), who represented Ryder's employees, prepared a handbill for the laid-off drivers to distribute to would-be customers of Sears, urging them not to patronize Sears until Sears once again contracted with Ryder.
14
On August 2, 1988, six laid-off Ryder drivers, accompanied by one union representative, began to distribute the handbill at two of the eight exterior entrances, and at the one mall entrance, to the Sears store at the Oakland Mall in Troy, Michigan. Each distribution location was on Sears' property. Similarly, on August 9 and 10, 1988, and again on September 7, 1988, the laid-off drivers sought to distribute the same handbill at four entrances to the Sears store in the Macomb Mall in Roseville, Michigan. Three of these entrances were on Sears' property, and one entrance was on mall property. The handbillers' activities were limited to distributing the handbill and asking customers to speak to Sears' management on behalf of the laid-off drivers; no signs were carried or displayed, and there was no picketing at either Sears store.
15
On each occasion, Sears and/or mall management forced those distributing handbills to leave the premises. While Sears flatly prohibited the handbilling on its property, Macomb Mall Associates ("Macomb Mall") sought to enforce its general, nondiscriminatory policy of requiring nontenant organizations wishing to engage in solicitation or petitioning on mall property to obtain, and to name Macomb Mall as an additional insured under, a liability insurance policy covering bodily injury.
16
The Teamsters filed unfair labor practice charges against Sears and the two malls, alleging that exclusion of the handbillers from property owned by Sears and the malls violated section 8(a)(1) of the NLRA, 29 U.S.C. Sec. 158(a)(1). The NLRB initially affirmed the determination of an Administrative Law Judge ("ALJ") that Sears and the malls had violated the Act. See Oakland Mall, Ltd., 304 N.L.R.B. 832, 1991 WL 181863 (1991) ("Oakland Mall I" ). Sears and Macomb Mall petitioned for review in this court, and the Board filed a cross-application for enforcement of its order. While the case was pending, the Supreme Court decided Lechmere, in light of which this court remanded the case for the Board's reconsideration.
17
On remand, the NLRB held that the Babcock analysis affirmed in Lechmere is applicable to nonemployee consumer boycott activities, such as the handbilling at issue in Oakland Mall I. Oakland Mall, Ltd., 316 N.L.R.B. 1160, 1995 WL 220095 (1995) ("Oakland Mall II" ). The Board "assume[d], without deciding, that the Lechmere analysis affords the possibility of an exception permitting access to private property for nonemployee consumer boycott activity if a union can prove that an employer's customers are not reasonably accessible by nontrespassory methods." Id. at 1163 n. 13. Thus, the NLRB turned to the question of whether the union had proven that it had no reasonable alternative means of communicating with Sears' customers. A majority of the Board ruled that, in light of Lechmere, which "emphasized the narrowness of the inaccessibility exception," it was "necessary to reconsider" and overrule Board precedent, such as Jean Country, that had held "that 'generally it will be the exceptional case where the use of newspapers, radio, and television will be feasible alternatives to direct contact.' " Id. at 1163 (quoting Jean Country, 291 N.L.R.B. at 13). Rather, the Board adopted a rule whereby a union "must show that the use of the mass media ... would not be a reasonable alternative means for the Union to communicate its message." Id.
18
The Board decided that the union in the present case had made no such showing; indeed, the Board found that the union did not consider the option of mass-media communication of its message to Sears' potential customers. Id. Thus, the Board majority ruled that the union had failed to carry its heavy burden of proving "unique obstacles" to the communication of its consumer boycott message to Sears' customers, and concluded that Sears and Macomb Mall did not act unlawfully in respectively prohibiting and imposing an insurance requirement on the union's handbilling on their properties.4 Id. at 1164.
B. Loehmann's Plaza II
19
In the second case under review, representatives of United Food and Commercial Workers Union Local No. 880, AFL-CIO ("UFCW") directed both picketing and handbilling at the customers of Makro, Inc. ("Makro"), which operates a retail store in a strip mall owned by Loehmann's Plaza in Willoughby Hills, Ohio. The picket signs and leaflets implored customers not to shop at the Makro store because Makro's treatment of its non-union employees might jeopardize union-negotiated wage and benefit standards for retail employees in the area. This "area standards" activity was conducted by representatives of UFCW, union members who worked at stores other than Makro, and paid pickets including family and friends of union members and representatives.
20
Makro and the mall owner directed the picketers and handbillers to leave their positions at the entrances and exits of the Makro store. When they refused, Makro and the mall owner obtained a state-court injunction preventing more than certain numbers of picketers from taking up positions in front of Makro's store and the entrance to the parking lot, and restraining the parking-lot picketers from coming within 25 feet from the front of the building. The union, in turn, filed an unfair labor practice charge, alleging a violation of section 8(a)(1).
21
The Board initially ruled that Makro and the mall owner had acted unlawfully. Makro, Inc., 305 N.L.R.B. 663, 1991 WL 251696 (1991) ("Loehmann's Plaza I" ). However, petitions for review and for enforcement were filed before the Sixth Circuit, which remanded the case to the Board for reconsideration in light of Lechmere.
22
The NLRB reversed its initial decision, and instead decided to dismiss the union's complaint. Makro, Inc., 316 N.L.R.B. 109, 1995 WL 35600 (1995) ("Loehmann's Plaza II" ). As in Oakland Mall II, the Board majority applied the Babcock analysis affirmed in Lechmere, concluding that "the Union had a reasonable alternative for conveying its message" through picketing at the entrances to the shopping center. Id. at 113. And as in Oakland Mall II, the union seeks review of the Board's interpretation of Lechmere as requiring Babcock analysis in this case. However, "[n]o review is sought ... of the Board's determination that, if Babcock applies, reasonable alternative means existed to communicate with Makro's potential customers." Brief for the Petitioners at 12 n. 2.
23
III. APPLICATION OF THE BABCOCK RULE OUTSIDE THE
ORGANIZATIONAL CONTEXT
24
At heart, this case is a simple one. Babcock establishes (and Lechmere reaffirms) a general rule under which an employer may deny access to nonemployees seeking to trespass on the employer's property. In the cases at hand, petitioners' activities involved the trespass of nonemployees onto employers' properties, in response to which the employers barred them access. No recognized right under section 7 has been shown to apply; therefore, the employers' actions were not unlawful under the NLRA. There should be no more to the matter than that. However, petitioners attempt to obfuscate this straightforward analysis by proffering artificial distinctions between the section 7 rights asserted in Babcock and Lechmere, and those being asserted here.
25
In particular, petitioners make much of the fact that Lechmere involved organizational section 7 activity, and argue that the Court's reasoning in that case does not apply to consumer boycott and "area standards" activities directed at an employer's customers. We decline to read Lechmere so narrowly. As the Board has observed, there is "no suggestion in the Court's opinion ... that it focused on organizing activities for any reason other than that Lechmere was an organizing case, and that the Court was simply (and prudently) deciding the case before it." Leslie Homes, Inc., 316 N.L.R.B. 123, 128, 1995 WL 35604, pet. for review denied sub nom. Metropolitan Dist. Council of Phila. and Vicinity United Bhd. of Carpenters and Joiners of Am. v. NLRB, 68 F.3d 71 (3d Cir.1995).
26
Moreover, Lechmere clearly does not purport to overrule, or even modify, prior Court precedent dealing with the tension between property rights and alleged section 7 rights. The precedent cited approvingly in Lechmere establishes that, if there are any rights at all to be asserted outside the organizational context, Babcock applies. Compare Sears, 436 U.S. at 204, 98 S.Ct. at 1761 (The Court observed "that Babcock extends to Sec. 7 rights other than organizational activity, though the 'locus' of the 'accommodation of Sec. 7 rights and private property rights ... may fall at differing points along the spectrum depending on the nature and strength of the respective Sec. 7 rights and private property rights asserted in any given context.' " (quoting Hudgens v. NLRB, 424 U.S. 507, 522, 96 S.Ct. 1029, 1037-38, 47 L.Ed.2d 196 (1976))) with Central Hardware Co. v. NLRB, 407 U.S. 539, 544-45, 92 S.Ct. 2238, 2241-42, 33 L.Ed.2d 122 (1972) (The Court stated that "[t]he principle of Babcock is limited to [an] accommodation between organization rights and property rights. This principle requires a 'yielding' of property rights only in the context of an organization campaign.... In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns, and the 'yielding' of property rights it may require is both temporary and minimal.").
27
Further, assuming, arguendo, that nonemployees have rights to assert in the nonorganizational context, it makes sense that the Babcock rule reaffirmed in Lechmere would apply with no less force in the context of area standards or consumer boycott activities. Supreme Court precedent clearly establishes that, as against the private property interest of an employer, union activities directed at consumers represent weaker interests under the NLRA than activities directed at organizing employees. A long history of cases manifests a hierarchy among section 7 rights, with organizational rights asserted by a particular employer's own employees being the strongest, the interest of nonemployees in organizing an employer's employees being somewhat weaker, and the interest of uninvited visitors in undertaking area standards activity, or otherwise attempting to communicate with an employer's customers, being weaker still.5 Thus, "[u]nder the Sec. 7 hierarchy of protected activity imposed by the Supreme Court," nonemployee activity in which "the targeted audience was not [an employer's] employees but its customers" "warrants even less protection than non-employee organizational activity." NLRB v. Great Scot, Inc., 39 F.3d 678, 682 (6th Cir.1994).
28
Therefore, given that "nonemployee organizational trespassing ha[s] generally been prohibited except where 'unique obstacles' prevented nontrespassory methods of communication," Lechmere, 502 U.S. at 535, 112 S.Ct. at 847 (quoting Sears, 436 U.S. at 205-06 n. 41, 98 S.Ct. at 1761-62 n. 41), it follows a fortiori that nonemployee trespassing for purposes of asserting weaker section 7 interests will be prohibited in the absence of "unique obstacles" triggering the inaccessibility exception. Moreover, "the balance struck ... under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity," so "[e]ven on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation, it would be unprotected in most instances." Sears, 436 U.S. at 205-06, 98 S.Ct. at 1762 (footnote omitted).
29
Finally, the distinction urged by petitioners between derivative and nonderivative section 7 rights is unsupported by the case law. The alleged distinction can be traced back to Babcock, where the Court observed that the strength of nonemployee organizers' interest in access to an employer's property flows from, and is limited by, the degree to which the target employees' right of self-organization depends on their "ability ... to learn the advantages of self-organization from others." 351 U.S. at 113, 76 S.Ct. at 685. However, Babcock 's discussion of the derivative nature of the section 7 rights exercised by nonemployee organizers does not focus on derivativeness for its own sake, but rather as a means of addressing the broader, essential issue: the degree to which trespass is necessary to exercise section 7 rights.6 There is no assertion in Babcock that derivatively exercised section 7 rights are inherently weaker than rights based on activities by nonemployees who have no organizational purpose, and Lechmere 's parenthetical reference to "derivatively" exercised section 7 rights in recounting Babcock 's analysis does not purport to expand on Babcock 's reasoning. See Lechmere, 502 U.S. at 532, 112 S.Ct. at 845. Indeed, the so-called "derivative" rights obviously are stronger than those lacking a connection to the employees, for, as noted in Sears, "the right to organize is at the very core of the purpose for which the NLRA was enacted ... [whereas] [a]rea standards picketing ... has only recently been recognized as a Sec. 7 right." 436 U.S. at 206 n. 42, 98 S.Ct. at 1762 n. 42. We find, as have the other circuits that have considered the issue, that Lechmere does not create a distinction between the strengths of derivative and nonderivative section 7 rights.7
30
In effect, the Court in Babcock made a once-and-for-all determination that, in the absence of an inaccessibility showing, the locus of accommodation for cases involving trespass by nonemployee union adherents will always fall in the range favoring denial of access, and Lechmere reaffirmed that determination.8 And although Babcock and Lechmere were organizational cases, the reasoning therein is equally applicable in any situation where the exercise of a section 7 right requires communication of a message to a target group. Cf. Sparks Nugget, Inc. v. NLRB, 968 F.2d 991, 997-98 (9th Cir.1992) (The Ninth Circuit interpreted Lechmere as requiring application of the basic rule allowing an employer to prevent nonemployee trespass, not only in cases of organizational communication directed at an employer's employees, but also in cases where "the pickets and handbills [a]re aimed at the general public."). In all such target-audience situations, Babcock and Lechmere indicate that the degree to which the exercise of the asserted section 7 right depends on trespassory access to an employer's property--i.e., the degree to which the target audience is otherwise inaccessible--should be the critical consideration in the accommodation analysis; and the locus of accommodation should always fall in the denial-of-access range if there has been no showing that the target audience is not reasonably reachable through nontrespassory means of communication. The Board did not err in applying this analysis in the present cases.
IV. THE INACCESSIBILITY EXCEPTION
31
In light of our conclusion that Babcock, as reaffirmed in Lechmere, applies to the present cases, there is no reason to think that Lechmere 's emphasis on the narrowness of the inaccessibility exception to the general rule should not be fully applicable as well. Indeed, given that the organizational activity at issue in Lechmere itself appears to represent a stronger section 7 interest than the area standards and consumer boycott activities at issue here, it would be perverse to find that the threshold for the inaccessibility exception should be lower in this case than in Lechmere.9
32
In addition, the Board's statement in Jean Country that "generally it will be the exceptional case where the use of [forms of the mass media] will be feasible alternatives to direct contact," 291 N.L.R.B. at 13, is clearly at odds with Lechmere 's discussion of the inaccessibility exception. Although the Court in Lechmere declined to address the Board's specific finding that the union's local newspaper advertising was not reasonably effective in that case,10 the Court did note that advertising may constitute "reasonably effective" communication for purposes of the inaccessibility exception, and stressed that the heavy burden of establishing inaccessibility rests solely on the union. Lechmere, 502 U.S. at 540, 112 S.Ct. at 849-50. Further, the Court declared that the union's burden is "not satisfied by mere conjecture or the expression of doubts concerning the effectiveness of nontrespassory means of communication;" rather, the union must show that the target audience is "isolated from the ordinary flow of information that characterizes our society." Id.
33
The Court's discussion clearly does not countenance a rule that assumes the ineffectiveness of paid mass media advertising and obviates the need for the union to meet its burden of establishing that "unique obstacles" render the target audience isolated from nontrespassory methods of communication. Thus, in Oakland Mall II, the Board properly reconsidered its discussion of mass media communication in Jean Country, and violated no right of petitioner's when it adopted a rule that comports with Lechmere by requiring a "show[ing] that the use of the mass media ... would not be a reasonable alternative means for the Union to communicate its message." See Oakland Mall II, 316 N.L.R.B. at 1163.
V. CONCLUSION
34
For the reasons set forth above, the petitions for review are denied.
35
So ordered.
1
Section 7 provides that:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection....
29 U.S.C. Sec. 157 (1988). Section 8(a)(1) of the NLRA provides that "[i]t shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section ." 29 U.S.C. Sec. 158(a)(1) (1988).
2
See 29 U.S.C. Sec. 157 (1988); see also Lechmere, 502 U.S. at 532-33, 112 S.Ct. at 845-46 (The Court observed that the NLRA, by its terms, directly confers rights only on employees, but that nonemployee organizers may, in some limited circumstances, "derivatively" exercise the section 7 rights of the employees they seek to organize.)
3
The Board in Jean Country stated:
[I]n all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the private property right if access should be granted. We view the consideration of the availability of reasonably effective alternative means as especially significant in this balancing process.
291
N.L.R.B. at 14
4
On remand, the Board did not address the issue of whether Oakland Mall, Ltd. ("Oakland Mall") had violated the NLRA, because Oakland Mall did not file exceptions to the ALJ's finding that it violated the Act. Oakland Mall II, 316 N.L.R.B. at 1160 n. 7
5
Compare Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945) (The Court approved the Board's determination that an employer barring its employees from distributing union literature on its property generally places an unreasonable impediment on the freedom of communication essential to the exercise of its employees' right to self-organization.) and Babcock, 351 U.S. at 113, 76 S.Ct. at 685 (Where the Board had concluded that it was necessary to allow nonemployee union organizers to distribute union literature on an employer's property, the Court affirmed the vitality of Republic Aviation 's holding as to restrictions imposed by an employer on its employees, but chided the Board for "fail[ing] to make a distinction between rules of law applicable to employees and those applicable to nonemployees.") with Sears, 436 U.S. at 206 n. 42, 98 S.Ct. at 1762 n. 42 ("[S]everal factors make the argument for protection of trespassory area-standards picketing as a category of conduct less compelling than that for trespassory organizational solicitation.... [T]he right to organize is at the very core of the purpose for which the NLRA was enacted.... [whereas] [a]rea-standards picketing ... has only recently been recognized as a Sec. 7 right.") and Central Hardware, 407 U.S. at 545, 92 S.Ct. at 2242 ("[T]he principle of accommodation announced in Babcock is limited to labor organization campaigns, and the 'yielding' of property rights it may require is both temporary and minimal."). See also NLRB v. Great Scot, Inc., 39 F.3d 678, 682 (6th Cir.1994) (Upon reviewing Supreme Court law, the Sixth Circuit observed that employee organizational rights are at the "core" of section 7's ambit of protection, that, even within the context of organizational activities, there is a distinction between the rights afforded employees and nonemployees, and that "[n]on-employee area-standards picketing is even farther removed from the core concerns of Sec. 7.")
6
The Babcock Court observed that, because employees' exercise of their section 7 right of self-organization depends on communication with organizers, the organizers' interest in trespassory access to an employer's property becomes paramount when such access is the only reasonably available means of communicating with the employees about organizing; and in that situation, "the employer must allow the union to approach his employees on his property." See 351 U.S. at 113, 76 S.Ct. at 685
7
For example, in Metropolitan Dist. Council of Phila. and Vicinity United Bhd. of Carpenters and Joiners of Am. v. NLRB, 68 F.3d 71 (3d Cir.1995), the court denied review in a case in which the petitioner union asserted essentially the same derivative/nonderivative rights argument presented by petitioners here. The Third Circuit rejected the derivative/nonderivative rights distinction, finding no reason why the property-right-favoring accommodation reached in Lechmere "would be any less compelling in a case in which a union was engaged in area standards handbilling than in a case where the union was engaged in direct organizational activity." 68 F.3d at 74-75. See also NLRB v. Great Scot, Inc., where the Sixth Circuit cited Lechmere for the proposition that "non-employees do have a 'derivative right' to engage in organizational activities," but clearly identified consumer-targeted activity in direct exercise of section 7 rights as being lower on the section 7 totem pole than nonemployee organizational activity, despite the latter's derivative nature. 39 F.3d at 682
8
See Lechmere, 502 U.S. at 538, 112 S.Ct. at 848 ("To say that our cases require accommodation between employees' and employers' rights is a true but incomplete statement, for the cases also go far in establishing the locus of that accommodation where nonemployee organizing is at issue.... It is only where ... access [to employees] is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees' and employers' rights....")
9
In Sparks Nugget, the Ninth Circuit went further by finding that the inaccessibility exception does not apply at all in situations where customers, and not employees, are the target audience; alternatively, the court stated that, even if the exception were applicable, Lechmere would require a finding that the intended audience is presumptively not inaccessible "because the targets of the union protest do not reside on the employer's property." 968 F.2d at 997-98 (internal quotation and alteration omitted)
10
The Court found no occasion to address the merits of the Board's conclusion that the local newspaper advertising used by the union organizers was not reasonably effective, because the Court found that "other alternative means of communication were readily available" to the union. 502 U.S. at 540, 112 S.Ct. at 849-50
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1922
In re: FRANKLIN C. SMITH,
Petitioner.
On Petition for Writ of Mandamus.
Submitted: December 16, 2019 Decided: January 3, 2020
Before KING and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Petition denied by unpublished per curiam opinion.
Franklin C. Smith, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Franklin C. Smith petitions for a writ of mandamus concerning receipt of his
disability benefits. We conclude that Smith is not entitled to mandamus relief.
Mandamus relief is a drastic remedy and should be used only in extraordinary
circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); United States v.
Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). Further, mandamus relief is available
only when the petitioner has a clear right to the relief sought. In re Murphy-Brown, LLC,
907 F.3d 788, 795 (4th Cir. 2018).
The relief sought by Smith is not available by way of mandamus. Accordingly, we
deny the petition for writ of mandamus. 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.
PETITION DENIED
2
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53 Cal.App.3d 215 (1975)
125 Cal. Rptr. 687
RALPH J. GEFFEN, Plaintiff, Cross-defendant and Appellant,
v.
RUSSELL J. MOSS, Defendant, Cross-complainant and Respondent.
Docket No. 46079.
Court of Appeals of California, Second District, Division Three.
November 24, 1975.
*217 COUNSEL
Louis R. Stein, for Plaintiff, Cross-defendant and Appellant.
Russell J. Moss, in pro. per., for Defendant, Cross-complainant and Respondent.
OPINION
ALLPORT, Acting P.J.
Ralph J. Geffen appeals from a judgment entered in favor of Russell J. Moss in an action for damages for breach of contract. It appears without conflict that, because of an appointment as a United States magistrate precluding him from continuing the private practice of law, attorney Geffen entered into a written agreement with attorney Moss whereby Geffen agreed to sell and Moss to buy "the physical assets, files and work in process" of Geffen's law practice. The *218 total purchase price was $27,500. Fifteen thousand dollars was paid in accordance with the terms of the contract. The action seeks to recover an unpaid balance of $12,500 plus attorney's fees and costs.
The Contract
The pertinent provisions of the contract are as follows:
"RALPH J. GEFFEN, hereinafter designated as `Geffen,' and RUSSELL J. Moss, hereinafter designated as `Moss,' agree as follows:
"Geffen hereby sells to Moss the physical assets, files and work in process of the law practice of Geffen located in the City of Norwalk, except as hereinafter specified, on the following terms and conditions:
".... .... .... .... ...
"The purchase shall include:
"A. Entire law library, excepting not to exceed ten (10) books to be agreed upon between the parties, and Martindale-Hubbell (1969);
"B. Any and all furniture, fixtures, furnishings and equipment, excepting not to exceed six (6) items of decor (not major items) selected by Geffen; and
"C. Subject to approval thereof by the respective clients, all cases and legal matters now pending in the above law practice except personal injury or wrongful death cases and the following legal matters:
".... .... .... .... ...
"Geffen will sublet to Moss, at the same rental (Three Hundred Dollars [$300.00] per month) and upon the same terms and conditions as are provided in the Master Lease held by him, Suite 7 (six [6] rooms) now occupied by Geffen at 11850 East Firestone Boulevard, Norwalk, California, for a term of three (3) years. Upon full payment of the purchase price, Geffen will assign to Moss said Master Lease and will assist in procuring a further lease in Moss' name alone as lessee thereafter upon request of Moss.
*219 ".... .... .... .... ...
"Geffen expresses an intention to exert his influence for the continued welfare of the practice and to encourage present and former clients to utilize the legal services of the office in the future.
VIII
"Geffen agrees that he will not, so long as Moss is not in default of any obligation to Geffen hereunder, maintain any office for the practice of law within ten (10) miles of the City of Norwalk nor hold himself out as in practice in said area for a period of six (6) years following the execution of this Agreement without the consent of Moss.
".... .... .... .... ...
"All fees collected for work done by Moss shall belong to Moss; and all fees collected for work in process, as to which the fee is contingent or agreed to be collected only after the completion of the work, or only in stages (and not collected or due on January 1, 1971), shall belong to Moss.
".... .... .... .... ...
"Appropriate and ethical announcements may be sent out by Moss of his succession to the practice, at his expense; and Geffen will cooperate in the wording and mailing list for such announcements.
".... .... .... .... ...
"of the total purchase price, Fifteen Thousand Dollars Seven Hundred Fifty Dollars ($15,000.00) is attributable to the fair value of physical assets sold."
Findings of Fact
The pertinent findings of fact are as follows:
"3. That it was the intention of plaintiff, an Attorney at Law, to sell to the defendant, also an Attorney at Law, his, the plaintiff's practice of law, insofar as the same could be accomplished within the limits and *220 confines of the canons of ethics and it was the intention of the defendant Attorney at Law to purchase the same from plaintiff.
"4. That the agreement between plaintiff and defendant executed December 1, 1970, provided for the sale of all physical assets of the Law Offices of Plaintiff Attorney, which consisted generally of a Library, Index of former and present clients, office equipment, and a three-year lease which was subsequently assigned to defendant and which provided a substantial benefit by way of rental less than prevailing rates in the community, which benefit was $8,500.00. Custody of all files of completed and pending business were transferred to defendant. The Court further finds the value of all of said assets other than the lease to be in the approximate sum of $6,500.00, and the total value of all physical assets, including the lease to be the sum of $15,000.00.
".... .... .... .... ...
"6. That the contract, Exhibit 3 in evidence, omits any reference to good will and precludes any payment to the plaintiff based on pending or future business.
"7. That the plaintiff did not and would not break down the total sales price as to value assigned to any particular item.
".... .... .... .... ...
"9. That the plaintiff per the terms of the contract expressed his intention to exert his influence for the continued welfare of the practice and to encourage present and former clients to utilize the legal services of the law office in the future; and that pursuant thereto he did thereafter with the aid of the defendant prepare and circulate the letter of announcement, Exhibit 9.
".... .... .... .... ...
"13. That both plaintiff and defendant considered the expectation of future business from present and former clients as a principal motivating factor in this sale transaction.
"14. That without the expectation and hope of future patronage by existing and former clients of the office, the value of the law office would not exceed $15,000.00.
*221 "15. That the plaintiff advised the defendant that he could make no promise or guarantee of continued patronage by existing and former clients.
"16. That the attempted sale of future patronage by existing and former clients of the office constituted a sale of the good will of the law practice.
"17. That the expected business from former and current clients of the plaintiff did not materialize and the defendant has utilized that opportunity; and the plaintiff has received the fair value for the physical assets transferred pursuant to the agreement."
Conclusions of Law
The pertinent conclusions of law are as follows:
"1. That the plaintiff's attempt to sell the expectation of future patronage of his former and current clients and to encourage them to patronize the defendant, and the defendant's attempt to purchase the future patronage of the plaintiff's former and current clients and the recommendation of himself by the plaintiff to those former and current clients constitutes an attempt to buy and sell the good will of a law practice.
"2. That the sale or attempted sale of the good will of the law practice is contrary to public policy and against the spirit and intent of Rules 2 and 3 of Section 6076 of the Business and Professions Code, `The State Bar Act' and of the ABA Canons of Ethics No. 4, EC 4-6, prohibiting the sale of a law practice as a going business.
"3. That both plaintiff and defendant are in pari delicto and the Court will leave the parties where it has found them as to the attempted sale of good will of the law practice.
"4. That neither plaintiff nor defendant has been unjustly enriched at the expense of the other.
"5. That judgment should be for the defendant on the complaint together with defendant's costs and attorney's fees in the sum of $500.00."
*222 Contentions
It is contended on appeal that the trial court erred in utilizing extrinsic parol and other evidence to alter the express terms of the written contract and in then construing the contract, as altered, to be contrary to public policy and unenforceable.
The argument advanced is that the agreement, in clear, plain and unambiguous language, provided for the purchase and sale of the physical assets, assignment of the leasehold and for retention by the buyer of any legal fees generated from the work in process and did not purport to dispose of good will of a law practice. It is urged that the language employed by the contracting parties in drafting the agreement did not warrant the resort to extrinsic evidence nor require the result reached by the trial court.
Discussion
At the outset we note that illegality of the agreement was raised by way of an affirmative defense in the answer. The sufficiency of the allegation of illegality was not challenged in the lower court. (1a) The threshold question presented for consideration by this court is whether the resort to extrinsic evidence as to the intention of the parties on the issue of illegality was proper. The record clearly indicates that the trial court did admit and utilize such evidence in resolving this issue against Geffen. In the memorandum of intended decision we find the following: "Although the contract, Exhibit 3 in evidence, is so drawn as to omit any reference to `good will', precludes any payment to the plaintiff based on pending or future business, and although the evidence establishes that the plaintiff at no time did or would break down the total sales price as to the value assigned to any particular item, and although the contract provision, Section 18, providing $15,000.00 instead of $13,750.00 as attributable to the fair value of physical assets was prompted by way of modification at defendant's request, it is clearly apparent to this court, based on the total evidence presented, that each party considered the expectation of future business from present clients and former clients as a principal motivating factor in this transaction. This concern is evidenced to some extent by paragraph 7 of the contract referring to plaintiff's intention to exert his influence for the continued welfare of the practice and to encourage present and former clients to utilize the legal services of the office in the future. This factor of the sale is further evidenced and supplemented by the letter of announcement, Exhibit 9."[1]
*223 (2) While it is true that a written instrument may not be changed, altered, modified, detracted from or added to in any particular whatsoever except by another instrument in writing, where parol or other extrinsic evidence is consistent with, explains and does not vary the written contract, it may be admitted. (Shimmon v. Moore, 104 Cal. App.2d 554, 559 [232 P.2d 22].) (3) Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co., 69 Cal.2d 33 [69 Cal. Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373], disposes of the argument advanced in the instant case that the intent of the parties must be determined "from the four corners of the agreement." In that case it was said at page 37:
"The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 520-521 [67 Cal. Rptr. 761, 439 P.2d 889]; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal. Rptr. 767, 402 P.2d 839]; Hulse v. Juillard Fancy Foods Co. (1964) 61 Cal.2d 571, 573 [39 Cal. Rptr. 529, 394 P.2d 65]; Nofziger v. Holman (1964) 61 Cal.2d 526, 528 [39 Cal. Rptr. 384, 393 P.2d 696]; Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 315 [38 Cal. Rptr. 505, 392 P.2d 265]; Imbach v. Schultz (1962) 58 Cal.2d 858, 860 [27 Cal. Rptr. 160, 377 P.2d 272]; Reid v. Overland Machined Products (1961) 55 Cal.2d 203, 210 [10 Cal. Rptr. 819, 359 P.2d 251].)
"A rule that would limit the determination of the meaning of a written instrument to its four-corners merely because it seems to the court to be clear and unambiguous, would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained."
We agree, however, that this court is not bound by the trial court's interpretation of the contract. (Estate of Dodge, 6 Cal.3d 311, 318 [98 *224 Cal. Rptr. 801, 491 P.2d 385]; Parsons v. Bristol Development Co., 62 Cal.2d 861, 865-866 [44 Cal. Rptr. 767, 402 P.2d 839].) (1b) We now proceed to make an independent examination of the agreement as to its meaning to determine whether the trial court's interpretation is so erroneous that it must be reversed.
The preamble states that the subject matter of the sale is the physical assets, files and work in process "of the law practice." In paragraph III the subject matter is more specifically defined as consisting of a law library, furniture, fixtures, furnishings and "all cases and legal matters now pending in the above law practice [with certain exceptions]...." Geffen then agrees to sublet the premises and upon payment of the purchase price to assign the lease. Geffen expresses an intention to exert his influence for the "continued" welfare of the practice and to encourage present and former clients to "utilize the legal services of the office in the future." He agrees not to compete with Moss in the practice. Noting that the fair value of the physical assets, defined as library, furniture, fixtures, furnishings and equipment is established in the contract to be $15,000 and that all fees earned for work done by Moss or collected for work in progress belong to Moss, we immediately wonder what the additional consideration, payable in monthly installments totaling $12,500 covers. It does not appear to be for assignment of the lease since that act is contingent upon and to be made after full payment of the total purchase price of $27,500.
In light of the applicable law we conclude that these provisions of the agreement, in view of the transaction contemplated thereby, clearly support the trial court's action in utilizing parol and extrinsic evidence to determine the intent of the parties, although we are of the opinion it would not have been unreasonable for that court to conclude from the terms of the contract itself that a sale of future patronage of existing and former clients was contemplated without resort to extrinsic evidence. What else was being sold for the $12,500 now being sought by Geffen in this action?
No attack is made upon the sufficiency of the evidence to support the finding that the parties "considered the expectation of future business from present and former clients as a principal motivating factor in this sale transaction" and that without that expectation the value of the law office would not exceed $15,000. Under the circumstances we must presume there was evidentiary support for these and the other findings. (Brown v. World Church, 272 Cal. App.2d 684, 690 [77 Cal. Rptr. 669, 45 A.L.R.3d 622].)
*225 (4) We turn now to the validity of the trial court's conclusion that the attempt to sell the expectation of future patronage of former and current clients was an attempt to buy and sell the good will of a law practice as a going business. In this respect we have read and considered the rationale of that court as expressed in its memorandum of intended decision on the issue and, while not binding on this court (Dairyman's Cooperative Creamery Assn. v. Leipold, 34 Cal. App.3d 184, 188 [109 Cal. Rptr. 753]), we adopt such as a part of this opinion by reference.[2]
Plaintiff argues that the conclusion of illegality is neither sanctioned by law nor compelled by the facts of this case. True, we have been referred to no specific statute nor any California case law compelling us to hold that a purported sale of good will of a law practice is contrary to public policy and therefore illegal. We are, however, by this argument, expected to overlook the policy expressed in rules 2 and 3 of the Rules of Professional Conduct of the State Bar of California and approved by the Supreme Court pursuant to Business and Professions Code section 6076 prohibiting solicitation or obtaining of professional employment by any means of communication. Noting, as found by the trial court, that two able experienced attorneys drew the agreement to sell only insofar as this could be accomplished "within the limits and confines of the canons of ethics," they themselves acknowledge some applicable limitation on the scope of the sale. We agree that, insofar as the parties purport to sell the physical assets and to assign the leasehold and dispose of pending office *226 matters, the agreement does not violate public policy as expressed in the canons of legal ethics. However, it appears obvious to us that both parties, recognizing a limitation against the sale of good will, nevertheless attempted to avoid a proscription against such by deliberately failing to mention good will as such in the agreement. We cannot say that the trial court's resolution of the matter was unreasonable. The attempted sale of the expectation of future patronage by former and current clients of a law office coupled with an agreement to encourage said clients to continue to patronize the purchaser of the physical assets of the office, under the facts of this case, may well be said to constitute an attempt to buy and sell the good will of a law practice as a going business, contrary to public policy, and that the portion of the agreement purporting to so do is invalid and unenforceable. The following language found in Linnick v. State Bar, 62 Cal.2d 17, 21 [41 Cal. Rptr. 1, 396 P.2d 33], although involving the activities of a lay person and an attorney, indicates the existence of applicable ethical considerations: "Rule 3 of the Rules of Professional Conduct, however, prohibits an attorney from remunerating another for either `soliciting' or `obtaining' employment for him. Whether or not a lay intermediary solicits the business referred, he may not keep the best interests of the clients paramount when he profits from his referrals. He is likely to refer claimants, not to the most competent attorney, but to the one who is compensating him. (See Hildebrand v. State Bar, 36 Cal.2d 504, 521, 523 [225 P.2d 508] [concurring opinion by Traynor, J.]; Guides to Professional Conduct for the New California Practitioner, 36 State Bar J. 1013, 1020-1021; Ambulance Chasing and Related Evils, 7 State Bar J. 22, 23.) Hence, although there is no evidence that Williams solicited strangers, or that he was paid for specific referrals, the relationship between Williams and petitioner created the risk that rule 3 is designed to prevent."
Even though such is not deemed contrary to public policy, the following language in Lyon v. Lyon, 246 Cal. App.2d 519, 524, 526 [54 Cal. Rptr. 829], renders an attempted sale of good will of a law practice suspect: "The nature of a professional partnership for the practice of law, the reputation of which depends on the skill, training and experience of each individual member, and the personal and confidential relationship existing between each such member and the client, places such a partnership in a class apart from other business and professional partnerships. The legal profession stands in a peculiar relation to the public and the relationship existing between the members of the profession and those who seek its services cannot be likened to the relationship of a merchant to his customer. (Barton v. State Bar, 209 Cal. *227 677, 682 [289 P. 818].) Thus, our research has brought to light no case in this jurisdiction in which an allowance was made to a partner for goodwill upon the dissolution of a partnership created for the practice of law."
(5) Geffen argues that, if the contract is held to be illegal, the award of attorney's fees in favor of Moss as the prevailing party would be improper. We must agree. In paragraph IB the agreement provides for the payment of the $12,500 in installments and, in the event of default and the filing of suit to enforce payment, for attorney's fees to Geffen. Civil Code section 1717 renders the obligation to pay attorney's fees mutual. However, since we have decided that the obligation to pay the $12,500 is contrary to public policy and unenforceable the right to attorney's fees created by this provision never matured.
The judgment is modified by striking therefrom that portion awarding defendant attorney's fees. In all other respects the judgment is affirmed.
Cobey, J., and Potter, J., concurred.
A petition for a rehearing was denied December 16, 1975, and appellant's petition for a hearing by the Supreme Court was denied February 11, 1976.
NOTES
[1] After advising the clients of his leaving the practice Geffen's letter stated:
"All of my files and records remain intact at the above Norwalk address. In order to provide continuity in the handling of the legal affairs of the clients of my office, I was fortunate in being able to arrange for an experienced and competent attorney, Russell J. Moss, to take over at my location.
Mr. Moss, who practiced in the Inglewood-Hawthorne area for the past sixteen years, has agreed to complete all legal matters in the office, subject to the approval of the clients involved. He has custody of all files and records of the office, including original wills which may have been drawn for you by this office.
If you have any questions or problems regarding your legal affairs. Mr. Moss will be pleased to assist you just as I would if I were available."
[2] We refer specifically to the following portion of the memorandum: "`Good will' as defined by the Business & Profession Code 14100 as being the expectation of future public patronage is a valid definition applicable to this case. Each party entered into this sale contract with the expectation and hope of future patronage by existing and former clients of the office. It is true that the plaintiff advised the defendant that no promise or guarantee could be made as to continued patronage, but nevertheless, each party considered that expectation as a principal element or factor of the sale. Without such a principal factor the reasonable value of the law office would not exceed $15,000.00. To the extent that the plaintiff indirectly attempted to sell that expectation of future patronage and to encourage his former and current clients to patronize the defendant, and to the extent that the defendant sought to purchase that expectation of future patronage and the recommendation of himself by the plaintiff to the plaintiff's former and current clients, each party participated in an attempt to buy and sell good will of a law practice, which in this court's opinion is contrary to the spirit and intent of Rule 2 and 3 of the State Bar Act, and therefore is contrary to public policy. There is no question but that an existing law practice may have `good will' as an asset which under certain circumstances must be evaluated for a particular reason, as in a dissolution action between husband and wife, but the attempted sale of `good will' of a practice by one lawyer to another involves an altogether different concept with altogether different implications and consequences. Those implications and consequences are well stated in the defendant's citation of the May 1973 issue of the Practical Lawyer, Vol. 19, Number 5, Page 63, in the article entitled `The Sale of a Law Practice.'"
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755 F.Supp.2d 88 (2010)
Ava RAMEY, Plaintiff,
v.
U.S. MARSHALS SERVICE, Defendant.
Case No. 1:07-CV-01391.
United States District Court, District of Columbia.
December 13, 2010.
*91 Phoebe Leslie Deak, Law Offices of Leslie Deak, Washington, DC, for Plaintiff.
Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
OPINION
[Resolving Doc. Nos. 30, 31, 41]
JAMES S. GWIN, District Judge:
In this Privacy Act and retaliation case over protected speech and union activity, Plaintiff Ava Ramey, a former Court Security Officer and local union president, brings claims against Defendant U.S. Marshals Service. Pending are cross motions for summary judgment. [Doc. 30; Doc. 31.] For the following reasons, the Court DENIES Plaintiff's motion for partial summary judgment and GRANTS the Defendant's motion for summary judgment on all Plaintiff's claims.[1]
I. Background
In exercising its statutory responsibility to "provide for the security of" the federal courts, 28 U.S.C. § 566(a), Defendant U.S. Marshals Service contracts with private companies to employ Court Security Officers ("CSOs"). CSOs provide on-the-ground security at the courthousesmonitoring the doors, patrolling the grounds, and screening visitors, for example. For CSOs in the "Twelfth Circuit", which includes the District Court and the Superior Court in the District of Columbia, the U.S. Marshals Service contracts with MVM Inc, a private security staffing company. [Doc. 31 at 2.]
MVM employed Plaintiff Ava Ramey as a CSO under the Twelfth Circuit Contract until it fired her in 2006 after the U.S. Marshals determined that she had violated security protocol and performance standards. The U.S. Marshals ordered an investigation into Ramey after learning she had made an unsolicited visit to the Chief Judge of the Superior Court during one of his weekly open-chambers sessions. [Doc. 30 at 5.] Specifically, the Marshals asked MVM to investigate whether Ramey had improperly bypassed her reporting chain of command in meeting directly with the Chief Judge and also whether she had left her post unguarded to make the visit, a violation of security protocol. [Doc. 30 at 17-18.]
*92 As part of its investigation, MVM interviewed Plaintiff Ramey. [Doc. 30 at 6.] Ramey admitted she visited the Chief Judge and recounted the conversation as follows:
The first question that I told [the Chief Judge] that was a concern for me was that some judges did not want you to wear your issued weapon. The second question was that some judges wanted you to remove the weapon and equipment when walking them to the subway. The third question was that if [a CSO] made an arrest inside DC Superior Court, the only place to take them is the control room where all of the cameras are for the building and that would compromise security.
[Doc. 31-18 at 2; Doc. 30-8 at 4.] Ramey also told the investigator that she visited the Chief Judge during her scheduled morning break, shortly after 10:00 am. [Doc. 36 at 12.] Security camera video, however, showed Ramey leaving her post around 9:00 am. [Doc. 30-2 at 63.]
MVM ultimately concluded that Ramey: (1) was not on an authorized break when she visited the Chief Judge and had left her post unattended; (2) failed to follow the chain of command in speaking directly to the Chief Judge; and (3) had not been candid with MVM during its investigation. [Doc. 36 at 18; Doc. 30-2 at 57.] MVM submitted these findings to the U.S. Marshals, along with a disciplinary recommendation that Plaintiff be suspended for ten days. [Doc. 36 at 18.] However, the U.S. Marshals Service, which retained the ultimate authority to make suitability determinations, disagreed with MVM's recommendation. [Doc. 36 at 19.] Given the "serious nature" of Ramey's breach combined with her "previous documented infractions", the U.S. Marshals directed MVM to remove Plaintiff Ramey from performing services under the Twelfth Circuit Contract. [Doc. 36 at 19.] After Ramey refused a different assignment, MVM terminated her. [Doc. 36 at 3.]
Against this backdrop, Plaintiff brings three counts against the U.S. Marshals Service. First, she alleges that the Defendant directed MVM to remove her from the Twelfth Circuit Contract in violation of her First Amendment rights to speech and assembly. [Doc. 1 at 12-13.] Second, she alleges that the Defendant retaliated against her for whistleblowing in violation of the False Claims Act, 31 U.S.C § 3730(h). [Doc. 1 at 13-14.] And third, she alleges that the Defendant's directive to remove her from the Contract was based on inaccurate information and an incomplete investigation, a violation of the Privacy Act, 5 U.S.C. § 552a(e). [Doc. 1 at 14-15.]
II. Legal Standard
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show 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); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).
Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or depositions, answers to *93 interrogatories, and admissions on file, `designate' specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal citations omitted).
Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987).
"Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment." Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (citing Fed.R.Civ.P. 56(e)) (emphasis in original).
III. Discussion
A. Plaintiff's First Amendment Claims
Plaintiff Ramey says her removal from the Twelfth Circuit Contract occurred in retaliation for exercises of her First Amendment rights to speech and assembly. She cites three events that prompted the U.S. Marshals to retaliate against her: (1) she spoke to the Chief Judge on behalf of herself and other CSOs as their union representative about matters affecting court security; (2) she filed grievances and unfair labor practice charges in her capacity as a union president; and (3) she accused MVM of wasting government funds. Responding, the Defendant says it is entitled to summary judgment because Plaintiff's conversation with the Chief Judge was not protected under the First Amendment and also because no sufficient evidence shows that Plaintiff's prior union, grievance, and whistleblowing activity were factors in its decision to remove her from the Contract for violating security protocol. [Doc. 30 at 38.]
"The government needs to be free to terminate both employees and contractors for poor performance." Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). However, "[t]he First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern." Id. at 675, 116 S.Ct. 2342 (emphasis in original). Mindful of the government's dual roles as a sovereign and employer, for a government employee's or contractor's speech to have First Amendment protection, the employee or contractor must have (1) spoken as a citizen and (2) addressed matters of public concern. Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007). Courts impose these same threshold requirements to First Amendment retaliation suits brought by "hybrid" government contractorsprivate employees of private companies with public contracts. See, e.g., Castro v. County of Nassau, 739 F.Supp.2d 153, 160-61, 2010 WL 3713185, at *2 (E.D.N.Y. Sept. 13, 2010) (applying standard First Amendment retaliation analysis to a private security guard employed by a private security *94 staffing company contracted to work at a public school).
In determining whether a government employee spoke as a citizen on a public issue, the court's analysis "must take into account the content, form, and context of the employee's speech." LeFande v. District of Columbia, 613 F.3d 1155, 1159 (D.C.Cir.2010)(internal quotation omitted). "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Whether a government employee spoke as a citizen on a public issue is a question of law for the court to decide. Wilburn, 480 F.3d at 1149.
In this case, there is no genuine dispute that Ramey's statements to the Chief Judge were made in the course of her duties as a CSO. The content of Ramey's speechquestions about CSOs carrying weapons and the detention of suspects in the courthouse control roomrelates to her job. This is true even though Ramey had no formal dutyindeed, it was a violation of MVM's chain-of-command protocolto speak with the Chief Judge. As the D.C. Circuit has recognized, "it would be incongruous to interpret Garcetti, a case concerned with allowing the government to control its employees within their jobs, as giving broader protections to disobedient employees who decide they know better than their bosses how to perform their duties." Thompson v. District of Columbia, 530 F.3d 914, 918 (D.C.Cir.2008). As to the context of the conversation, Plaintiff, in her full uniform, approached the Chief Judge during his weekly open-chambers session (an opportunity for court employees, not union officials, to discuss matters relating to the operation of the courthouse). Thus, the Court finds that in light of Plaintiff's own admissions regarding the content and context of her conversation with the Chief Judge, the speech at issue here "owe[d] its existence to [her] professional responsibilities," Garcetti, 547 U.S. at 411, 126 S.Ct. 1951, and is not protected by the First Amendment. Accordingly, the Court does not reach the remaining factors to establish a retaliation claim. See Pearson v. District of Columbia, 644 F.Supp.2d 23, 42 (D.D.C.2009) ("Where an employee is simply performing his or her job duties . . . the Court need notand should notproceed to balance the competing interests.").
Recognizing this weakness, Plaintiff attempts to salvage her claim by asserting that her past union, grievance, and whistleblowing activities create an independent basis for her suit apart from her visit with the Chief Judge. In support, Plaintiff says that "[t]he president of a union is a public position" and that her "repeated and regular union activity constitutes activity protected by the First Amendment." [Doc. 37-1 at 24, 26.] Responding, the Defendant says Plaintiff's past protected activity was a nonfactor in its decision to remove her from the Twelfth Circuit Contract. Instead, Defendant continues, it relied on MVM's investigation that determined Plaintiff had violated security protocol and performance standards. [Doc. 30 at 37.]
In order to prevail on a First Amendment retaliation claim, a government employee must demonstrate that his or her protected activity was a substantial or motivating factor in prompting the retaliatory act. Wilburn, 480 F.3d at 1149. Although causation is normally a question of fact for the jury, a plaintiff opposing summary judgment must show that there is evidence "from which a reasonable jury could find the required causal link between *95 the protected [activity] . . . and the allegedly retaliatory actions." Williams v. Johnson, 701 F.Supp.2d 1, 17 (D.D.C.2010).
In this case, Plaintiff has failed to produce evidence that would enable a jury to conclude that there was a causal connection between her union, grievance, and whistleblower activity and her removal from the Twelfth Circuit Contract. To be sure, the record suggests that Ramey was an active union representative, regularly filing grievances and unfair labor practices charges against MVM "that cost the company significant amounts of money." [Doc. 37-1 at 23.] Yet Ramey does not allege that MVM, the entity that conducted the investigation, retaliated against herindeed, MVM recommended that Ramey be suspended, not removed. In order to prevail on her First Amendment claim, Ramey must demonstrate not just that she engaged in protected speech or assembly but that it was a "substantial" or "motivating" factor in the U.S. Marshals's decision to remove her from the Contract. Relying on the report of investigation, the Marshals concluded Ramey abandoned her post and violated chain-of-command protocol and that "these violations alone warranted [her] removal." [Doc. 30 at 34.] Thus, because the record does not show that the U.S. Marshals considered Ramey's union, grievance, and whistleblowing activity when they ordered her removal from the Contract, the Court grants summary judgment to the Defendant on Plaintiff's First Amendment retaliation claim.
B. Plaintiff's False Claims Act Claim
In Count II of her complaint, Plaintiff Ramey says that the Defendant U.S. Marshals Service directed MVM to remove her from the Twelfth Circuit Contract because she engaged in whistleblowing activity, a violation of the False Claims Act, 31 U.S.C § 3730(h). [Doc. 1 at 13-14.] In its motion for summary judgment, Defendant says Ramey's False Claims Act cause must fail because Ramey did not properly exhaust administrative remedies under the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111, that are a jurisdictional prerequisite to suit in federal court, [Doc. 30 at 39.] See Harris v. Bodman, 538 F.Supp.2d 78, 82 (D.D.C.2008). In her opposition, Ramey does not once mention the False Claims Act, the Civil Service Reform Act, or her whistleblowing activity. [Doc. 36.]
Accordingly, because the Defendant informed the Court of the basis for its motion and Plaintiff failed to come forward with facts or law showing that there is a genuine issue for trial, the Court grants summary judgment to the Defendant on Plaintiff Ramey's False Claims Act claim.
C. Plaintiff's Privacy Act Claim
In Count III of her Complaint, Plaintiff Ramey says that the U.S. Marshals Service violated Section 552a(e)(5) of the Privacy Act when it directed her removal from the Twelfth Circuit Contract based on the result of MVM's investigation into her visit to the Chief Judge. [Doc. 1 at 14.] And because the Marshals relied on MVM's arguably incomplete investigation that did not include "information from Plaintiff to the greatest extent practicable," Plaintiff continues, the Defendant also violated Section (e)(2). Finally, in her motion for partial summary Judgment, Plaintiff says, for the first time, that Defendant collected and maintained information on her protected First Amendment speech and assembly in violation of Section (e)(7) of the Privacy Act.
The Court first considers Plaintiff Ramey's contention that, in relying on MVM's report of investigation, the U.S. Marshals violated Section 552a(e)(5) *96 of the Privacy Act. The Privacy Act requires that each agency keeping a system of records must maintain those records with "such accuracy, relevance, timeliness, and completeness as is reasonably necessary" to assure fairness to an individual. 5 U.S.C. § 552a(e)(5). As the D.C. Circuit has explained, a plaintiff must establish four elements to recover under this section:
(1) [s]he has been aggrieved by an adverse determination; (2) the [agency] failed to maintain [her] records with the degree of accuracy necessary to assure fairness in the determination; (3) the [agency's] reliance on the inaccurate records was the proximate cause of the adverse determination; and (4) the [agency] acted intentionally or willfully in failing to maintain accurate records.
Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1006 (D.C.Cir.2009) (quoting Deters v. U.S. Parole Comm'n, 85 F.3d 655, 657 (D.C.Cir.1996)). The Act, however, allows only for the correction of ascertainable facts, not the correction of opinions or judgments. Mueller v. Winter, 485 F.3d 1191, 1197 (D.C.Cir.2007) (internal quotation omitted). To that end, while "the Privacy Act allows for the amendment of factual or historical errors[,] . . . [i]t is not, however, a vehicle for amending the judgments of federal officials or . . . others . . . as those judgments are reflected in records maintained by federal agencies." Kleiman v. Dep't of Energy, 956 F.2d 335, 337 (D.C.Cir.1992) (emphasis in original).
The gravamen of Plaintiff's 552a(e)(5) claim is that she did not abandon her post when she met with the Chief Judge; therefore, the U.S. Marshals's records which concluded that she did are not accurate. As part of its two investigations into the incident, MVM reviewed courthouse security footage and interviewed witnesses. According to the first investigation, "Ramey admitted visiting the Chief Judge's chambers" but insisted she was on her 10:00 am break. [Doc. 30-2 at 47.] Because of these conflicting reports, MVM conducted a second investigation. The second report concludes:
Morning breaks are scheduled for 10:00 am. CSO Ramey was seen [on security camera video] away from her post for at least 36 min. prior to 10:00 am. This is a violation of security procedures. . . . The secretary for the Chief Judge . . . was asked. . . if there are any times that the Chief Judge's open house session lasts until 10:00 am. [She] immediately responded, `Oh no. Maybe until 9:00 am but, 10:00 am oh NO!'
[Doc. 30-2 at 63.] With this information in hand, the U.S. Marshals determined that Ramey "is not suitable to serve as a CSO. . . ." [Doc. 31-36 at 1.]
Plaintiff, of course, maintains that she was on a scheduled break and, therefore, the report of investigation is inaccurate. In support, she points to corroborating testimony from another CSO who told the investigator he did not see Ramey abandon her post and from the Chief Judge's law clerk who said the Chief Judge conducted a swearing-in ceremony at 9:30 am that morning. [Doc. 31 at 9.] These bits of information, however, do not create a material issue that MVM's reports are inaccurate. First, with regards to the other CSO's corroborating testimony, after MVM confronted him with "additional information and evidence" which was inconsistent with his original statement, he told the investigator "he would not be making any further statements regarding the investigation." [Doc. 31-26 at 1.] Second, the law clerk's statement is not inconsistent with the report's findings because security footage places Ramey away from her post as early as 9:02 am. [Doc. 30-2 at 63.] The Court therefore finds that *97 Plaintiff has not set forth specific facts showing a genuine issue for trial on the question of whether the U.S. Marshals relied on inaccurate information in ordering Plaintiff's removal from the Twelfth Circuit Contract.
Plaintiff's tag-along claim that the Marshals relied on an investigation that did not include "information from Plaintiff to the greatest extent practicable" is equally unpersuasive. "Each agency that maintains a system of records shall . . . collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs." 5 U.S.C. § 552a(e)(2). "[T]he specific nature of each case shapes the practical considerations at stake that determine whether an agency has fulfilled its obligations under the Privacy Act to elicit information directly from the subject of the investigation to the greatest extent practicable." Cardamone v. Cohen, 241 F.3d 520, 528 (6th Cir.2001). In any event, however, "reasonable questions about a subject's credibility cannot relieve an agency from its responsibility to collect that information first from the subject." See Waters v. Thornburgh, 888 F.2d 870, 873 (D.C.Cir.1989).
In her complaint, Plaintiff describes the investigation as "extremely thorough." [Doc. 1 at 8.] Furthermore, MVM's investigation is replete with Ramey's statements. For example: "[CSO] Ramey admitted visiting the Chief Judge's Chambers . . ."; "[CSO] Ramey interjected that she did not invite the Judge to roll call . . ."; "[Ramey] added that, as president of Local 80, she knows that protocol is."; "[CSO] Ramey appeared to become a little upset and said, `Oh. It went that far?' She continued, `I'm president of Local 80. I know my job. I do a pretty good job. This is an insult.' Her voice cracked. She added, `I know CSOs go to Chief Judge King, but whenever something comes up with Ava Ramey, it's always blown out of proportion.'"; "[CSO] Ramey said she had been union president (of Local 80) since 1998, and that she didn't engage in discussion of government information."; "She stated that, `Lois Epps is a liar' and is always calling (PM) Ralph Zarita with comments like, `Do you know what Ava Ramey is doing now?'"; "[CSO] Ramey disputed the statement in Mrs. Epps memo file . . ."; "[CSO] Ramey said that, three months ago, `the CSOs sent a letter. . ."; "[CSO] Ramey said she never raised her voice, that she always talks loudly, and that it was [a Marshal] who ended the meeting." [Doc. 30-2 at 47, 50, 54.] Against this voluminous record, it is beyond dispute that MVM gave Plaintiff a fair shake at telling her side of the story. Accordingly, because there exists no genuine issue for trial on the question of whether the U.S. Marshals collected information to the greatest extent practicable directly from Ramey, the Court grants summary judgment to the Defendant on this claim.
Finally, Plaintiff's claim that the Defendant collected and maintained information on her First Amendment activity in violation of Section (e)(7) of the Privacy Act fails for two reasons. First, to the extent this claim encompasses the Defendant's collection and maintenance of information on Plaintiff's meeting with the Chief Judge, the Court has already foreclosed this claim. Recall, Ramey's statements to the Chief Judge were made in the course of her duties as a CSO and receive no First Amendment protection. And second, to the extent her Section (e)(7) claim encompasses the Defendant's collection and maintenance of information regarding MVM's 2003 investigation into allegations she was using courthouse *98 equipment to conduct union business, this claim is time-barred based on the Privacy Act's two-year statute of limitations. 5 U.S.C. § 552a(e)(5); see Ramirez v. Dep't of Justice, 594 F.Supp.2d 58, 63 (D.D.C.2009). The Court therefore grants summary judgment to the Defendant on Plaintiff's Privacy Act claims.
IV. Conclusion
The Court finds that no dispute in genuine issue of material fact or law exists in this case, entitling the Defendant to summary judgment. Thus, for the foregoing reasons, the Court DENIES Plaintiff's motion for partial summary judgment and GRANTS the Defendant's motion for summary judgment on all Plaintiff's claims.
A separate Order shall issue this date.
NOTES
[1] Because Plaintiff's Reply Brief to Defendant's Motion in Opposition of Plaintiff's Motion for Summary Judgment is twenty pages longer than allowed under Local Civil Rule 7(e), Plaintiff asks the Court for leave to extend the page limit. [Doc. 41.] Defendant opposes the motion and says Plaintiff's Reply Brief contains an exhibit which was not produced in discovery. [Doc. 42.] In granting Defendant's motion for summary judgment on all claims the Court considered Plaintiff's non-conforming Reply Brief and accompanying exhibits. The Court therefore dismisses as moot Plaintiff's motion for leave and Defendant's opposition.
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NO. 07-00-0450-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 16, 2001
______________________________
FREDDIE LEE WALKER, APPELLANT
V.
TDCJ-ID, ET AL., APPELLEE
_________________________________
FROM THE 23RD DISTRICT COURT OF BRAZORIA COUNTY;
NO. 12290*I00; HONORABLE BEN HARDIN, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
Appellant Freddie Lee Walker, an inmate proceeding
pro se
and
in forma pauperis
, brings this appeal from the trial court’s order of dismissal in his civil rights action against appellees TDCJ-ID, T. Miller, and M. Artherholt for intentionally interfering with correspondence between himself and his son, who is incarcerated at a different facility. Presenting three points of error, Walker contends (1) the trial court abused its discretion in granting Miller and Artherholt’s motion to dismiss without a fact hearing; (2) he was denied due process because the trial court refused to hear his timely objection to TDCJ’s original answer and jury demand and motion to dismiss; and (3) the trial court abused its discretion because the order of dismissal does not indicate whether he failed to comply with section 14.004 of the Texas Civil Practice and Remedies Code. Based upon the rationale expressed herein, we affirm.
Walker is an inmate in the Ramsey II Unit in Rosharon, Texas. His son is an inmate in the John Connally Unit in Kenedy, Texas. T. Miller is the mailroom supervisor and M. Artherholt is an assistant supervisor at the Ramsey II Unit. Walker assists his son with legal matters and considers himself to act as his son’s “jailhouse lawyer.” According to Walker’s live pleading, on May 3, 2000, he was advised by mailroom personnel that a letter from his son was denied for containing plans for activities in violation of correspondence policy. The Unit’s “Correspondence/Contraband Denial Form” indicates that the letter contained plans for “trafficking and trading.” Walker contends he was denied the right to review the contents of the letter in accordance with institution rules. He appealed the decision to the director in Huntsville and filed a grievance in his unit. Walker commenced a civil rights action alleging he was denied access to the courts when Miller and Artherholt violated a rule that provides:
[e]mployees are prohibited from interfering in any manner with the inmate’s/client’s right of access to courts or to public officials. This includes, but is not limited to, unauthorized denial of legal visits or material, harassing or retaliating against inmates/clients for exercising their right to file a grievance or complaint, or corresponding with the courts or public officials.
Following the filing of their original answer and jury demand, Miller and Artherholt filed a motion to dismiss Walker’s suit alleging that he failed to comply with sections 14.004 and 14.006 of the Texas Civil Practice and Remedies Code. After considering the pleadings of the parties, the trial court signed an order granting the motion.
In reviewing the dismissal of a claim under chapter 14, we apply the abuse of discretion standard. McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 (Tex.App.–Houston [14th Dist.] 1998, no pet.);
see also
Hick v. Moya, 926 S.W.2d 397, 398 (Tex.App.–Waco 1996, no writ). Abuse of discretion is determined by whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge does not demonstrate that an abuse of discretion has occurred.
Id
.
By his first point of error, Walker contends the trial court abused its discretion by granting the motion to dismiss without holding a hearing. We disagree. Section 14.003(c) provides that in determining whether to dismiss a claim under 14.003(a), the
court
may hold a hearing
. (Emphasis added). The plain language of the statute indicates that the court’s determination to hold a hearing is discretionary. Thomas v. Wichita General Hosp., 952 S.W.2d 936, 938 (Tex.App.–Fort Worth 1997, pet. denied). Walker does not demonstrate how the trial court abused its discretion, nor does he contend there is evidence he would have presented at a hearing. Point of error one is overruled.
By his second and third points of error, Walker contends that his due process rights were violated by the trial court’s refusal to hear his objections to Miller and Artherholt’s original answer and jury demand and motion to dismiss. We disagree. This Court recognizes that an inmate has a constitutional right to access the courts for the purpose of presenting their complaints. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). However,
pro se
litigants are held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Greenstreet v. Heiskell, 940 S.W.2d 831, 834 (Tex.App.–Amarillo 1997),
reh’g denied
, 960 S.W.2d 713 (1997).
Inmate litigation is governed by chapter 14 of the Texas Civil Practice and Remedies Code Annotated (Vernon Supp. 2001). Walker’s lawsuit is subject to the provisions of that chapter. Thompson v. Henderson, 927 S.W.2d 323, 324 (Tex.App.–Houston [1st Dist.] 1996, no writ). When an inmate files an affidavit of inability to pay costs, he is required to comply with the mandatory requirements set forth in section 14.004(a) relating to previously filed lawsuits. Further, pursuant to section 14.004(c), the inmate must also provide a certified copy of his trust account statement.
Walker’s declaration of inability to pay costs was accompanied by a certified copy of his trust account statement and an affidavit describing previous lawsuits. Miller and Artherholt filed their motion to dismiss alleging that Walker had not complied with certain requirements of section 14.004(a). The trial court’s order does not specify on what basis the motion to dismiss was granted. Thus, we may affirm the order if any proper ground supports it. Shook v. Gilmore & Tatge Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex.App.–Waco 1997, writ denied).
Section 14.004(a)(2)(A) requires that an inmate recite in his affidavit of previous lawsuits the operative facts for which relief was sought. Section 14.004(a)(2)(C) requires that each party to the lawsuit be identified. Although Walker listed two prior suits in his affidavit, he failed to comply with the mandatory requirements of the statute requiring operative facts and identification of parties. No facts nor the type of claims sued upon are contained in Walker’s affidavit. Also, the styles of the cases contain the notations “
et al.
” which do not identify each party named in the suits.
Chapter 14 is designed to control the flood of frivolous lawsuits being filed by inmates.
Hickson
, 926 S.W.2d at 399. The supplemental filings required by section 14.004 are designed to assist the trial court in making determinations that the Legislature has called upon it to make.
Id
. Thus, it is an essential part of the process by which courts review inmate litigation.
Id
. Walker’s failure to comply with the mandatory requirements of section 14.004(a)(2) was a proper ground for dismissal by the trial court.
See generally
Williams v. Brown, 33 S.W.3d 410, 412 (Tex.App.–Houston [1st Dist.] 2000, no pet.) (holding that the trial court did not abuse its discretion in dismissing inmate’s claim on the ground that he did not comply with section 14.004 because he failed to attach a certified copy of his trust account to his affidavit of inability to pay costs). Thus, we find the trial court did not abuse its discretion in dismissing Walker’s cause of action. Points of error two and three are overruled.
(footnote: 1)
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
FOOTNOTES
1:We have not overlooked Walker’s reply brief. However, we do not address any points raised therein for two reasons. First, he contends he complied with section 14.004 which is addressed in this opinion. Second, he requests that we impose sanctions against the Attorney General for an untimely filed brief. By order of this Court, on February 27, 2001, a motion for extension of time in which to file its brief was granted to the Attorney General, making its brief timely filed. Also, no new points or issues may be raised in a reply brief.
See
Tex. R. App. P. 38.3; Barrios v. State, 27 S.W.3d 313, 321 (Tex.App.–Houston [1st Dist.] 2000, pet. ref’d).
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107 Ill. App.3d 523 (1982)
437 N.E.2d 1232
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
CHARLES R. SAMPLES, Defendant-Appellant.
No. 81-356.
Illinois Appellate Court Fifth District.
Opinion filed May 26, 1982.
*524 Edward J. Kionka, of Carbondale, and Paul T. Austin & Associates, of Marion (Paul T. Austin, of counsel), for appellant.
Randy Patchett, State's Attorney, of Marion (Martin N. Ashley and Stephen E. Norris, both of State's Attorneys Appellate Service Commission, of counsel), for the People.
Reversed and remanded.
JUSTICE JONES delivered the opinion of the court:
A jury found the defendant, Charles R. Samples, guilty of armed violence and of intimidation. The incident giving rise to the charges against defendant arose out of a dispute between him, as a used car dealer, and the bank with which he customarily did business over the amount and disposition by the bank of certain credit life insurance monies received upon the death of defendant's father and business associate. As a result of the dispute defendant had gone to the bank to "settle the matter," seeking, in particular, certificates of title to automobiles affected by the bank's disposition of the monies. Defendant was sentenced to a term of imprisonment of 10 years for the crime of armed violence and to a concurrent term of 2 years for the offense of intimidation.
On appeal defendant raises five issues: (1) whether the trial court erred in denying his motion for a substitution of judge; (2) whether the trial court erred in giving on its own motion "an incorrect instruction on the law after the jury had returned its verdict and before the jury could be polled"; (3) whether the armed violence statute is unconstitutional; (4) whether the trial court erred in permitting conviction on both armed violence and intimidation, "a lesser included offense" and (5) whether defendant's sentence is excessive. In view of the disposition we make of this case we need address only the issue concerning defendant's motion for substitution of judge made pursuant to section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a)), which provides as follows:
*525 "Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection, provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced."
We set forth only those facts pertinent to that issue.
On November 21, 1980, the State filed a six-count information against defendant, whose first appearance was before Judge Lewis on December 18, 1980, for a preliminary examination. On December 30, 1980, defendant appeared for a preliminary hearing before Judge Howerton, who found probable cause and entered orders for discovery as well as an order, filed January 2, 1981, setting the motion hearing for March 25, 1981, the pretrial hearing for March 27, 1981, and jury trial for April 1, 1981. At the preliminary hearing Judge Howerton denied defendant's motion to reduce bail. On February 25, 1981, defendant filed a motion for substitution of Judge Lewis because of his prejudice against defendant. At the hearing on the motion on March 27, 1981, Judge Lewis considered and denied a motion of defendant for continuance from the trial date of April 1, 1981. On Wednesday, April 1, 1981, at the beginning of a motion hearing before Judge Lewis, the court stated, "Mr. Austin [defendant's attorney] called me on the telephone [on Monday, March 30, 1981] and brought it to my attention that there had been a Motion for Substitution of Judge filed." Defendant's attorney responded:
"It is my understanding under the law that [the motion for substitution] must be filed within 10 days after you know what Judge this has been assigned to and placed on the particular Judge's docket. It's our position that simply because your Honor set the Case back in November [sic], it is not the same thing as being placed upon your docket and our first notice that [defendant's cause] was actually going to be placed on your docket was when he received the docket sheet, which was some two or three weeks ago and sometime after we had filed a Motion for Substitution. IT IS FOR THAT REASON we believe it's timely."
In denying the motion for substitution Judge Lewis stated:
"Gentlemen, I have been assigned to Williamson County since April of 1972. I guess this will be my 9th year that I have been assigned to Williamson County and I have been assigned for those *526 last nine years to hear criminal cases. No other Judge has been assigned to handle criminal cases in Williamson County unless a substitution was taken from me. I'm the only Judge, I guess, who's handled any criminal cases in Williamson County except when a substitution has been granted or unless that's the only time unless I was tied up in another trial and they might have handled some pretrial matters. So, we've had meetings with the Bar Association in Williamson County and, of course, Mr. Austin you, of course, are a member of the Bar Association so I hope you're well aware that I'm the only one that handles criminal cases unless there is a substitution granted, or unless I'm sick of course, that hasn't occurred in the nine years either. So, I would think that everybody was well apprised that Judge Lewis handles all the criminal cases in this County unless there is a substitution granted and so the Motion will be denied. I think it's if there were any grounds for prejudice that would come under a different section you would have to file an affidavit, so just on the general motion, I don't think it's timely because of the great delay. We would have to assign it to another Judge, who would have to reschedule it which would cause a delay of this case, so the Motion will be denied."
The record contains neither an order of assignment nor any rule of practice concerning assignment such as might be set forth by the circuit court of Williamson County.
1-3 A motion for substitution is timely filed when filed within ten days of the date a defendant can be charged with knowledge of the assignment of the case to the trial judge. (People v. Oatis (1979), 69 Ill. App.3d 736, 387 N.E.2d 1052.) The right to a change of venue for prejudice of a judge is absolute. (People v. Peterson (1979), 70 Ill. App.3d 205, 387 N.E.2d 951; People v. Gregory (1958), 16 Ill. App.2d 576, 149 N.E.2d 198.) The venue provisions are to be liberally rather than strictly construed in order to permit rather than defeat an application for a change of venue, particularly where prejudice is charged on the part of the judge. (People v. Kostos (1961), 21 Ill.2d 451, 173 N.E.2d 469; People v. Peterson.) A liberal construction is required in order to protect the guarantee of a fair and impartial trial implicit in our legal system. (People v. Flowers (1977), 47 Ill. App.3d 809, 365 N.E.2d 506.) In furtherance of this guarantee, section 114-5(a) allows a defendant 10 days from the time a judge is assigned to preside at his trial in which to move for an automatic substitution of judge, provided the defendant believes the judge to be prejudiced against him. People v. Flowers.
4, 5 These rules are predicated upon a good-faith allegation of prejudice on the part of the court and are not to be used for purposes of delay. (People v. Peterson.) Furthermore, where a judge has already commenced *527 a hearing and has by his rulings indicated his views on the merits of the cause, it is too late for the party against whom such rulings have been made to move for a change of venue. (People v. Gregory.) Thus, one criterion for determining the timeliness of such a motion is whether it was filed before the court had considered a substantive issue in the cause. (People v. Ehrler (1969), 114 Ill. App.2d 171, 252 N.E.2d 227.) The purpose of this rule is to preclude counsel from ascertaining the attitude of the trial judge during a hearing on an issue related to the cause and subsequently asserting the prejudice of the court as a ground for allowing a change of venue, provided the trial court's judgment was determined not to be in harmony with the theory of counsel. People v. Ehrler.
6, 7 Because, assuming compliance with the statute, the right of a defendant is absolute, upon such a motion the trial judge loses all power and authority over the cause except to make the necessary orders to effectuate the change, and the denial of such a motion constitutes reversible error. (People v. Davis (1957), 10 Ill.2d 430, 140 N.E.2d 675, cert. denied (1957), 355 U.S. 820, 2 L.Ed.2d 35, 78 S.Ct. 25.) If a defendant's motion is improperly denied, all subsequent action of the trial court is void. People v. Ethridge (1966), 78 Ill. App.2d 299, 223 N.E.2d 437.
8 We do not think that the prevailing practice in the circuit court of Williamson County described by Judge Lewis, in which a certain judge hears all the criminal cases unless he is ill or otherwise unable to do so, amounts to placement of a cause on the trial call of a judge so as to commence the running of the 10-day period in which a defendant may move for automatic substitution of a judge for prejudice. (Cf. People v. Harston (1974), 23 Ill. App.3d 279, 319 N.E.2d 69, where in force at the pertinent time was an administrative order that all criminal trials were to be heard by a certain judge.) Under such a system as that described here serious questions come instantly to mind as to precisely when the critical 10-day period might reasonably be expected to begin to run. Under such a system a defendant might find his right to an automatic substitution of judge for prejudice disappointingly hollow. (See People v. Thomas (1978), 58 Ill. App.3d 460, 374 N.E.2d 795.) Because defendant's cause cannot be said to have been placed on Judge Lewis' trial call at the time defendant filed his motion for substitution, we must conclude that the motion could not have been untimely filed for having been filed too late.
9 Apparently in the alternative, the State contends that defendant's motion was likewise untimely filed for having been filed too early, for not having been filed during the 10-day period after which defendant maintains that he did, in fact, learn that his cause had been placed on the trial call of Judge Lewis. In its brief the State argues that "if the defendant *528 seriously wishes to maintain that he did not know the identity of his trial judge until March, he cannot also maintain that he in good faith moved for substitution of `that judge' [a reference to the language of section 114-5(a)] in February." Our research has not disclosed any case involving, as does the one at bar, the filing of a motion for substitution of judge for prejudice in anticipation of a defendant's actual knowledge of the fact that his cause has been assigned to that particular judge. Defendant relies upon People v. Evans (1971), 1 Ill. App.3d 158, 273 N.E.2d 71, saying of that case, "No evidence that the defendant had actual knowledge of the assignment appears in the opinion." Unfortunately, we cannot determine from the statement of facts made in Evans precisely what did occur there. Bearing in mind the rule of liberal construction of the venue provisions in order to protect the guarantee of a fair and impartial trial, we can think of no reason why a defendant, who believes a particular judge is prejudiced against him, should not be permitted to exercise his right to automatic substitution of that judge in anticipation of the defendant's learning that his cause has, in fact, been assigned to him. A defendant is permitted to exercise the right to automatic substitution but twice at most. If he believes that a certain judge is prejudiced against him and he wishes to exercise that right in spite of the risk that his cause might not, in fact, be assigned to the judge named and that he might thereby misapply his only opportunity, perhaps, for automatic substitution, we see no reason why he should not be permitted to do so. The liberal construction called for in the application of the venue provisions aside, elemental justice requires that no defendant should be forced to stand trial before a judge whom he believes, for whatever reason, to be prejudiced against him.
We have considered the State's further contention that the trial court could have concluded that defendant's motion was made for purposes of delay and find it without merit. We have also read the transcripts of proceedings of all matters considered by the trial court prior to the hearing at which defendant's motion for substitution was considered, including the transcript of the hearing on defendant's motion for continuance held but a few days before the one held on the motion for substitution, and have found nothing in the record to suggest that the trial court indicated in any way at any time his views on the merits of defendant's cause.
For the foregoing reasons we hold that defendant's motion for substitution of judge for prejudice was timely filed. The denial of the motion was therefore error and the subsequent action of the trial court void for lack of jurisdiction. Thus, the judgment of the trial court must be reversed and the cause remanded for a new trial before another judge.
Although the State contends that the issue with respect to the motion for substitution was waived for review by virtue of defendant's failure to *529 include it in his post-trial motion, the State overlooks the fact that questions of jurisdiction may be raised at any time. A jurisdictional defect having occurred, the State's point is not well taken.
With regard to the question raised bearing ultimately on the evidentiary question of whether the crime of intimidation here alleged was committed exclusively through defendant's use of a gun, for guidance upon retrial we refer the parties and the trial court to the recent case of People v. Donaldson (1982), 91 Ill.2d 164, holding that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.
We do not, of course, consider the constitutional question presented in view of the fact that any such consideration would be undertaken in an advisory capacity only, plainly impermissible as to constitutional questions.
Reversed and remanded.
HARRISON and KASSERMAN, JJ., concur.
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22 So.3d 740 (2009)
John C. PERRYS, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D09-5194.
District Court of Appeal of Florida, First District.
November 13, 2009.
Steven Wisotsky, Miami, for Petitioner.
Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Respondent.
PER CURIAM.
John C. Perrys petitions this court for a writ of habeas corpus, contending that his continued pretrial detention under the unique facts of this case contravenes controlling statute and rule, and violates his rights under the state and federal constitutions. Although we do not find he is entitled to immediate release, we grant relief in part and hold that petitioner is entitled to notice and opportunity to be heard in the trial court.
Perrys was charged with armed burglary with assault/battery, aggravated battery, and criminal mischief. Pretrial detention was originally ordered but on *741 March 23, 2009, the circuit court granted a request for pretrial release. A monetary bond was required, a GPS monitor would be attached to the petitioner, and he would be confined to his parents' home in Dade County. While in Dade County, he would be supervised by the Pretrial Services Office (PTS) in that jurisdiction. On May 6, 2009, counsel for petitioner moved to modify the conditions of pretrial release because officials in Dade County had informed counsel that a defendant who was not charged in that county could not be supervised by the PTS there. Thirteen days later, counsel emailed the presiding judge and informed him that the factual premise of the motion to modify was incorrect and that, in fact, Dade County PTS could supervise the petitioner. That same day the motion to modify conditions of pretrial release was denied and pretrial release was revoked.
Petitioner argues, and we agree, that he was entitled to notice and opportunity to be heard before the trial court revoked the pretrial release that had previously been ordered, even if such release had never been effectuated. Although State v. Paul, 783 So.2d 1042 (Fla.2001) is factually distinguishable from the instant case because there the defendant had been released and committed a violation, we find that the reasoning of Paul requires the result we reach. If a new hearing must be held to determine what conditions, if any, will permit pretrial release after a violation, a defendant such as petitioner, who discovers that compliance with a term of his release may be impossible, is entitled to no less.
Upon consideration of the above, we grant the petition, quash the order which denied petitioner's motion to modify pretrial release, and direct that further proceedings on the motion to modify be conducted in the lower tribunal.
PETITION GRANTED.
HAWKES, C.J., BARFIELD and CLARK, JJ., concur.
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77 So.3d 194 (2012)
B.J.
v.
DEPARTMENT OF CHILDREN AND FAMILIES.
No. 5D11-921.
District Court of Appeal of Florida, Fifth District.
January 5, 2012.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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19 F.3d 18
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.William P. HICKEY, Plaintiff-Appellant,v.Robert B. HOLLISTER, Oxley, Malone, Fitzgerald & Hollister,Defendants-Appellees.
No. 93-3217.
United States Court of Appeals, Sixth Circuit.
March 2, 1994.
Before: MERRITT, MILBURN, and SILER, Circuit Judges.
PER CURIAM.
1
Pro se plaintiff appeals the dismissal of his civil rights action under Federal Rule of Civil Procedure 12(b)(6). On appeal, the issues are (1) whether plaintiff's allegations that defendant attorney misused state law and state procedures in the underlying state litigation are sufficient to state a claim that the attorney was acting under color of state law for purposes of 42 U.S.C. Sec. 1983, and (2) whether plaintiff's conclusory allegations of a conspiracy between the defendant attorney and various state judges are sufficient to state a claim that the attorney was acting under color of state law for purposes of 42 U.S.C. Sec. 1983. Upon due consideration of the briefs and record filed herein, this panel unanimously agrees that oral argument is not needed. Federal Rule of Appellate Procedure 34(a) and Rule 9(a), Rules of the Sixth Circuit.
I.
2
In August 1991, Hancock Wood Electric Cooperative filed an action in Bowling Green Municipal Court, Bowling Green, Ohio, against William P. Hickey to recover $2,526.36 that Hickey allegedly owed Hancock Wood on an electrical service account. Robert B. Hollister of the law firm of Oxley, Malone, Fitzgerald & Hollister ("the Oxley Firm") represented Hancock Wood in that lawsuit. Hickey made a limited appearance solely to contest the jurisdiction of the Bowling Green Municipal Court. Hickey apparently argued that the Bowling Green Municipal Court, which is located in Wood County, lacked jurisdiction because he lived in Sandusky County. The court ruled against Hickey, finding that jurisdiction was proper. Hickey failed to answer the complaint, and the court granted a default judgment to Hancock Wood. Hickey neither appealed the judgment nor filed a motion seeking relief under Rule 60(b) of the Ohio Rules of Civil Procedure.
3
When Hickey subsequently failed to appear for a judgment-debtor examination, the Bowling Green Municipal Court issued a capias for his arrest. On January 5, 1992, the Sandusky County Sheriff arrested Hickey and transferred him to the custody of the Wood County Sheriff. Hickey's bond was set at the full amount of the judgment debt owed to Hancock Wood. After the Bowling Green Municipal Court refused to lower the bond to 10 percent, a relative of Hickey paid the full bond amount, and Hickey was released on January 7, 1992. Hickey appeared in court the following day and submitted to the judgment debtor's examination. One of the questions the judge asked Hickey was whether he had personally paid the bond.
4
On January 28, 1992, Hickey filed an action in the Sandusky County Court of Common Pleas, alleging, among other things, malicious prosecution, false arrest, and abuse of process against Hancock Wood for pursuing and obtaining the judgment in the Bowling Green Municipal Court. Hancock Wood was again represented by attorney Hollister in this lawsuit. On March 10, 1992, the Sandusky County Court of Common Pleas granted Hancock Wood's motion to transfer the case to Wood County Court of Common Pleas. In Wood County, the case was originally assigned to Judge Charles F. Kurfess, but he eventually had to withdraw, as did the next two judges who were assigned the case. Finally, the Ohio Supreme Court assigned the case to Judge James E. Barber, who dismissed the case in September 1992, finding that it was only a collateral attack on the Bowling Green Municipal Court judgment and, therefore, barred by res judicata. On June 30, 1993, the Court of Appeals of Ohio, Wood County, reversed the Court of Common Pleas judgment, holding that the lawsuit was not barred by res judicata or collateral estoppel, and the default judgment of the Bowling Green Municipal Court was void for lack of subject matter jurisdiction. Hickey v. Hancock Wood Elec. Coop., 1993 WL 241731 (Ohio Ct.App. June 30, 1993), jurisdictional motions overruled, 622 N.E.2d 654 (1993).1
5
On October 2, 1992, Hickey, proceeding pro se,2 filed this civil rights action, under 42 U.S.C. Sec. 1983, in the federal district court against Hollister,3 the attorney that had represented Hancock Wood in the underlying state court proceedings. Hickey alleged (the "original allegations") that Hollister, in representing Hancock Wood, had "falsely and maliciously, and without any reasonable or probable cause whatsoever," filed the original action in Bowling Green Municipal Court knowing that that court did not have subject matter or personal jurisdiction, and caused that court "to issue a totally invalid default judgment." J.A. 3-4. Hickey further alleged that Hollister, "falsely and maliciously, and without any reasonable or probable cause whatsoever," induced the Municipal Court to grant Hancock Wood's motion for a debtor examination, caused the issuance of a warrant for Hickey's arrest, conspired with the court to set bond at the full amount of the default judgment, caused Hickey to be arrested, conspired with the court to refuse a reduction of the bond amount, and conspired with the court to hold a debtor's examination. As to Hollister's actions regarding the proceeding in Sandusky County Common Pleas Court, Hickey alleged that Hollister, "maliciously and for purposes of delay," filed a motion to dismiss and a motion to transfer the case to Wood County, and "[t]hereafter [Hollister] conspired with members of the Wood County Common Pleas Court to delay as long as possible in order to get the statute of limitations to run out on certain aspects of the case." J.A. 6.
6
Hickey's complaint asserted that Hollister's actions violated 42 U.S.C. Sec. 1983 becuase they deprived him of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Hickey sought costs, damages, fees, punitive damages, and any other available relief. Hickey's complaint also asked the district court to "hold the Bowling Green Municipal Court acted outside of its jurisdiction ... and that its default judgment was void ab initio, and unconstitutional." J.A. 7.
7
Hollister moved to dismiss the complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), because Hickey did not claim that Hollister acted under color of state law. Hickey then amended his complaint to add allegations (the "amended allegations") that Hollister, "under color of state law, and at [his] instigation, conspired with" the judge of the Bowling Green Municipal Court to rule that that court had jurisdiction, "thereby depriving plaintiff of due process of law which requires a defendant to be tried in the county where he resides and/or where the cause of action arose (a rule of law stemming from the English Common Law)." J.A. 31-32. Hickey's amended complaint also contained other similar allegations of actions under color of state law and conspiracy regarding the issuance of a summons, his arrest, and the action in Common Pleas Court.
8
On February 2, 1993, the district court granted Hollister's motion to dismiss for failure to state a claim upon which relief can be granted. Relying on Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the district court held that in order to state a valid cause of action against a private party under Sec. 1983, a plaintiff must challenge the constitutionality of the underlying state statute, not just the misuse of that statute by the private party. The district court found that Hickey's amended complaint could not be construed as challenging the state created procedure on collection, and accordingly held that the complaint failed to state a claim because Hollister was not acting under color of state law. This timely appeal followed.
II.
9
Whether the district court correctly dismissed a case pursuant to Federal Rule of Civil Procedure 12(b)(6) is a question of law subject to de novo review. E.g., Mertik v. Blalock, 983 F.2d 1353, 1356 (6th Cir.1993). In determining if plaintiff's complaint fails to state a claim upon which relief can be granted, we must accept as true all factual allegations of the complaint, but we need not accept as true legal conclusions or unwarranted factual inferences. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). "Although this standard for Rule 12(b)(6) dismissals is quite liberal, more than bare assertions of legal conclusions is ordinarily required to satisfy federal notice pleading requirements." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988).
10
A cause of action is provided by 42 U.S.C. Sec. 1983 against "[e]very person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." "The purpose of Sec. 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 112 S.Ct. 1827, 1830 (1992). To state a claim under Sec. 1983, a plaintiff must allege (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that the deprivation was caused by a person acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56 (1978). Absent either element, a claim will not be stated. The present case concerns the second element; namely, whether Hickey's complaint satisfactorily pleads that Hollister, a private party, was acting under color of state law.
11
Hickey's original allegations stated that Hollister "falsely and maliciously and without any reasonable or probable cause" undertook various actions in the state courts that deprived Hickey of his Constitutional rights. These allegations fail to state a claim under Sec. 1983 because they do not show that Hollister was acting under color of state law.
12
In Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the Court considered whether a private party could be deemed to have acted under color of state law by invoking a state procedure providing for prejudgment attachment of a debtor's property. The Court determined that a private person, such as Hollister, who invokes state created procedures acts "under color of state law" within the meaning of Sec. 1983 only if his actions are "fairly attributable to the State." Id. at 937. This requirement is met if (1) the claimed constitutional deprivation has resulted from "the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible," and (2) "the party charged with the deprivation [is] a person who may fairly be said to be a state actor" because he has "acted together with or has obtained significant aid from state officials" or engaged in conduct "otherwise chargeable to the State." Id.; see also Wyatt v. Cole, 112 S.Ct. at 1830 (summarizing Lugar ).
13
To satisfy the first condition for finding that a private party's actions are "fairly attributable to the state," a plaintiff cannot merely challenge a private party's misuse of a state statute, but rather must challenge the constitutionality of the state statute that created a right, the exercise of which allegedly caused plaintiff's constitutional deprivation. See Lugar, 457 U.S. at 940-41. If the plaintiff alleges only that a private party misused an otherwise valid state statute or procedure and that this misuse caused the constitutional deprivation, the private party has not acted under color of state law because private action, rather than a state created right, has caused the alleged injury. "While private misuse of a state statute does not describe conduct that can be attributed to the State, the procedural scheme created by the statute obviously is the product of state action." Id. at 941. Thus, in Lugar the Court held that the plaintiff's allegation that the defendant private party "invoked the statute without the grounds to do so" did not state a cause of action under Sec. 1983, because the action "could in no way be attributed to a state rule or a state decision." Id. at 940. However, the Court held that a separate count of the complaint that challenged the state statute as procedurally defective under the Fourteenth Amendment did satisfy the first requirement of the "fairly attributable" test. Id. at 941.
14
In this case, Hickey is not challenging the validity of the various state statutes and procedural rules used by Hollister in pursuing and defending the underlying state litigation for Hancock Wood. Rather, Hickey is challenging Hollister's alleged misuse of these state statutes and procedures. For example, Hickey alleges that Hollister, "falsely and maliciously and without reasonable or probable cause whatsoever," filed the collection action in Bowling Green Municipal Court while knowing that court did not have jurisdiction and, as a result, caused an invalid default judgment to be entered, from which Hollister then availed his client of the debtor examination procedures of the municipal court. These allegations, as do the other similar allegations concerning Hollister's actions in defending the state court proceeding brought by Hickey, merely allege that Hollister abused the state statutes and procedures. At no time has Hickey alleged that these statutes or procedures violate the Constitution or federal law. Because Hickey does not challenge the validity of the state statutes or procedures allegedly misused by Hollister, his original allegations fail to show that Hollister was acting under color of state law.
15
Hickey's original and amended allegations also state that Hollister conspired with various judges in the underlying state litigation. Private persons who conspire with state officials to deprive a plaintiff of civil rights are acting under color of state law for purposes of Sec. 1983. Dennis v. Sparks, 449 U.S. 24, 27-29 (1980). However, "merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge." Id. at 28. Therefore, in order to state a conspiracy claim under Sec. 1983, a plaintiff must plead the conspiracy with some degree of specificity. "[V]ague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under Sec. 1983." Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987).
16
Hickey's allegations that Hollister conspired with the various state court judges are conclusory and unsupported by any factual allegations or inferences. For example, Hickey's complaint alleges that Hollister, "under color of state law, and at [his] instigation, conspired with the judge of the Municipal Court" to rule that jurisdiction was proper, to issue a summons by mail, and to arrest Hickey. Hickey does not specify any facts upon which his allegations of conspiracies are based. Hickey does not identify when the conspiracies were formed or what the inducement was for the judge to have "conspired" with Hollister to take these allegedly improper actions in the underlying litigation involving a $2,526.36 debt on an electric account. In sum, Hickey's conclusory allegations of conspiracy are insufficient to state a claim under Sec. 1983's color of state law requirement.
III.
17
For the reasons stated, the order granting defendants' motion to dismiss is AFFIRMED. Rule 9(b)(3), Rules of the Sixth Circuit.
1
The appeal to the Wood County Court of Appeals was still pending at the time the briefs were filed in the present case
2
Although proceeding pro se, Hickey is a licensed attorney in good standing with the Supreme Court of Ohio
3
Hollister's law firm, Oxley, Malone, Fitzgerald & Hollister, is also a defendant. Hollister and the firm will be referred to collectively as Hollister
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71 Cal.App.3d 884 (1977)
139 Cal. Rptr. 682
THE PEOPLE, Plaintiff and Appellant,
v.
JOHN LAMPASONA, Defendant and Respondent.
Docket No. 30222.
Court of Appeals of California, Second District, Division Five.
July 21, 1977.
*885 COUNSEL
Byron B. Gentry, City Prosecutor, and Courtlandt G. Crabtree, Deputy City Prosecutor, for Plaintiff and Appellant.
*886 Hollopeter & Terry and Charles Hollopeter for Defendant and Respondent.
OPINION
STEPHENS, J.
This is an appeal by the People (Pen. Code, § 1466, subd. 1(a)) from an order dismissing the action pursuant to Penal Code section 1385. The matter, which was transferred to this court from the Appellate Department of the Los Angeles Superior Court pursuant to rule 62(a) of the California Rules of Court, is before us on an "Agreed Settled Statement on Appeal."
The pertinent facts contained therein are these: defendant was charged with violating subdivision (a) of section 653m of the Penal Code. He pleaded not guilty. At a pretrial conference, counsel for both parties stipulated: "That if the case was tried the evidence would substantially prove that the defendant called the complaining witness on the telephone. The complaining witness was not in his office and the defendant left a message for the complaining witness to return his call. The complaining witness returned the defendant's call at which time the defendant used language which would constitute a violation of Section 653(m) [sic] of the Penal Code."
(1a) The trial court held, as a matter of law, that defendant did not fall within the purview of the statute because the complaining witness was the one who placed the call in which the offending language was used. For this reason the complaint was dismissed. This appeal followed.[1]
Section 653m of the Penal Code reads as follows:
"(a) Every person who with intent to annoy telephones another and addresses to or about such other person any obscene language or addresses to such other person any threat to inflict injury to the person or property of the person addressed or any member of his family, is guilty of a misdemeanor.
"(b) Every person who makes a telephone call with intent to annoy another and without disclosing his true identity to the person answering *887 the telephone is, whether or not conversation ensues from making the telephone call, guilty of a misdemeanor.
"(c) Any offense committed by use of a telephone as herein set out may be deemed to have been committed at either the place at which the telephone call or calls were made or at the place where the telephone call or calls were received."
(2) It is the policy of this state to construe penal statutes as favorably to the defendant as the language and circumstances allow. (Keeler v. Superior Court, 2 Cal.3d 619, 631 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].) A criminal defendant is entitled the benefit of every reasonable doubt, in questions of statutory interpretation as well as of fact. (Keeler v. Superior Court, supra; In re Tartar, 52 Cal.2d 250, 257 [339 P.2d 553].)
(3) The word "telephones" is a verb meaning to call on the telephone. (Webster's Third New Internat. Dict. (1966).) It refers to the person who places the call, not to the person who receives it. We have no way of knowing if it was the Legislature's intent, in enacting section 653m, to exclude the recipients of telephone calls from the stricture of the statute or whether this was done through inadvertence. It makes no difference.
In discussing the subject of statutory interpretation, Mr. Justice Frankfurter commented that "... Mr. Justice Holmes was wont to say with courteous downrightness, `I don't care what their intention was. I only want to know what the words meant.'" (Frankfurter, Foreward to Symposium on Statutory Construction (1950) 3 Vanderbilt L.Rev. 365.) Mr. Justice Holmes himself, writing for the court, explained why in McBoyle v. United States, 283 U.S. 25 [75 L.Ed. 816, 51 S.Ct. 212], wherein he stated: "Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.... [T]he statute should not be extended ... simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used."[2]
*888 The understanding which the common world would derive from reading section 653m is that it applies only to one who places a telephone call to another. (4) Subdivision (c) of section 653m does not expand the substantive offense, but merely specifies where an action under the statute may be brought. (1b) Nor does the fact that the complaining witness was returning defendant's telephone call alter the result. In the first place, the complaining witness was under no obligation to return the call. In the second place, we know nothing about defendant's state of mind when he placed the first call to the complaining witness. For all we know the hostility which engendered the offensive language may have been triggered by something which the complaining witness said during his conversation with defendant or by something which occurred between the time defendant called the complaining witness and the time the latter returned the call. The interpretation which the trial court placed upon the statute was patently correct.
The judgment is affirmed.
Kaus, P.J., concurred.
ASHBY, J.
I respectfully dissent.
Defendant was charged in a complaint dated September 7, 1976, with a violation of Penal Code section 653m in that he did on or about August 26, 1976, "wilfully and unlawfully with intent to annoy, telephone RICHARD P. RODMAN ... and address to such person a threat to inflict injury to his person...."
At the pretrial conference in municipal court it was stipulated that "if the case was tried the evidence would substantially prove that the defendant called the complaining witness on the telephone. The complaining witness was not in his office and the defendant left a message for the complaining witness to return his call. The complaining witness returned the defendant's call at which time the defendant used language which would constitute a violation of Section 653 (m) of the Penal Code."
The trial court dismissed the complaint on the ground that although defendant had called the victim and requested that he call defendant, defendant did not personally place the call in which the prohibited language was used.
*889 The interpretation placed upon Penal Code section 653m by the trial court and the majority of this court does not appear to me to be "patently correct" as overstated by the majority. On the contrary, their interpretation of section 653m leads to an absurd result. The instant case does not involve a situation where the victim initiated a call to defendant and was subjected to language in violation of section 653m. Here defendant called the victim and when he fortuitously was unavailable requested the return call and then subjected him to the prohibited language in response to that call. Defendant used the prohibited language. The victim received the message defendant apparently intended to give him when defendant originally made his call and solicited the return call. It is clear that the Legislature intended to deter persons from telephoning other persons and making threats. It is not reasonable to so literally construe the language expressing that intent that the result is reached that a caller who threatens his intended victim on the originating phone call is in violation of section 653m but one who leaves word to be called and then makes his threats when the call is returned is not in violation. In People v. Barksdale, 8 Cal.3d 320 [105 Cal. Rptr. 1, 503 P.2d 257], the Supreme Court held at page 334: "`It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. [Citations.]'" The court said further in People v. Carroll, 1 Cal.3d 581, 584 [83 Cal. Rptr. 176, 463 P.2d 400]: "In considering the words of a statute, an appellate court is required to read the statute in the light of the objective sought to be achieved by it, as well as the evil sought to be averted."
A defendant is not relieved of culpability under section 653m because the victim's unavailability when defendant called results in his being subjected to the language prohibited by section 653m during the return call.
I would reverse the order of dismissal and permit the matter to be tried to determine whether all the elements necessary to satisfy the statute can be proved.
NOTES
[1] Defendant does not dispute the People's right to appeal under the circumstances.
[2] McBoyle, supra, involved the question of whether the word "vehicle" in the National Motor Vehicle Theft Act applied to airplanes. The court held that it did not.
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85 F.Supp. 881 (1949)
UNITED STATES
v.
PARAMOUNT PICTURES, Inc. et al.
No. 87-273.
United States District Court S. D. New York.
July 25, 1949.
*882 *883 Before AUGUSTUS N. HAND, Circuit Judge, HENRY W. GODDARD and ALFRED C. COXE, District Judges.
Herbert A. Bergson, Assistant Attorney General, Robert L. Wright and J. Francis Hayden, Special Assistants to the Attorney General, George H. Davis, Jr., Washington, D. C., and Harold Lasser, New York City, Special Attorneys, for United States of America.
Davis, Polk, Wardwell, Sunderland & Kiendl, J. Robert Rubin, New York City, for defendant Loew's, Inc.; John W. Davis, J. Robert Rubin, S. Hazard Gillespie, Jr., and Benjamin Melniker, New York City, of counsel.
Joseph M. Proskauer and Robert W. Perkins, New York City, for the Warner defendants; Joseph M. Proskauer, Robert W. Perkins, J. Alvin Van Bergh, Howard Levinson, and Harold Berkowitz, New York City, of counsel.
James F. Byrnes, Washington, D. C., Dwight, Harris, Koegel & Caskey, New York City, for Twentieth Century-Fox Film Corporation and National Theatres Corporation, defendants; James F. Byrnes, Otto E. Koegel, John F. Caskey, and Frederick W. R. Pride, New York City, of counsel.
Schwartz & Frohlich, New York City, for defendant Columbia; Louis D. Frohlich and Everett A. Frohlich, New York City, of counsel.
Charles D. Prutzman, New York City, for Universal defendants; Cyril S. Landau, New York City, of counsel.
O'Brien, Driscoll & Raftery, New York City, for defendant United Artists Corporation; Edward C. Raftery and George A. Raftery, New York City, of counsel.
AUGUSTUS N. HAND, Circuit Judge.
This case comes before us after a decision by the Supreme Court affirming in part and reversing in part our decree and findings of December 31, 1946, 70 F.Supp. 53. United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. Under our findings of fact, we held that there had been violations of Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1, 2, which were summarized in the conclusions of law as follows:
"7. The defendants Paramount Pictures, Inc.; Paramount Film Distributing Corporation; Loew's Incorporated; Radio-Keith-Orpheum Corporation, RKO Radio Pictures, Inc.; Keith-Albee-Orpheum Corporation; RKO Proctor Corporation; RKO Midwest Corporation; Warner Bros. Pictures, Inc.; Vitagraph, Inc.; Warner Bros. Circuit Management Corporation; Twentieth Century-Fox Film Corporation; National Theatres Corporation; Columbia Pictures Corporation; Columbia Pictures of Louisiana, Inc.; Universal Corporation; Universal Film Exchanges, Inc.; Big U Film Exchange, Inc.; and United Artists Corporation have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures and attempted to monopolize such trade and commerce, * * * in violation of the Sherman Act by:
"(a) Acquiescing in the establishment of a price fixing system by conspiring with one another to maintain theatre admission prices;
"(b) Conspiring with each other to maintain a nation-wide system of runs and clearances which is substantially uniform in each local competitive area.
"8. The distributor defendants Paramount Pictures, Inc.; Paramount Film Distributing Corporation; Loew's, Incorporated; Radio-Keith-Orpheum Corporation; RKO Radio Pictures, Inc.; Warner Bros. Pictures, Inc.; Vitagraph, Inc.; Twentieth Century-Fox Film Corporation; Columbia Pictures Corporation; Columbia Pictures of Louisiana, Inc.; Universal Corporation; Universal Film Exchanges, Inc.; Big U Film Exchange, Inc.; and United Artists Corporation, have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures and attempted to monopolize such trade and commerce, * * * in violation of the Sherman Act by:
"(a) Conspiring with each other to maintain a nation-wide system of fixed minimum motion picture theatre admission prices;
*884 "(b) Agreeing individually with their respective licensees to fix minimum motion picture theatre admission prices;
"(c) Conspiring with each other to maintain a nation-wide system of runs and clearances which is substantially uniform as to each local competitive area;
"(d) Agreeing individually with their respective licensees to grant discriminatory license privileges to theatres affiliated with other defendants and with large circuits as found in finding No. 110 above;
"(e) Agreeing individually with such licensees to grant unreasonable clearance against theatres operated by their competitors;
"(f) Making master agreements and franchises with such licensees;
"(g) Individually conditioning the offer of a license for one or more copyrighted films upon the acceptance by the licensee of one or more other copyrighted films, except in the case of the United Artists Corporation;
"(h) The defendants Paramount and RKO making formula deals.
"(9) The exhibitor-defendants, Paramount Pictures, Inc.; Loew's, Incorporated; Radio-Keith-Orpheum Corporation; Keith-Albee Orpheum Corporation; RKO Proctor Corporation; RKO Midwest Corporation; Warner Bros. Pictures, Inc.; Warner Bros. Circuit Management Corporation; Twentieth Century-Fox Film Corporation; and National Theatres Corporation have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures * * * in violation of the Sherman Act by:
"(a) Jointly operating motion picture theatres with each other and with independents through operating agreements or profit-sharing leases;
"(b) Jointly owning motion picture theatres with each other and with independents through stock interests in theatre buildings;
"(c) Conspiring with each other and with the distributor-defendants to fix substantially uniform minimum motion pictures theatre admission prices, runs, and clearances;
"(d) Conspiring with the distributor-defendants to discriminate against independent competitors in fixing minimum admission price, run, clearance, and other license terms."
As a remedy for the violations which we have summarized above, we held that a system of competitive bidding for film licenses should be introduced, saying in Finding 85 that:
"Competition can be introduced into the present system of fixed admission prices, clearances, and runs, by requiring a defendant-distributor when licensing its features to grant the license for each run at a reasonable clearance (if clearance is involved) to the highest bidder, if such bidder is responsible and has a theatre of a size, location, and equipment adequate to yield a reasonable return to the licensor. In other words, if two theatres are bidding and are fairly comparable, the one offering the best terms shall receive the license. Thus, price fixing among the licensors or between a licensor and its licensees as well as the noncompetitive clearance system may be terminated."
We also said in Finding 111 that the granting of discriminatory license privileges would be impossible under such a system of competitive bidding as we have mentioned. In addition to providing a system of competitive bidding, we enjoined the unlawful practices above referred to, other than discrimination in granting licenses, which was sufficiently obviated by the provisions for competitive bidding.
In connection with the foregoing, we denied the application of the plaintiff to divest the major defendants of their theatres on the ground that such a remedy was too harsh and that the system of competitive bidding when coupled with the injunctive relief against the practices we found to be unlawful was adequate relief, at least until the efficiency of that system had been tried and found wanting. We held that the root of the lack of competition lay not in the ownership of many or most of the best theatres, but in the illegal practices of the defendants, which we believed would be obviated by the remedies we proposed. We examined the theatre holdings of the major *885 defendants, found that they aggregated only about 17% of all theatres in the United States, and held that these defendants by such theatre holdings alone did not collectively or individually have a monopoly of exhibition. While we did not find in express terms that there was no monopoly in first-run exhibition, we did review the statistics as to the first-run ownership in the 92 largest cities and stated in our opinion of June 11, 1946, that the defendants were not to be viewed collectively in determining the question of monopoly. See 66 F. Supp. 323, 354. We also found no substantial proof that any of the corporate defendants was organized or had been maintained for the purpose of achieving a national monopoly. Finding No. 152. Likewise, even as to localities where one defendant owned all first-run theatres, we found no sufficient proof of purpose to create a monopoly or that the total ownership in such places had not rather arisen from the inertness of competitors, their lack of financial ability to build comparable theatres, or from the preference of the public for the best equipped theatres. Finding No. 153.
In its opinion remanding the case for further consideration in certain respects, the Supreme Court affirmed our findings as to price-fixing, runs, clearances, and discriminatory licenses and other practices which we found to be unlawful, with certain minor reservations as to the unlawfulness of joint interests and franchises. It eliminated, however, the provisions of our decree for competitive bidding "so that a more effective decree may be fashioned," adding by way of caution that: "The competitive bidding system was perhaps the central arch of the decree designed by the District Court. Its elimination may effect the cases in ways other than those which we expressly mention. Hence on remand of the cases the freedom of the District Court to reconsider the adequacy of decree is not limited to those parts we have specifically indicated." 334 U.S. at page 166, 68 S.Ct. at page 933. It directed our further consideration of monopoly, divestiture and expansion of theatre holdings, giving as one reason the following: "As we have seen, the District Court considered competitive bidding as an alternative to divestiture in the sense that it concluded that further consideration of divestiture should not be had until competitive bidding had been tried and found wanting. Since we eliminate from the decree the provisions for competitive bidding, it is necessary to set aside the findings on divestiture so that a new start on this phase of the cases may be made on their remand." 334 U.S. at page 175, 68 S.Ct. at page 937.
As further reasons for directing a reconsideration of the above issues, we were asked to determine whether the vertical integration of the major defendants, which was held not to be unlawful per se, was conceived with an intent to monopolize or was of such a character as to confer a known monopoly power. If the power be established, a specific intent to monopolize need not be shown. As was said by Justice Douglas in United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236, and referred to in United States v. Paramount Pictures, Inc., 334 U.S. 131, 173, 68 S.Ct. 915, 92 L.Ed. 1260: "It is, however, not always necessary to find a specific intent to restrain trade or to build a monopoly in order to find that the antitrust laws have been violated. It is sufficient that a restraint of trade or monopoly results as the consequence of a defendant's conduct or business arrangements. United States v. Patten, 226 U.S. 525, 543, 33 S. Ct. 141, 145, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; United States v. Masonite Corp., 316 U.S. 265, 275, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461. To require a greater showing would cripple the Act. As stated in United States v. Aluminum Co. of America, 2 Cir., 148 F. 2d 416, 432, `no monopolist monopolizes unconscious of what he is doing.' Specific intent in the sense in which the common law used the term is necessary only where the acts fall short of the results condemned by the Act."
In dealing with the effect of vertical integration upon monopoly, the opinion of the Supreme Court directs us to consider more explicitly than we did in our original opinion whether monopoly exists as to first-run theatres throughout the nation, *886 in the 92 largest cities, and in local situations.
It also directs us to determine whether there has been a geographic distribution of theatre ownership among the major defendants. The opinion also says:
"It is clear, so far as the five majors are concerned, that the aim of the conspiracy was exclusionary, i.e. it was designed to strengthen their hold on the exhibition field. In other words, the conspiracy had monopoly in exhibition for one of its goals, as the District Court held. Price, clearance, and run are interdependent. The clearance and run provisions of the licenses fixed the relative playing positions of all theatres in a certain area; the minimum price provisions were based on playing position the first-run theatres being required to charge the highest prices, the second-run theatres the next highest, and so on. As the District Court found, `In effect, the distributor, by the fixing of minimum admission prices attempts to give the prior-run exhibitors as near a monopoly of the patronage as possible.'
"It is, therefore, not enough in determining the need for divestiture to conclude with the District Court that none of the defendants was organized or has been maintained for the purpose of achieving a `national monopoly,' nor that the five majors through their present theatre holdings `alone' do not and cannot collectively or individually have a monopoly of exhibition. For when the starting point is a conspiracy to effect a monopoly through restraints of trade, it is relevant to determine what the results of the conspiracy were even if they fell short of monopoly." 334 U. S. at pages 170-171, 68 S.Ct. at page 935.
We were also directed to determine whether any "illegal fruits" were acquired or maintained by the defendants as results of unlawful conspiracies and to divest any such fruits, irrespective of whether monopoly had in fact been achieved. The plaintiff has not introduced evidence to support any claim of divestiture of "illegal fruits" and expressly reserves the presentation of such an issue for the future.
Because of the view of the Supreme Court as to matters to be specially considered on the remand as well as its view regarding other matters which it left open for consideration by this court, it set aside our findings on monopoly and divestiture and our provisions prohibiting further theatre expansion and our provisions for competitive bidding, in order that "the District Court should be allowed to make an entirely fresh start on the whole of the problem."
Although we previously held in Finding No. 154 that the illegalities and restraints were not in the ownership of theatres by the major defendants but in their unlawful practices, this finding was made because of our view that the competitive bidding system, when coupled with injunctions, would terminate the illegalities, and if such illegalities were terminated, the theatre ownerships alone would not be unlawful. This interpretation of our finding is justified by our former conclusion that divestiture should not be tried unless the competitive bidding system was found wanting. In other words, if theatre ownership were regarded as under no circumstances related to violations of the Sherman Act, divestiture could not be a proper remedy and would not have been suggested as a possible alternative in our former opinion.
Similarly, our Findings 152 and 153 that none of the defendants had been organized or maintained to achieve a national monopoly in production, distribution, or exhibition, or a local monopoly in first-run theatre ownership should be read in the light of the remedy we adopted. The provisions for competitive bidding were thought to have eliminated the conspiracies which had theretofore existed among the defendants in their capacities both as distributors and exhibitors and between defendants and independents, in which the defendants had cooperated and aided one another through certain illegal practices. We accordingly treated the defendants as no longer able to engage in illegal practices and the public sufficiently safeguarded by the requirement of competitive bidding and the injunctions against such practices. These safeguards we thought applied to the *887 national market as well as to local situations. Our conclusion of law that the defendants had attempted to monopolize was correct as to their prior acts, unaffected by our decree. And so the Supreme Court understood us to mean when it said: "In other words, the conspiracy had monopoly in exhibition for one of its goals, as the District Court held." 334 U. S. at page 170, 68 S.Ct. at page 935. With the elimination of competitive bidding, as we shall see from our future discussion, our Findings numbered 152 and 153 would not be justified, and should be vacated.
A review of the illegalities which we, and the Supreme Court as well, have found to exist, in addition to a consideration of geographical distribution and a very general absence of competition between the major defendants, convinces us that in the absence of a system of competitive bidding, the theatre holdings of the major defendants have played a vital part in effecting violations of the Sherman Anti-Trust Act.
We have held that all of the defendants fixed substantially the same price for each theatre in which they licensed their films. This system was general and affected most of the theatres in the United States. We likewise held that the system restricted competition between the theatres of the major defendants and those of independents. The system also plainly restricted competition between the theatres of the major defendants in those areas where such theatres were in competition with one another, since the minimum price to be charged by any theatre licensee was fixed and the licensee was prevented from competing in the business of exhibition by lowering his price. That these restrictions on competition were one of the primary objectives of the price-fixing conspiracy was noted in our former opinion, where we said that: "* * * all of the five major defendants had a definite interest in keeping up prices in any given territory in which they owned theatres, and this interest they were safeguarding by fixing minimum prices in their licenses when distributing their films to independent exhibitors in those areas. Even if the licenses were at a flat rate, a failure to require their licensees to maintain fixed prices would leave them free by lowering the current charge to decrease through competition the income in the licensors' own theatres in the neighborhood." 66 F.Supp. at pages 335-336.
In discussing the foregoing practices, Mr. Justice Douglas said in his opinion:
"The District Court found that two price-fixing conspiracies existed a horizontal one between all the defendants, a vertical one between each distributor-defendant and its licensees. The latter was based on express agreements and was plainly established. The former was inferred from the pattern of price-fixing disclosed in the record. We think there was adequate foundation for it too. It is not necessary to find an express agreement in order to find a conspiracy. It is enough that a concert of action is contemplated and that the defendants conformed to the arrangement. Interstate Circuit v. United States, 306 U. S. 208, 226-227, 59 S.Ct. 467, 474, 83 L.Ed. 610; United States v. Masonite Corp., 316 U. S. 265, 275, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461. That was shown here." 334 U. S. at page 142, 68 S.Ct. at page 922.
It seems obvious from the foregoing that complete freedom from price competition among theatre holders could only be obtained if prices were fixed by all distributors, and such a result was substantially obtained. Consequently, the system of theatre licensing had a vital and all-pervasive effect in restricting competition for theatre patronage.
In our Finding 72 we held that: "The differentials in admission price set by a distributor in licensing a particular feature in theatres exhibiting on different runs in the same competitive area are calculated to encourage as many patrons as possible to see the picture in the prior-run theatres" and thus the distributor "attempts to give the prior-run exhibitors as near a monopoly of the patronage as possible." This policy not only benefited the distributors in securing to them a maximum rental income from their films, but also benefited the major defendants as exhibitors, since they were *888 by far the largest owners of first-run theatres in the country.
The fixed system of runs and clearances which we found involved a cooperative arrangement among the defendants, was also designed to protect their theatre holdings and safeguard the revenue therefrom. Like the system of fixed prices, it could only succeed in eliminating competition if the defendants generally cooperated in maintaining it, as we have held they did. The major defendants' predominant position in first-run theatre holdings was strongly protected by a fixed system of clearances and runs. As we said in our former opinion: "The evidence we have referred to shows that both independent distributors and exhibitors when attempting to bargain with the defendants have been met by a fixed scale of clearances, runs, and admission prices to which they have been obliged to conform if they wished to get their pictures shown upon satisfactory runs or were to compete in exhibition either with the defendants' theatres or with theatres to which the latter have licensed their pictures. Under the circumstances disclosed in the record there has been no fair chance for either the present or any future licensees to change a situation sanctioned by such effective control and general acquiescence as have obtained." 66 F.Supp. at page 346.
Our view was confirmed by Mr. Justice Douglas as follows: "Clearances have been used along with price fixing to suppress competition with the theatres of the exhibitor-defendants and with other favored exhibitors." 334 U. S. 131, 148, 68 S.Ct. 915, 924.
While we pointed out in our former opinion that there was discrimination in clearance and run by distributors and theatre holders in particular instances, such as William Goldman Theatres v. Loew's Inc., 3 Cir., 150 F.2d 738, and Bigelow v. RKO Radio Pictures, Inc., 7 Cir., 150 F.2d 877, reversed on other grounds, 327 U. S. 251, 66 S.Ct. 574, 90 L.Ed. 652, we concluded that we could not say upon the facts before us that this discrimination was general. Nevertheless, as already stated, we held that the defendants had set up a system of fixed runs and clearances which prevented any effective competition by outsiders. This system, in the absence of competitive bidding which has now been rejected, gave the defendants a practical control over the run and clearance status of any given theatre and irrespective of the extent of local discriminations violated the Sherman Act. It involved discrimination against persons applying for licenses and seeking runs and clearances for their theatres, because they had no reasonable chance to improve their status by building or improving theatres while the major defendants possessed superior advantages. Therefore, though the evidence was insufficient to convince us that there was discrimination in negotiation for clearances and runs theatre by theatre, because it was well-nigh impossible to establish that a particular clearance or run was not refused because of the inadequacy of the applicant's theatre, the system of clearances and runs was such as to make competition against the defendants practically impossible.
As we have held, the licensing agreements in use by the defendants discriminated against small independents in favor of the larger circuits of affiliated and unaffiliated theatres. This discrimination was effected through formula deals and certain privileges frequently granted to large circuits in franchises and master agreements. They not only showed discrimination against small theatre owners, but in many instances also showed cooperation among the major defendants in their respective capacities as distributors and exhibitors. The minor defendants as distributors acceded to and cooperated with these restrictions, which excluded small independents.
Formula deals and certain master agreements, both of which involved licenses to more than one theatre, and frequently to affiliated or large independent circuits, permitted the exhibitor to allocate film rental and playing time and thus precluded other theatre owners from the opportunity of competing for films theatre by theatre. While the Supreme Court has said that franchises are not necessarily objectionable *889 per se, the defendants in various instances coupled their franchises with contract provisions which were not included in the standard forms of contract under which small independents were licensed. These provisions, which at times conferred great competitive advantages upon those receiving them, were: "Suspending the terms of a given contract, if a circuit theatre remains closed for more than eight weeks, and reinstating it without liability upon reopening; allowing large privileges in the selection and elimination of films; allowing deductions in film rentals if double bills are played; granting moveovers and extended runs; granting road show privileges; allowing overage and underage; granting unlimited playing time; excluding foreign pictures and those of independent producers; granting rights to question the classification of features for rental purposes." [Finding 110].
We have been instructed by the Supreme Court to consider the question of geographical distribution of theatres among the five major defendants. In dealing with this subject, we do not take into account the presence or absence of independent theatres in the areas dealt with. We have examined the defendants' theatre holdings and find that in cities of less than 100,000 in population, there is no doubt that Paramount, Warner, Fox and RKO owned or operated theatres either in largely separate market areas or in pools, without more than trifling competition among themselves or with Loew's. In cities having a population of more than 100,000, there was in general little competition among the defendants, although considerably more than in towns of under 100,000. A summary of the data which substantially represents the true situation, but owing to certain differences in the proofs offered must be regarded as approximate rather than as entirely accurate, is as follows:
Cities of less than 100,000.
In cities of less than 100,000, Paramount had complete or partial interests in or pooling agreements[*] with other defendants affecting 1,236 theatres located in 494 towns. In 13 of these towns containing 31 of the theatres or only 3% there was competition with another defendant. In 9% of these towns competition between Paramount and the only other defendant in the town was substantially lessened or eliminated by means of a pooling agreement affecting some or all of their theatres; and in this 9% were located 10% of Paramount's theatre interests. And in 88% of the towns, containing 87% of Paramount's theatre interests, Paramount was the only defendant operating theatres. Thus it appears that there was little, if any, competition between Paramount and any other defendant in 97% of the towns of under 100,000 and in respect to 97% of the theatres in which Paramount had an interest.
Fox had similar theatre interests in 428 theatres located in 177 towns. In 13 of these towns containing 29 Fox theatres or about 7% thereof, there was competition with another defendant. In about 93% of the towns containing the same percentage of Fox's theatre interests, Fox was the only defendant operating theatres.
Warner had similar theatre interests in 306 theatres located in 155 towns or less than 100,000. In 17 towns, or 11%, containing 30 Warner theatres, or 10% of its holdings, there was competition with another major defendant. In 3% of the towns, competition between Warner and the only other defendant in the town was substantially lessened or eliminated by means of pooling agreements; and in this 3% were located 4% of Warner's theatre interests. In 86% of the towns containing the same percentage of Warner's theatre interests, Warner was the only defendant operating theatres. Thus, there appears to have been little, if any, competition between Warner and any other defendant in 89% of the towns and in respect to 90% of the theatres in which Warner had an interest.
*890 Loew had interests in only 17 theatres located in 14 towns. In 4 towns, or 29%, containing 4 Loew theatres, or 23%, there was competition with another defendant. In 14% of the towns, competition was substantially lessened or eliminated by means of pooling agreements; and in this 14% were located 18% of Loew's theatre interests. In 57% of the towns, containing 59% of Loew's theatre interests, Loew was the only defendant operating theatres. Thus, there appears to have been little, if any, competition between Loew and any other defendant in 71% of the towns and in respect to 77% of the theatres in which Loew had an interest. It is to be noted, however, that Loew's theatre interests in towns of less than 100,000 constitute a far smaller proportion of its total theatre holdings than do those of the other defendants.
RKO had interests in 150 theatres located in 66 towns. In 6 towns, or 10%, containing 6 RKO theatres, or 4%, there was competition with another major defendant. In 60% of the towns, competition was substantially lessened or eliminated by means of pooling agreements, and in this 60% were located 73% of RKO's theatre interests. In 30% of the towns, containing 23% of RKO's theatre interests, RKO was the only defendant operating theatres. Thus, there appears to have been little, if any, competition between RKO and any other defendant in 90% of the towns and in respect to 96% of the theatres in which RKO had an interest.
As a further illustration of the absence of substantial competition among the five major defendants in towns of less than 100,000 population, the proofs as to their total theatre holdings make the following showing which seems to us impressive. They had interests altogether in 2,020 theatres located in 834 towns. In 26 towns, or 3%, containing 100 of their theatres, or 5%, there was competition among some of them. In somewhat over 5% of the towns competition between them was substantially lessened or eliminated by means of pooling agreements, and in this 5% were located 7% of their theatre interests. And in somewhat less than 92% of the towns, containing 88% of their theatre interests, only one of the major defendants owned theatres in the area. Thus, there appears to have been little, if any, competition among the five defendants or any of them in 97% of the towns and in respect to 95% of the theatres in which they had an interest.
It appears from the foregoing that the effect of the geographical distribution in towns having a population of less than 100,000 was largely to eliminate competition among all of the defendants in the areas where any of them had theatres. The details upon which our results have been based appear in the statistical data set forth at the end of the opinion in Appendix 1.
Cities of 100,000 and over.
In cities of over 100,000 Paramount had complete or partial interests in or pooling agreements with other defendants affecting 352 theatres in 49 cities. In 18 of these cities, or 37%, containing 91 Paramount theatres, or 26%, there was competition with other defendants. In an additional 10% of the cities containing 17% of Paramount's theatre holdings, there were other defendants having theatre interests, but those interests were so relatively small as compared with Paramount, both on first and later runs, that competition with Paramount was unsubstantial owing to the dominance which the latter's theatre holdings gave it. In 12% of these cities competition between Paramount and the only other defendants in the city was substantially lessened or eliminated by means of a pooling agreement affecting some or all of their theatres, and in this 12% were located 18% of Paramount's theatre interests. And in 41% of the cities, containing 39% of Paramount's theatre interests, Paramount was the only defendant operating theatres. Thus, it appears that there was little, if any, competition between Paramount and any other defendant in 63% of the cities of over 100,000 and in respect to 74% of the theatres in which Paramount had an interest.
Fox had similar theatre interests in 211 theatres located in 17 cities. In 5 of *891 these cities, or 29%, containing 54 Fox theatres, or 26%, there was competition with other defendants. In an additional 18% of the cities containing 41% of Fox's theatre holdings, there were other defendants having theatre interests, but those interests were so relatively small as compared with Fox, both on first and later runs, that competition with Fox was unsubstantial owing to the dominance which the latter's theatre holdings gave it. In 53% of the cities, containing 33% of Fox's theatre interests, Fox was the only defendant operating theatres. Thus, it appears that there was little, if any, competition between Fox and any other defendant in 71% of the cities and in respect to 74% of the theatres in which Fox had an interest.
Warner had similar theatre interests in 243 theatres located in 26 cities. In 14 of those cities, or 54%, containing 89 theatres, or 37%, there was competition with other defendants. In an additional 8% of the cities, containing 5% of Warner's theatre holdings, there were other defendants having theatre interests, but those interests were so relatively small as compared with Warner, both on first and later runs, that competition with Warner was unsubstantial owing to the dominance which the latter's theatre holdings gave it. In 19% of these cities competition between Warner and the only other defendants in the city was substantially lessened or eliminated by means of a pooling agreement affecting some or all of their theatres, and in this 19% were located 51% of Warner's theatre interests. And in 19% of the cities, containing 7% of Warner's theatre interests, Warner was the only defendant operating theatres. Thus, it appears that there was little, if any, competition between Warner and any other defendant in 46% of the cities and in respect to 63% of the theatres in which Warner had an interest.
Loew had similar theatre interests in 144 theatres located in 37 cities. In 32 of those cities, or 86%, containing 122 Loew theatres, or 85%, there was competition with other defendants. In 3% of these cities, competition between Loew and the only other defendant in the city was eliminated by means of a pooling agreement affecting all of their theatres, and in this 3% were located 7% of Loew's theatre interests. And in 11% of the cities, containing 8% of Loew's theatre interests, Loew was the only defendant operating theatres. Thus, it appears that there was little, if any, competition between Loew and any other defendant in 14% of the cities and in respect to 15% of the theatres in which Loew had an interest. In the matter of mere geographical distribution of its theatres, Loew has the most favorable record of any of the major defendants. But it is to be noted that, while it is true that as to its neighborhood prior run theatres in New York, there was competition with RKO in the sense that both operated in New York on the same runs, nevertheless these two companies divided the product of the various defendant distributors under a continuing arrangement so that there was no competition between them in obtaining pictures. Indeed, on one occasion where Paramount was having a long dispute with Loew's as to rental terms for Paramount films to be shown in Loew's New York neighborhood circuit of theatres, no attempt was made by Paramount to lease its films to RKO for exhibition in the latter's circuit, nor was any effort made by RKO to procure Paramount films as they both evidently preferred to adhere to the existing arrangement, under which Loew's circuit consistently exhibited the films of itself, Paramount, United Artists, Columbia and half of Universal, while RKO exhibited the films of itself, Fox, Warner, and half of Universal. Accordingly, we think that the showing that 85% of Loew's theatres are in competition with theatres of other defendants is misleading and may properly be reduced by the exclusion of its New York neighborhood theatres. If this is done, it would give Loew a percentage of approximately 42% of its theatres in competition with other defendants in cities over 100,000.
RKO had similar theatre interests in 256 theatres in 31 cities. In 22 of these cities, or 72%, containing 190 theatres, or 74%, there was competition with other defendants. In an additional 6% of the cities, containing 4% of RKO's theatre holdings, *892 there were other defendants having theatre interests, but those interests were so relatively small as compared with RKO, both on first and later runs, that competition with RKO was unsubstantial owing to the dominance which the latter's theatre holdings gave it. In 16% of these cities, competition between RKO and the only other defendants in the city was substantially lessened or eliminated by means of a pooling agreement affecting some or all of their theatres, and in this 16% were located 15% of RKO's theatre interests. And in 6% of the cities, containing 7% of RKO's theatre interests, RKO was the only defendant operating theatres. Thus, it appears that there was little, if any, competition between RKO and other defendants in 28% of the cities and in respect to 26% of the theatres in which RKO had an interest. With respect to mere geographical distribution, RKO's record was relatively good but it is to be noted that approximately 58% of its theatre interests were located in New York on neighborhood runs, and the same comments as to distribution of film made in regard to Loew's are applicable to RKO. If its New York neighborhood theatre interests were excluded from the category of theatres in competition with other defendants, the RKO percentage would then be only about 16% in competition with other defendants.
The major defendants had interests altogether in 1,112 theatres located in 87 cities of more than 100,000. In 46% of these cities, containing 23% of their theatre interests, only one of the major defendants owned theatres in the area. In 11.5% of the cities, competition between them was substantially lessened or eliminated by means of pooling agreements, and in this 11.5% were located 16% of their theatre holdings. In an additional 11.5% of the cities, containing 17% of their theatre interests, there was more than one defendant having theatre interests in the city, but the position of one defendant was so dominant relative to the others that competition between them was unsubstantial. In 31% of the cities, containing 44% of their theatre interests, there was competition among the defendants. But the New York neighborhood theatres of Loew and RKO, which are included in reaching the 44% figure, should properly be excluded because there is no competition between Loew and RKO in obtaining pictures for the reasons we have already given. This would reduce the percentage of defendants' theatres which compete with one another to 27.
It appears from the foregoing that the effect of the geographical distribution in cities having a population of more than 100,000 was substantially to limit competition among the major defendants. The details upon which our results have been based appear in the statistical data set forth at the end of the opinion in Appendix 2.
The statistics contained in both Appendix 1 and Appendix 2 are derived from data submitted at the original trial and show the situation in 1945. Since the entry of our original decree, these figures have not been substantially changed as to towns of under 100,000, but have been somewhat changed, principally by the dissolution of pools pursuant to our decree, in the case of cities of more than 100,000. The situation in 1945, however, would seem to be far more important in determining whether violations of the Sherman Anti-Trust Act occurred than the status existing after the defendants had been found guilty of wrongs and were merely taking steps to carry out our remedial decree. For this reason, we have included statistics relating to the conduct of Paramount and RKO, even though the remedies against them are now provided under consent decrees.
The plaintiff contends that the figures as to geographical distribution require a finding that there was an agreement to divide territory, but the evidence indicates that much of the acquisition of theatres was due to the buying up of circuits and that the purchases at least in some of these cases involved competition among certain of the defendants. We, therefore, do not find an agreement to divide territory geographically in the organization of the defendants' theatre circuits, but we do hold that the geographical distribution became a part of a system in which competition was largely absent and *893 the status of which was maintained by fixed runs, clearances and prices, by pooling agreements and joint ownerships among the major defendants, and by cross-licensing which made it necessary that they should work together. The argument of some of the defendants that they had no opportunity to change this geographical status not only seems inherently improbable but affirmatively contradicted by the making of pooling agreements and entering into joint ownerships with one another. Moreover, even in the relatively few areas where more than one of the major defendants had theatres, competition for first-run licensing privileges was generally absent because the defendants customarily adhered to a set method in the distribution and playing of their films. In substantiation of the general picture, the plaintiff has shown, on the basis of a study of four seasons between the years 1936 and 1944, that during this period the privilege of first-run exhibition of a defendant's films was ordinarily transferred from one defendant to another only as the result of dissolution of a theatre operating pool or an arbitrary division of the product known as a "split". The lack of competition which we have described has undoubtedly been induced in large measure by the reliance of the defendants on each other in obtaining pictures for use in their various theatres throughout the country. The defendants were also dependent on one another to obtain theatre outlets for their own pictures, for the best customers of any defendant were ordinarily one or more of the other defendants.
We think that there can hardly be adequate competition among the defendants where such interdependence exists. Moreover, when the defendants were interdependent as to a great part of their activities, it necessarily would affect not only competition among themselves, but with independents. We have already found such effects in the various concerted practices of the defendants which have restricted competition with independents. In our former opinion, we provided for a system of competitive bidding for film in the belief that such a system would sufficiently control the reliance of the major defendants on one another's product and theatres. That system having been rejected by the Supreme Court, we must find some other means of preventing the major companies from being in a state of interdependence which too greatly restricts competition.
One of the chief matters referred to us by the Supreme Court is the effect of vertical integration upon competition in the industry. While vertical integration would not per se violate the Sherman Act, the Supreme Court has made it clear that if such integration is conceived with a specific intent to control the market or creates a power to control the market which is accompanied by an intent to exercise the power, the integration becomes illegal.
We are not satisfied that the plaintiff has shown a calculated scheme to control the market in the conception of the defendants' vertical integration, rather than a purpose to obtain an outlet for their pictures and a supply of film for their theatres. But here we are presented with a conspiracy among the defendants to fix prices, runs and clearances which we have already pointed out was powerfully aided by the system of vertical integration of each of the five major defendants. Such a situation has made the vertical integrations active aids to the conspiracy and has rendered them in this particular case illegal, however innocent they might be in other situations. We do not suggest that every vertically integrated company which engages in restraints of trade or conspiracies will thereby render its vertical integration illegal. The test is whether there is a close relationship between the vertical integration and the illegal practices. Here, the vertical integrations were a definite means of carrying out the restraints and conspiracies we have described. Moreover, we concluded in our prior findings, and the Supreme Court has affirmed our conclusion, that the distribution practices of the defendants constituted an attempt to obtain a monopoly in exhibition forbidden by the Sherman Act, a conclusion which requires the elimination of *894 our Findings 152 and 153, as explained above.
In respect to monopoly power, we think it existed in this case. As we have shown, the defendants were all working together. There was a horizontal conspiracy as to price-fixing, runs and clearances. The vertical integrations aided such a conspiracy at every point. In these circumstances, the defendants must be viewed collectively rather than independently as to the power which they exercised over the market by their theatre holdings. See American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575. The statement in our former opinion that the defendants were to be treated individually is subject to our comments in dealing with Findings 152, 153 and 154. We were then proposing to set up a bidding system which was thought adequately to restore competition and, therefore, to render a treatment of the defendants in the aggregate as irrelevant. We regard such treatment as now necessary.
If viewed collectively, the major defendants owned in 1945 at least 70% of the first-run theatres in the 92 largest cities, and the Supreme Court has noted that they owned 60% of the first-run theatres in cities with populations between 25,000 and 100,000. As distributors, they received approximately 73% of the domestic film rental from the films, except Westerns, distributed in the 1943-44 season. These figures certainly indicate, when coupled with the strategic advantages of vertical integration, a power to exclude competition from these markets when desired. This power might be exercised either against non-affiliated exhibitors or distributors, for the ownership of what was generally the best first-run theatres, coupled with the possession by the defendants of the best pictures, enabled them substantially to control the market. If an intent to exercise the power be thought important, it existed in this case, as we noted above in finding an attempt to monopolize. Our former Finding No. 119 was not made in consideration of first-run theatres but was based on total theatre holdings in the country, of which the theatres owned by the defendants represented but a small fraction. We, therefore, did not take into consideration the monopoly power in respect to first-run theatres, which we have since been directed to consider. Accordingly, our Finding No. 119 is in view of our further consideration misleading and must be vacated.
We may add that what we have said about the power to exclude independents from first-runs in the 92 cities is supported by evidence of actual exclusion which is presented in the Government's original brief, pages 13-14 and 35-40. In many cities, there was complete exclusion of independents and in numerous others a restricted distribution of pictures to independents, at times by only one of the defendants, and at other times by most limited percentages of pictures as compared with the number distributed to affiliated theatres. The facts as to film distribution in the 1943-44 season show that the five major defendants achieved a monopoly of first-run exhibition of the feature films distributed by the five major defendants in about 43 of the 92 cities of over 100,000 and of the feature films distributed by the eight defendants in about 143 of the 320 cities of 25,000 to 100,000. [See Government Exhibits 489, 490, 490(a)]. In addition to the proof of monopoly control in cities of more than 25,000, the plaintiff has produced proof that in approximately 238 towns involving in all but about 17 cases populations of less than 25,000 but having two or more theatres, some single one of the five major defendants, or in about 18 cases two of the defendants, had all the theatres and therefore possessed a complete local monopoly in exhibition. [See Government Exhibit 488]. These figures are subject to some qualifications because of inaccuracy as to a few localities, but for the most part they appear to be correct and to show either total absence of competition or slight competition from drive-ins and theatres in nearby communities. They afford significant additional proof of monopoly control. Accordingly, there was not only the power to exclude which might be exercised at will but an actual exclusion approximating in the aggregate 70% of *895 the first-run theatre market in the 92 largest cities. This percentage is based on the proportions of theatre ownership of the major defendants in these cities as compared with independents. There is certainly no reason to suppose that at least as great a percentage would not exist in favor of the major defendants in the number of feature films distributed on first-run.
Furthermore, the power to fix clearances and runs which we have found existed and was exercised by the major defendants was in itself a power to exclude independents who were competitors, and was accompanied by actual exclusion.
The Remedy.
The Supreme Court has denied the remedy of requiring the defendants to offer films to the highest bidder and has required us to find some other means of obviating the illegal practices and attempted monopoly on the part of the defendants. The latter argue that the injunction issued in our prior decree, supplemented by a prohibition of discrimination against small independents and an adequate arbitration system, would afford a sufficient remedy. Mr. Justice Douglas has in this very case pointed out the inadequacies of an injunction to deal with situations much like the present. In discussing the objections to competitive bidding, he alluded to the fact that the determination of what was the best bid in a given case would depend on a comparison of the theatres and theatre operators desiring a picture, rentals offered, which might be a flat rental for one theatre and a percentage rental for another, and the relative value in respect to the various offers of the clearances and runs proposed. He said: "It would involve the judiciary in the administration of intricate and detailed rules governing priority, period of clearances, length of run, competitive areas, reasonable return, and the like." United States v. Paramount Pictures, Inc., 334 U.S. 131, 163, 68 S.Ct. 915, 932, 92 L. Ed. 1260. Practically all of the same objections would exist if an injunction should be relied on as the only remedy for the abuses which have been found to exist in the case at bar. The effect of such a solution would be to leave the determination of difficult comparisons to the discretion of the very parties who have frequently abused that discretion in the past, or to a detailed supervision by the courts, the burden of which would only be ameliorated by a system of arbitration if and in so far as particular independents having grievances might be willing to adopt it. If we had regarded an injunction as a sufficient remedy, we would not have required a competitive bidding for films in our original opinion.
In United States v. Crescent Amusement Co., 323 U.S. 173, 189-190, 65 S.Ct. 254, 262, 89 L.Ed. 160, Mr. Justice Douglas, in discussing the inadequacy of injunctions and the propriety of divestiture to prevent violations of the Sherman Act, said: "The fact that the companies were affiliated induced joint action and agreement. Common control was one of the instruments in bringing about unity of purpose and unity of action and in making the conspiracy effective. If that affiliation continues, there will be tempting opportunity for these exhibitors to continue to act in combination against the independents. The proclivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in the future. Hence we do not think the District Court abused its discretion in failing to limit the relief to an injunction against future violations. There is no reason why the protection of the public interest should depend solely on that somewhat cumbersome procedure when another effective one is available."
In the Crescent case, the court accordingly affirmed an order of divestiture of stock held by the defendant companies to terminate affiliations and prevent further violations of the Act.
As an injunction is regarded as an insufficient remedy there must, in our opinion, be a divorcement or separation of the business of the defendants as exhibitors of films from their business as producers and distributors. Just as in the Crescent case affiliation was held to furnish the incentive *896 for carrying out the conspiracy that there existed, we find that vertical integration has served a similar purpose in the case at bar.
It is argued that the monopoly power which we have found existed in 1945 as to first-run theatres in the 92 largest cities has ceased to exist and that monopolies in particular localities have been substantially lessened in respect to Loew, Warner, and Fox, by the consent decrees recently entered against Paramount and RKO, by the dissolution of pools and joint interests which has taken place or will take place pursuant to our decree and by changes in distribution practices. Assuming that this is so, nevertheless, we have found that a conspiracy has been maintained through price-fixing, runs and clearances, induced by vertical integration, and that this conspiracy resulted in the exercise of monopoly power. The necessity of terminating such a conspiracy by the three defendants which have not subjected themselves to a consent decree would be unaffected by the present existence or non-existence of a monopoly on their part in first-runs, for the conspiracy is illegal even though the participants may have ceased at least for the time to possess monopoly power. Moreover, the monopoly power might be built up again if the illegal practices were not terminated by divorcement, irrespective of the fact that two of the conspirators have been eliminated from the conspiracy by the consent decrees. Therefore, the divorcement we have determined to order appears to be the only adequate means of terminating the conspiracy and preventing any resurgence of monopoly power on the part of the remaining defendants. Beyond all the above considerations there would seem to be an inherent injustice in allowing defendants to avoid divorcement when they would have been originally subjected to it merely because two of their confederates eliminated themselves from a compulsory decree which would have been based upon the participation of all in the conspiracy.
The defendants further contend that they have changed their distribution practices by arranging for many runs and clearances which are more equitable than before, and that they no longer have any participation in fixing the prices to be charged by a theatre licensee, which are now wholly controlled by the licensees. But the temptation to continue such practices will still be strong, and we cannot regard an injunction as a sufficient preventive for the reasons already stated. Likewise, we cannot know whether the new distribution practices comply with the injunctive provisions of our former decree and do not feel justified in leaving defendants found to be participants heretofore in improper practices free to continue them except for the inadequate injunctive provisions.
We have already held that our Findings 119, 152, 153 and 154 should be vacated. We also hold that Findings 155 and 156 should be vacated as they are incorrect or misleading in view of the elimination as a remedy of competitive bidding and our decision that injunctive relief alone is an insufficient remedy.
The plaintiff asks to have Finding 100 vacated and suggests a substitute. We hold that Finding 100 should be vacated because it is somewhat obscure in its scope and implications, but we do not find sufficient reason for adopting the proposed substitute, which seems to us to be irrelevant to the issues involved.
Since the Supreme Court has eliminated any system of competitive bidding, our Findings 85 and 111 should likewise be vacated.
Joint Interests.
The Supreme Court has asked us to reconsider the dissolution of joint interests between defendants and independents because some partial interests of independents were said to have been held by investors rather than actual or potential exhibitors. Paramount and RKO need not be considered, since they are now subject to the provisions of consent decrees. Fox has obtained an order, agreed to by the plaintiff, dealing with the disposition of all its joint interests, except its partial ownership through its affiliate National Theatres Corporation in Evergreen State Amusement *897 Corporation. Fox contends that evidence offered at the trial after remand shows that one Newman, who had an indirect interest of about 15% in Evergreen, was not an actual or potential theatre operator. He became the president and manager of Evergreen, but that in itself did not make him a co-owner with Fox in that company, and his interest of about 15% seems to us no more than the interest of an investor. Nor do we find any indication that he would have been an independent operator of a theatre but for his investment in Evergreen. Prior to the investment he had been an employee of National and for some seven years had had no ownership in a theatre. In the circumstances, we hold that the interest of Fox in Evergreen need not be dissolved, although it will be subject to a general divorcement like the other theatre holdings of Fox from its distribution business.
In respect to Warner, the plaintiff has consented to an order disposing of all its joint interests. In the case of Loew, the plaintiff has agreed to an order disposing of its joint interest in Buffalo Theatres, Inc., and seems to have approved a stipulation made in open court providing for the disposition of all its other joint interests.
In our opinion the orders and stipulations relating to joint ownerships of Fox, Warner and Loew with independents are sufficient to dispose of all questions arising under the requirement of the Supreme Court that joint interests with actual or potential operators be dissolved. In view of the situation presented by the making of these orders and stipulations, our Findings 115, 116 and 117 should be vacated, and the proposed substituted findings of the plaintiff should be denied.
Franchises.
We are directed by the Supreme Court to reconsider our prior decision prohibiting franchises in all cases, and as an initial step conforming to the Supreme Court's opinion our Finding 89 should be vacated. On reconsideration, we adhere to the view that the three remaining major defendants as well as the three minor defendants should not be allowed to grant franchises except to independents. Such a practice ties up the distribution of films and restricts competition by independents to obtain pictures for what we regard as unnecessarily long periods and has been a method of unlawful discrimination in the past. We hold, however, that any of the defendants may grant franchises to an independent operator, provided that the result thereof will be to enable such independent to compete effectively with theatres affiliated with a defendant or with theatres in the new theatre circuits to be formed pursuant to our order of divorcement. We see no objection to the substituted Finding 89 proposed by the plaintiff and adopt it accordingly.
Clearance.
Our disposition of clearances was in no way altered by the Supreme Court. We think, however, that our Finding 77 was inadvertent and should be modified so as to read as follows, thus conforming to paragraph 4 in Section II of our decree based upon the finding: "A grant of clearance, when not accompanied by a fixing of minimum admission prices or not unduly extended as to area or duration affords a fair protection of the interest of the licensee in the run granted without unreasonably interfering with the interest of the public."
The substitute for Finding 78 proposed by the plaintiff is denied.
Discrimination.
The plaintiff requests cancellation of paragraphs 8 and 9 in Section II of our former decree, which include provisions as to discrimination, and wishes to substitute a flat prohibition against including in licenses made with affiliated exhibitors or circuits of theatres certain contract provisions by which discriminations against small independents and in favor of the large affiliated and unaffiliated circuits were accomplished, as this court stated in Finding 110, affirmed by the Supreme Court. These provisions would only be illegal if inherently discriminatory or used in a discriminatory manner. We think it sufficient to provide, *898 as was done in the Paramount consent decree, that the distributor defendants be enjoined "from licensing any feature for exhibition upon any run in any theatre in any other manner than that each license shall be offered and taken theatre by theatre, solely upon the merits and without discrimination in favor of affiliated theatres, circuit theatres, or others." It may be objected that this is competitive bidding which has been rejected by the Supreme Court, but it neither involves calling for bids nor licensing picture by picture. A group of pictures may be licensed to one who wishes to take them without conditions being imposed that he can obtain one only if he purchases the group. We hold that the request of the plaintiff for the cancellation of paragraph 8 of Section II of the decree should be granted, but paragraph 9 should stand as it is. A new paragraph corresponding with the one we have quoted above from the Paramount consent decree should be substituted for the cancelled paragraph 8.
The Three Minor Defendants.
We can see nothing in the arguments on behalf of these defendants for special treatment except an attempt to revise some of our former findings of fact and conclusions of law which have been affirmed by the Supreme Court. We have already dealt with the questions of franchises and discrimination earlier in this opinion. In respect to road shows, we see no reason for exempting them from the various injunctive provisions of our decree. It is entirely possible for the licensor to license for road shows, so long as it is not done in a discriminatory manner, either at a flat rental or on the basis of some percentage of what the show is thought likely to yield. But it would be unlawful in this, as in the case of other licenses, for the licensor to require a fixed admission price as a condition of the license.
The three minor defendants argue that they should be allowed to retain their old customers irrespective of discrimination and contend that the Supreme Court has indicated that they possess this right. We cannot so interpret the opinion of the Supreme Court. It only presented the argument that, if competitive bidding had been sanctioned, the three minor defendants would lose the relationships they had with old customers and would be at a disadvantage in competing with the more powerful major defendants whose own theatres were not subject to competitive bidding. The system of preferring old customers undoubtedly aided discrimination in the past and served as a ready excuse for a fixed system of runs and clearances and was to that extent unlawful. When separation of the business of distribution from that of the operation of theatres is effected, there will be a favorable market for the three minor defendants in which to license their pictures. This will be not only a compensation for inability to prefer their old customers but apparently a substantial added advantage to them in obtaining a greater opportunity to license their pictures than they had heretofore.
The Decree.
The Supreme Court has asked us to divest any theatres which may be fruits of past illegal restraints or conspiracies. It may appear also to be necessary, irrespective of our general plan of divorcement, to terminate theatre monopolies in certain local situations possessed by any individual defendant or by any new theatre circuit which may be set up under the divorcement decree we propose. The plaintiff has presented insufficient evidence to justify us in disestablishing particular theatres either on the theory of local monopolies or of illegal fruits, and indeed it has formally stated that evidence of illegal fruits is not now available. So far as local monopolies are concerned, the statistics presented by the plaintiff were furnished to support the need for a general divorcement which this opinion has sanctioned and did not precisely reach any situations of local monopoly which may require divestiture of specific theatres. Moreover, certain of the statistics presented by the plaintiff go no farther than the year 1945, and there have been various changes in theatre holdings since that date. Accordingly, consideration of fruits and local monopolies will be suspended *899 in the decree which we shall presently make.
In accordance with the instructions of the Supreme Court it is necessary that the provisions of paragraph 6 in Section III of our former decree in respect to expansion of theatre holdings be vacated. A provision should be substituted in the decree to be entered which enjoins the three exhibitor-defendants and any theatre-holding corporation resulting from the divorcement we propose from acquiring a beneficial interest in any additional theatre unless the acquiring exhibitor-defendant or corporation shall show to the satisfaction of the court, and the court shall first find, that such acquisition will not unduly restrain competition in the exhibition of feature motion pictures.
It is argued by the plaintiff that a limited prohibition of cross-licensing of pictures among the three major defendants should be adopted temporarily. We think such a limitation would be unwarrantedly injurious both to those defendants and to the public. The plaintiff proposes that each major defendant be enjoined from licensing more than half of its films to any of the other defendants pending the completion of divorcement plans in those towns where the plaintiff claims there are no independent theatres or at least no independent first-run theatres. The plaintiff evidently hopes that such a limitation would induce independents to acquire theatres in so-called closed towns. Unless and until that should happen, one or two of the major defendants might be unable to show more than half of their pictures in such towns, and if but one of the major defendants had theatres there, those theatres could show only half of the films of the other two. It is manifest that this limitation upon cross-licensing would injure both the major defendants and the public, who would be deprived of seeing some of the pictures. In addition to this, the selection of the particular pictures in the half which could be licensed would involve some difficulties and might prove in the end to have been unwise, both for the distributor involved and the public interest. Our remedy of divorcement will meet all of the purposes for which the plaintiff is striving. We do not think that its completion will be so delayed as to justify this doubtful and difficult ad interim remedy proposed by the plaintiff.
The arbitration system and the Appeal Board which has been a part of it have been useful in the past and as we understand it have met with the general approval of the plaintiff and of those defendants who have agreed to it. In our opinion it has saved much litigation in the courts and it should be continued. Accordingly, the three major distributor-defendants and any others who are willing to file with the American Arbitration Association their consent to abide by the rules of arbitration and to perform the awards of arbitrators, should be authorized to set up an arbitration system with an accompanying Appeal Board, which will become effective as soon as it may be organized after the decree to be entered in this action shall be made, upon terms to be settled by the court upon notice to the parties to this action.
The decree herein should be settled on notice and should be in accord with what we have said in the foregoing opinion. The terms as to divorcement set forth in the plaintiff's proposed decree seem to us satisfactory, except that the reference to paragraph 10 in Section III relating to joint interests, which we have rejected, should be deleted. We also approve of the further proposal of the plaintiff that the plaintiff and the defendants shall submit plans calling for such divestiture of theatres as may comply with the requirements of the Supreme Court regarding local monopolies and illegal fruits. Any ultimate disposition, however, must await a later order which shall be dependent upon the proof the plaintiff may furnish as to local monopolies and illegal fruits. We may perhaps indulge in the hope that the parties may be able to agree as to the disposition of any such interests, as they have done in the case of joint ownerships.
We do not approve of the provisions limiting cross-licensing pending the completion of divorcement or the provisions relating to dissolution of joint interests with *900 independents, which have been sufficiently provided for in stipulations of the three major defendants and the orders entered thereon to which we have made reference. Our opinion indicates other changes in the decree proposed by the plaintiff, which should be embodied in the amended decree.
We have specified former findings which should be vacated and in some instances have set forth proper substitutes. Further disposition of any findings to be made should await submission by the parties.
*901 Submit proposed amended decree and findings on or before September 20, 1949.
Appendix 1
Summary of Theatre Holdings Major Defendants
Towns Under 100,000 1945
======================================================================================================================================================================================================================
|| Paramount || Fox || Warner || Loew || RKO || Total[**] ||
|| || || || || || ||
|| Towns Theatres || Towns Theatres || Towns Theatres || Towns Theatres || Towns Theatres || Towns Theatres ||
|| | || | || | || | || | || | ||
One deft. owns all affiliated || 438 | 1084 || 163 | 398 || 133 | 263 || 8 | 10 || 21 | 34 || 763 | 1789 ||
theatres in the town || 88% | 87% || 92% | 93% || 86% | 86% || 57% | 59% || 30% | 23% || 91.5% | 88% ||
|| | || | || | || | || | || | ||
The defts. in the town are || 43 | 6 || 1 | || 5 | 5 || 2 | 1 || 39 | 2 || 45 | 14 ||
pooled as to some or all of || | 115[*] || | 1[*] || | 8[*] || | 2[*] || | 108[*] || | 117[*] ||
their theatres || 9% | 10% || .5% | ... || 3% | 4% || 14% | 18% || 60% | 73% || 5.5% | 7% ||
|| | || | || | || | || | || | ||
There is competition between || 13 | 31 || 13 | 29 || 17 | 30 || 4 | 4 || 6 | 6 || 26 | 100 ||
defts. || 3% | 3% || 7.5% | 7% || 11% | 10% || 29% | 23% || 10% | 4% || 3% | 5% ||
||____________|__________________||____________|________________||___________|________________||___________|_______________||__________|________________||____________|_________________||
Totals || 494 | 1121 || 177 | 427 || 155 | 298 || 14 | 15 || 66 | 42 || 834 | 1903 ||
|| | 115[*] || | 1[*] || | 8[*] || | 2[*] || | 108[*] || | 117[*] ||
|| 100% | 100% || 100% | 100% || 100% | 100% || 100% | 100% || 100% | 100% || 100% | 100% ||
Appendix 2
Summary of Theatre Holdings Major Defendants
Towns Over 100,000 1945
===============================================================================================================================================================================================
|| Paramount || Fox || Warner || Loew || RKO || Totals[***] ||
|| || || || || || ||
||Towns Theatres ||Towns Theatres ||Towns Theatres ||Towns Theatres ||Towns Theatres ||Towns Theatres ||
|| || || || || || ||
One deft. owns all affiliated || 20 | 138 || 9 | 70 || 5 | 17 || 4 | 12 || 2 | 19 || 40 | 256 ||
theatres in town || 41% | 39% || 53% | 33% || 19% | 7% || 11% | 8% || 6% | 7% || 46% | 23% ||
|| | || | || | || | || | || | ||
The defts. in the town are || 6 | 15 || -- | -- || 5 | 98 || 1 | || 5 | 2 || 10 | 115 ||
pooled as to some or all of || | 50[*] || | || | 27[*] || | 10[*] || | 35[*] || | 61[*] ||
their theatres || 12% | 18% || | || 19% | 51% || 3% | 7% || 16% | 15% || 11.5% | 16% ||
|| | || | || | || | || | || | ||
Holdings of a deft. or pool || 5 | 53 || 3 | 81 || 2 | 8 || -- | -- || 2 | 1 | || 10 | 165 ||
which dominates affiliates || | 5[*] || | 6[*] || | 4[*] || | || | 9[*] > || | 22[*] ||
in the town [**] || 10% | 17% || 18% | 41% || 8% | 5% || | || 6% | 4% | || | ||
|| | || | || | || | || | : || | ||
Holdings in towns dominated || 4 | 3 || 2 | 2 || 1 | 4 || 9 | 8 || 5 | 5 | || | ||
by another deft. || | || | || | || | || | > || 11.5% | 17% ||
[**] || | 9[*] || | 1[*] || | || | 9[*] || | 1[*] | || | ||
|| | || | || | || | || | || | ||
Holdings where competition || 14 | 71 || 3 | 50 || 13 | 80 || 23 | 104 || 17 | 177 || 27 | 482 ||
exists || | 8[*] || | 1[*] || | 5[*] || | 1[*] || | 7[*] || | 11[*] ||
|| 37% | 26% || 29% | 26% || 54% | 37% || 86% | 85% || 72% | 74% || 31% | 44% ||
||_________|_____________||_________|_____________||_________|______________||_________|_____________||_________|_____________||__________|______________||
Totals || 49 | 280 || 17 | 203 || 26 | 207 || 37 | 124 || 31 | 204 || 87 | 1018 ||
|| | 72[*] || | 8[*] || | 36[*] || | 20[*] || | 52[*] || | 94[*] ||
|| 100% | 100% || 100% | 100% || 100% | 100% || 100% | 100% || 100% | 100% || 100% | 100% ||
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NOTES
[*] Pooling agreements and joint interests among defendants are treated as indistinguishable for the purpose of summarizing geographical distribution.
[*] These theatres were pooled by two defendants. Since each time a theatre was pooled there were two owners involved, the total number of pooled theatre interests was twice the number of theatres pooled. The term "pooled" is here used to include joint ownerships among defendants.
[**] The total number of towns is not necessarily the sum of the towns listed for each of the five defendants, since some towns have theatres owned by more than one individual defendant and such towns are therefore duplicated in the individual listings.
[*] These theatres were pooled by two defendants. Since each time a theatre was pooled there were two owners involved, the total number of pooled theatre interests was twice the number of theatres pooled. The term "pooled" is here used to include joint ownerships among defendants.
[**] In arriving at an over-all total of theatres located in towns where one defendant dominated affiliated competition, the theatres of all defendants in such towns have been included because there exists no substantial competition among the defendants in any of them, but in considering records of individual defendants holdings in towns dominated by another defendant were treated as competitive. The ten towns designated as areas where one defendant or a pool dominates all other affiliates are:
Atlanta, Cleveland, Denver, Detroit, Des Moines, Houston, Los Angeles, Paterson, Rochester and San Francisco.
[***] The total number of towns is not necessarily the sum of the towns listed for each of the five defendants, since some towns have theatres owned by more than one individual defendant and such towns are therefore duplicated in the individual listings.
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197 F.3d 1035 (9th Cir. 1999)
WAYNE DALE SCHELL, Petitioner-Appellant,v.LARRY WITEK, Warden; BILL LOCKYER, Attorney General, State of California, Respondents-Appellees.
No. 97-56197
U.S. Court of Appeals for the Ninth Circuit
December 1, 1999
Before: Procter Hug, Jr., Chief Judge.
Prior report: 181 F.3d 1094
ORDER
1
Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The threejudge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
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541 U.S. 1029
IN RE WILLIAMS.
No. 03-9682.
Supreme Court of United States.
May 3, 2004.
1
Petitions for writs of mandamus denied.
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878 S.W.2d 734 (1994)
317 Ark. 454
Bryson JACOBS, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 93-1137.
Supreme Court of Arkansas.
July 5, 1994.
*736 Larry W. Horton, Malvern, for appellant.
Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.
NEWBERN, Justice.
Bryson Jacobs appeals from convictions of two counts of delivery of a controlled substance, two counts of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and being a felon in possession of a firearm. He was sentenced to 116 years imprisonment and a $120,000 fine. Mr. Jacobs contends the Trial Court erred by (1) denying his motion for a directed verdict, (2) refusing to admit into evidence the deposition of co-defendant, Sharlene Wilson, which contained exculpatory statements, (3) refusing to suppress evidence obtained pursuant to a search warrant, (4) admitting the testimony of a witness not listed by the prosecution to testify, (5) instructing the jury on accomplice liability, and (6) denying motions for severance of the charges for trial and for a continuance. There was no reversible error, and the judgment is affirmed.
From the evidence presented, the jury could have concluded that Sharlene Wilson, who was Bryson Jacobs' girlfriend, sold drugs from her home in Malvern. In November 1992 the Seventh Judicial District Drug Task force began investigating Ms. Wilson and, through a confidential informant, purchased drugs from her on three occasions.
The first purchase took place November 22, 1993, when Joann Potts, the confidential informant, went to Ms. Wilson's home to purchase marijuana. Ms. Wilson and Mr. Jacobs were present during the transaction. Ms. Wilson weighed the marijuana and sold it to Ms. Potts for $70. Mr. Jacobs made change for Ms. Potts' $100 bill.
The next transaction occurred the following evening when Ms. Potts returned to Ms. Wilson's home to purchase methamphetamine. Mr. Jacobs again was present during the transaction and told Ms. Potts the drugs were really potent "good stuff" and not to use too much.
The final transaction took place December 30, 1992, when Ms. Potts phoned Ms. Wilson's home to arrange another buy. Ms. Wilson was not at home, but Mr. Jacobs talked to Ms. Potts and told her there were drugs for sale. Ms. Potts called back and arranged a sale of marijuana with Ms. Wilson at a local convenience store parking lot.
Based on these transactions, the Drug Task Force obtained a warrant and searched Ms. Wilson's home on December 31, 1992. During the search they arrested her and Mr. Jacobs and seized various quantities of marijuana and methamphetamine as well as syringes, a smoking pipe, and scales. Firearms also were found, including a pistol which was within Mr. Jacobs' reach when the officers entered. Also several articles of men's clothing and toiletries were found in a bedroom.
Ms. Wilson and Mr. Jacobs were charged with two counts of delivery of a controlled substance for the November 22 and 23 transactions. In a separate information, based on the evidence obtained in the search, they were charged with two counts of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Mr. Jacobs was additionally charged with being a felon in possession of a firearm. These charges formed the bases of Mr. Jacobs' convictions for which he was tried separately from Ms. Wilson and from which he now appeals.
*737 1. Directed verdict motion
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). The question on review is whether there was substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is "evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture." Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). In determining whether substantial evidence exists, we review the evidence in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Mr. Jacobs contends there was insufficient evidence for the jury to return a conviction on any of the charges against him.
a. Delivery of drugs
The evidence recited above showed he played a role in the two illegal drug transactions with which he was charged. According to Ark.Code Ann. § 5-2-403(a),
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it;
* * * * * *
Given Mr. Jacobs presence and his willingness to make change and comment on the quality of the drugs being purchased it is apparent he was aiding or attempting to aid in the consummation of the sales. The evidence thus was sufficient to show he was an accomplice of Ms. Wilson.
b. Possession of drugs, paraphernalia
With respect to the charges of possession of a controlled substance with intent to deliver and drug paraphernalia, Mr. Jacobs contends there was no evidence presented at trial linking him to any of the items seized at Ms. Wilson's home.
Actual or physical possession is not required to prove guilt of possession of a controlled substance. Constructive possession is sufficient and can be implied when the controlled substance is in joint possession of the accused and another. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Joint occupancy of a residence, though, is not sufficient by itself to establish joint possession. The State must show additional facts or circumstances indicating the accused had knowledge and control of the controlled substance. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991).
The evidence presented, when considered altogether, was sufficient for the jury to conclude Mr. Jacobs was in joint possession of the drugs and drug paraphernalia seized at Ms. Wilson's home. The evidence indicated that Mr. Jacobs was a regular fixture at Wilson's home. He was at the house each time Ms. Potts purchased drugs, as well as when the house was raided by the Drug Task Force. Drug Task Force officers further testified the truck Mr. Jacobs drove was consistently seen parked at Ms. Wilson's home during their investigation. Further, the testimony of Drug Task Force officials and Joann Potts concerning Mr. Jacobs' involvement with Ms. Wilson's drug trade sufficiently proved that Mr. Jacobs had knowledge of the items found in Ms. Wilson's home. The testimony that Mr. Jacobs had commented on the quality of the methamphetamine being sold and that he had, on one occasion, offered a marijuana cigarette to Ms. Potts sufficiently proved that he and Ms. Wilson had joint access and joint control of the contraband seized.
c. Possession of firearm
Mr. Jacobs' argument that there was insufficient evidence to prove that he was a felon in possession of a firearm is not preserved for appeal. The trial was bifurcated, so the evidence introduced with respect to this charge was presented after the jury returned guilty verdicts on the other charges.
Mr. Jacobs did not renew his motion for a directed verdict on the firearm charge at the *738 close of the evidence. We have consistently stated a defendant must renew his motion for directed verdict at the close of the evidence presented against him. See Coleman v. State, supra.
2. Admissibility of deposition
Mr. Jacobs attempted to introduce into evidence a deposition given by Sharlene Wilson. This deposition was a sworn statement recorded by a court reporter at Mr. Jacobs' attorney's office. At the time the statement was taken, Ms. Wilson was not represented by an attorney, and no one from the prosecutor's office was present. Ms. Wilson stated that Mr. Jacobs was out of town when the first two drug transactions with Ms. Potts took place and that all the drugs seized belonged to her and not to Mr. Jacobs.
Ms. Wilson refused to testify at Mr. Jacobs' trial, invoking her Fifth Amendment rights. Despite Ms. Wilson's consequent "unavailability," the Trial Court refused to admit the deposition, thus rejecting Mr. Jacobs' argument that the deposition was admissible hearsay under either Ark.R.Evid. 804(b)(1) or 804(b)(3).
In reviewing a Trial Court's ruling on the admissibility of evidence, we will not reverse absent an abuse of discretion. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).
Arkansas Rule of Evidence 804(b) provides that certain items of evidence are not excluded by the hearsay rule. One such item is former testimony described as follows in subsection (1):
Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Rule 804(b)(3) makes a similar exception for a statement against interest. That subsection provides this definition:
Statement against interest. A statement which at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Based on these rules, it does not appear the Trial Court erred in its decision not to admit Ms. Wilson's deposition. Considering Rule 804(b)(1), we note that Ms. Wilson's statement was not made in compliance with the law. Arkansas R.Crim.P. 19 makes no provision for the taking of depositions in a criminal proceeding. Depositions in civil proceedings are taken pursuant to Ark. R.Civ.P. 27, which requires notice to adverse parties in a manner provided by Ark.R.Civ.P. 4. Even if there were some authority to permit this kind of discovery in a criminal proceeding by analogy to Ark.R.Civ.P. 27, we would have to reject this particular deposition in view of the lack of record notice to the prosecution.
With respect to Rule 804(b)(3), Mr. Jacobs offered the Trial Court no corroborating circumstances to indicate the trustworthiness of Ms. Wilson's statement. If the Trial Court had admitted the deposition, it would have given Mr. Jacobs the benefit of Ms. Wilson's testimony while allowing her to invoke the Fifth Amendment to prevent any cross-examination by the State. That would be an unacceptable use of the Fifth Amendment because it would permit defendants to introduce unchallengeable exculpatory statements, and that would not be fair. See Harris v. State, 303 Ark. 233, 795 S.W.2d 55 (1990).
3. Suppression of items seized
Mr. Jacobs next argues the Trial Court erred by not suppressing the evidence *739 against him obtained through the search warrant. Mr. Jacobs contends the warrant was obtained in violation of Ark.R.Crim.P. 13.1, that no return for the warrant was placed in the prosecutor's file, and that there was no evidence presented linking him with any items seized at Ms. Wilson's home. We have addressed in part 1.b. of this opinion the evidence linking Mr. Jacobs to the items found and need not do so again.
a. Rule 13.1
Mr. Jacobs' brief cites the part of Ark.R.Crim.P. 13.1(c), which states a judicial officer acting on an application for a search warrant may examine witnesses on oath and "shall make and keep a fair written summary of the proceedings and the testimony taken before him...." Mr. Jacobs contends this provision was not complied with as the record does not indicate any sworn testimony was presented with the application for the search warrant.
Rule 13.1(b) makes it clear that a search warrant need not be based upon testimony taken before a judicial officer but may be based upon an affidavit presented to him or her as was done in this case. There was thus no testimony to be recorded, nor was there any need for such testimony to comply with the Rule.
b. Warrant return
Mr. Jacobs also argues no return of the search warrant was placed in the prosecutor's file. The record does contain a return of the search warrant, signed and dated by the Trial Court within the time required on the face of the warrant. If the return was not in the prosecutor's file, it should have been there. We note, however, that there was nothing to prevent Mr. Jacobs from inquiring, as a part of his preparation for the trial, as to the whereabouts of the return if it had been a matter of concern to him, and he has demonstrated no prejudice resulting from his inability to peruse the return prior to the trial. See Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).
4. Testimony of Roger Walls
Mr. Jacobs next argues the Trial Court erred in admitting the testimony of Roger Walls. Apparently in response to Mr. Jacobs' attempt to prove he did not reside at Ms. Wilson's home, and thus could not be shown to be in constructive possession of the contraband found there, Mr. Walls testified that when he searched Ms. Wilson's home he found men's toiletries and clothing in the bedroom. The toiletry items were so situated on night stands on either side of a bed as to lead him to conclude that a male person occupied the bedroom with Ms. Wilson.
Mr. Jacobs argues the testimony was inadmissible because Mr. Walls was present in the courtroom the first day of trial, in violation of Ark.R.Evid. 615, and that he was not listed as a witness by the State in accordance with Ark.R.Crim.P. 17.1.
a. Rule 615
Arkansas R.Evid. 615 allows a party to request the Trial Court to exclude witnesses from the courtroom so they cannot hear the testimony of other witnesses. Although Mr. Jacobs argues Mr. Walls' testimony violates the Rule, the record does not indicate the Trial Court was requested to invoke the Rule on the first day of trial when Mr. Walls was present in the courtroom. The Rule thus provides no basis for exclusion of the testimony.
b. Rule 17.1
Arkansas R.Crim.P. 17.1(a)(i) requires the State to notify a defendant of the names and addresses of its witnesses. Mr. Walls, who was a member of the drug task force which conducted the search of Ms. Wilson's home, was not listed but was called by the State to testify in the rebuttal portion of its case. Unless the witness whose name is omitted from the State's list is a true rebuttal witness, which Mr. Walls probably was not, such an omission is reversible error if it results in unfair prejudice to the accused. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).
Mr. Walls was present during the search of Ms. Wilson's home, and his name appeared *740 frequently in the prosecutor's file to which Mr. Jacobs had access. Further, when the State informed the Trial Court of the substance of Mr. Walls' testimony, Mr. Jacobs' attorney responded, "This is just redundant testimony, Judge. They've already got that in."
Lewis v. State, 309 Ark. 392, 831 S.W.2d 145 (1992), presented a similar situation. There, the names of the two witnesses who testified on behalf of the State were in the prosecutor's file along with some 20 others. We said:
Lewis, though, has failed to show how he was prejudiced by any discovery lapses on the prosecutor's part. From the reports delivered to Lewis in advance of trial, it was obvious that the crux of the state's case would be the testimony of the investigating officer and the state chemist [the two who testified]. Failure to list these two witnesses on a separate prospective witness list did not prejudice the defense when the defense had access to their names and the reports, and the witnesses testified to matters in those reports. See Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992). This argument has no merit.
Not only was Mr. Walls' participation in the search known to Mr. Jacobs through the prosecutor's file, Mr. Jacobs' counsel had examined Mr. Walls concerning the arrest of Mr. Jacobs during testimony presented in a pre-trial hearing. We thus cannot say any surprise or other unfair prejudice resulted from the State's failure to list Mr. Walls as a witness, especially if Mr. Walls' testimony was, as characterized by Mr. Jacobs' counsel, merely redundant.
5. Jury instruction on accomplice liability
Mr. Jacobs next contends it was error for the Trial Court to instruct the jury on accomplice liability. He argues he was not charged as an accomplice and it violates his due process rights to convict him of a crime with which he was not charged. We rejected that argument in Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).
6. Motion to quash information
Mr. Jacobs next argues the Trial Court erred by not granting his motion to quash the information against him for two counts of delivery of a controlled substance. He contends the information was improperly based on the affidavit of John Garner, the supervisor of the Drug Task Force. Arkansas Code Ann. § 16-85-302 does not require that an information be accompanied by an affidavit. Mr. Jacobs cites no authority to support his argument, thus we see no reason to address it further. See Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).
7. Motion to sever
Mr. Jacobs next argues the Trial Court erred by not granting his motion to sever the offenses against him. This issue is not preserved for appeal. Arkansas R.Crim.P. 22.1(b) requires a defendant to renew his motion for severance at the close of all evidence. The record indicates that at the close of trial Mr. Jacobs' attorney stated, "I renew all motions, including motion for directed verdict." This attempted renewal of motions, couched in such general terms, was insufficient. See Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994).
8. Motion for continuance
Mr. Jacobs argues the Trial Court erred by not granting his motion for a continuance sought upon learning the State failed to supply him with the list of items submitted to the State Crime Laboratory until just prior to trial. The State responded that the list was sent to Mr. Jacobs' attorney the same day it was received by the prosecutor. The Trial Court concluded the delay did not unfairly prejudice Mr. Jacobs.
A Trial Court's decision to deny a motion for a continuance will not be overturned absent an abuse of discretion. See Ark.R.Crim.P. 27.3; Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). An appellant must show prejudice before this Court will overturn the Trial Court's decision. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993).
Mr. Jacobs argues, as he did to the Trial Court, there were "items missing" on the *741 crime laboratory report which might have been exculpatory. The Trial Court responded that he did not understand the objection and thus it was denied.
Mr. Jacobs does not suggest what the missing items might have been or how he was prejudiced by the introduction into evidence of items listed as having been analyzed by the State Crime Laboratory. We cannot say there was an abuse of discretion in the Trial Court's decision not to grant the motion for a continuance.
Affirmed.
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457 S.E.2d 821 (1995)
217 Ga. App. 354
VILLENUEVE
v.
RICHBOURG et al.
No. A95A0977.
Court of Appeals of Georgia.
April 27, 1995.
*822 Linda J. Carter, Cletus W. Bergen II, Savannah, for appellant.
Jones, Boykin & Associates, Harold J. Cronk, Savannah, for appellees.
BLACKBURN, Judge.
We granted appellant Maria P. Villenueve's application for discretionary appeal to review the trial court's order denying Villenueve's petition for custody of her minor child.
The parents of the minor child, Villenueve and appellee Christopher F. Allen, were divorced in 1984. The final judgment and decree of divorce awarded permanent custody of the child to the appellee, Mary S. Richbourg, the child's paternal great grandmother, allowing Villenueve liberal visitation. Upon entering its final decree of divorce, the trial court found as fact that "[Villenueve and Allen] were married on May 19, 1982. A child, BRANDIN MICHELLE ALLEN, was born October 14, 1982. The child is now age 16 months. The parties separated April 12, 1983. Subject action was filed on September 19, 1983, with the divorce having been granted November 7, 1983, reserving all issues in regard to custody, support and property rights. The parties entered into an Agreement which was made the Temporary Order on October 18, 1983, providing for joint custody of the child pending final disposition. The plaintiff [Allen] is 18 years old, a student at Savannah Vo-Tech studying in the computer sciences field. The defendant [Villenueve] is age 19 years, employed as a floor supervisor at a ladies clothing store. The parties, through counsel, have waived all other findings of fact and conclusions of law." (Emphasis supplied.)
1. Villenueve contends that the trial court erred in denying her petition for change of custody brought by a parent against a non-parent and in failing to require the non-parent to bear the burden of proof where there had never been a finding of unfitness of the parent.
"In every case involving a custody dispute between a parent and a third party, the trial court must first make a determination as to whether the parent has lost his or her right pursuant to OCGA § 19-7-4, or is unfit pursuant to Georgia case law. Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471) (1981); Brooks v. Carson, 194 Ga.App. 365, 368(2) (390 SE2d 859) (1990)." Martini v. Jefferson, 213 Ga.App. 666, 445 S.E.2d 814 (1994). In this regard, as between a parent and a third party, "the parent is entitled to custody of the child unless the third party shows by `clear and convincing evidence' that *823 the parent is unfit or otherwise not entitled to custody.... Additionally, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required." Blackburn v. Blackburn, 249 Ga. 689, 692, 292 S.E.2d 821 (1982). The roles of the parent and the third party reverse, however, upon the award of permanent custody to the third party in consequence of a court proceeding, and, as a result, the parent's prima facie right to custody is lost to the third party. Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (1982). See also Parton v. Haviland, 212 Ga.App. 835, 837, 442 S.E.2d 806 (1994) (Durden applicable "only to a permanent award which was made upon an evidentiary hearing with specific findings as required by Blackburn, supra").
There is here no issue as to whether the trial court by its final judgment and decree of divorce awarded permanent custody of the minor child to Richbourg. We therefore need only determine whether the Blackburn requirement for a finding of unfitness, as above, may be waived.
It is undisputed in the record that the trial court's 1984 final judgment and decree concerning custody, child support and division of property made no determination as to Villenueve's fitness as a parent in awarding Richbourg permanent custody of the minor child in the case sub judice, as such a finding was waived by the parties while represented by counsel. However, but for facts and circumstances adequate to support a finding of parental unfitness,[1] the trial court could not have awarded permanent custody to third party Richbourg. Jefferson, supra. Villenueve did not appeal. Under these circumstances, she cannot be heard to complain for denial of due process, as the requirement for the Blackburn finding of unfitness was waived from the outset and is res judicata as to the then existent facts. Young v. Pearce, 212 Ga. 722, 95 S.E.2d 671 (1956).
2. Villenueve also enumerates that the trial court erred in applying the standard of a material change of circumstances substantially affecting the welfare of the minor child where there has never been a finding of unfitness of the parent. Appellant further contends that the weight of the evidence and the best interest of the child require the return of custody to the mother. We disagree.
Where, as here, the roles of the parent and the third party custodial parent have reversed, conferring the prima facie right to custody upon the third party, "[t]he parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed." Durden, supra. The uncontroverted evidence in this case is that Richbourg has cared for the minor child since infancy; that the minor child is well provided for in a stable environment; and that the minor child is currently enrolled in the gifted academic program at school and is without behavioral problems. Richbourg, age 77, is in good health, drives, gets the minor child to medical and dental appointments, cleans the household, is otherwise able to care for the needs of the child, and enjoys the support[2] of the child's father, Allen, and the child's paternal grandmother, Judy Allen Milford, both of whom live in the Savannah area in the vicinity of Richbourg.
The evidence offered by Villenueve indicates that she has matured and is better able to care for the child than when custody was originally awarded. In this regard, Villenueve has obtained an associate degree in nursing since the time of the divorce. She is currently employed as a nurse, has been *824 married for three and a half years, and owns a home. Additionally, Villenueve's husband has covered the minor child under the major hospitalization policy provided by his employer. These facts do not establish a change in conditions materially affecting the best interest and welfare of the child, nor do they necessarily establish that the best interest of the child requires a change in custody. Durden, supra. The discretion of the trial court will not be disturbed absent a manifest abuse which is not present here. See also Pearce, supra. Accordingly, this enumeration of error is likewise without merit.
Judgment affirmed.
McMURRAY, P.J., and ANDREWS, J., concur.
NOTES
[1] In denying the instant petition for change of custody the trial court found as fact that "[o]n March 5, 1984, upon evidence sufficient to support the court's decision in placing custody of the minor child in a third party, this Court entered an Order awarding custody of the minor child, Brandin Michelle Allen, to Defendant Marie (sic) Richbourg, the child's maternal (sic) great-grandmother."
[2] Although the 1984 divorce decree did not require Allen to pay support for the minor child, he has continuously provided Richbourg "odd-jobs" support and paid for the child's special needs; summer camp, spending money, etc. Milford visits Richbourg once or twice a week and sold Richbourg's residence to her.
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280 F.3d 741
Albert J. MUICK, Plaintiff-Appellant,v.GLENAYRE ELECTRONICS, Defendant-Appellee.
No. 00-3299.
United States Court of Appeals, Seventh Circuit.
Submitted October 9, 2001.
Decided February 6, 2002.
Albert J. Muick (submitted), Barefoot Bay, FL, pro se.
Delmer R. Mitchell (submitted), Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, IL, for Glenayre Electronics.
Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge.
1
Muick, at the time an employee of Glenayre Electronics, was arrested on charges of receiving and possessing child pornography in violation of federal law. At the request of federal law enforcement authorities, Glenayre seized from Muick's work area the laptop computer that it had furnished him for use at work and held it until a warrant to search it could be obtained. He was later convicted and imprisoned. He has now sued his former employer, claiming that Glenayre, acting under color of federal law, seized "proprietary and privileged personal financial and contact data" contained in files in the computer, in violation of the Fourth and Fifth Amendments. He also charges that Glenayre violated rights conferred on him by Illinois law. The district court had diversity as well as supplemental jurisdiction over these claims.
2
The district judge rightly granted summary judgment to Glenayre on Muick's federal claims. The only basis for a federal suit against Glenayre, that is, a suit for damages for violation of a federal constitutional right, is the Bivens doctrine, which the Supreme Court has held to be inapplicable to corporate defendants even when they are acting under color of federal law. Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, ___ L.Ed.2d ___ (2001). And in any event Glenayre was not acting under color of federal law. The federal agents wanted Glenayre to give them the laptop right away but it refused until the search warrant was issued (and so it had no choice) because the computer contained confidential corporate information. It was happy to take the computer away from Muick, for obvious reasons — it doubtless would have done so even if not asked to by the government — but it was not happy to turn the computer over to the government. It held on to it for as long as it could, for purely selfish reasons. An agency relationship is created by voluntary agreement and obligates the agent to act on behalf of the principal. There was no agreement, express or implied, between the government and Glenayre to appoint the latter an agent of the former; nor did Glenayre behave as if there were such an agreement. Cf. Hanania v. Loren-Maltese, 212 F.3d 353, 357 (7th Cir.2000).
3
Anyway Muick had no right of privacy in the computer that Glenayre had lent him for use in the workplace. Not that there can't be a right of privacy (enforceable under the Fourth Amendment if the employer is a public entity, which Glenayre we have just held was not) in employer-owned equipment furnished to an employee for use in his place of employment. If the employer equips the employee's office with a safe or file cabinet or other receptacle in which to keep his private papers, he can assume that the contents of the safe are private. O'Connor v. Ortega, 480 U.S. 709, 718-19, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); Shields v. Burge, 874 F.2d 1201, 1203-04 (7th Cir.1989); Leventhal v. Knapek, 266 F.3d 64, 73-74 (2d Cir.2001); United States v. Taketa, 923 F.2d 665, 673 (9th Cir.1991); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1335 (9th Cir.1987); Gillard v. Schmidt, 579 F.2d 825, 828 (3d Cir.1978); compare United States v. Bilanzich, 771 F.2d 292, 297 (7th Cir.1985). But Glenayre had announced that it could inspect the laptops that it furnished for the use of its employees, and this destroyed any reasonable expectation of privacy that Muick might have had and so scotches his claim. O'Connor v. Ortega, supra, 480 U.S. at 719, 107 S.Ct. 1492; United States v. Simons, 206 F.3d 392, 398-99 (4th Cir.2000); Schowengerdt v. United States, 944 F.2d 483, 488-89 (9th Cir.1991); American Postal Workers Union v. U.S. Postal Service, 871 F.2d 556, 560-61 (6th Cir.1989); see also Gossmeyer v. McDonald, 128 F.3d 481, 490 (7th Cir.1997); Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir.1994); United States v. Bunkers, 521 F.2d 1217, 1220 (9th Cir.1975). The laptops were Glenayre's property and it could attach whatever conditions to their use it wanted to. They didn't have to be reasonable conditions; but the abuse of access to workplace computers is so common (workers being prone to use them as media of gossip, titillation, and other entertainment and distraction) that reserving a right of inspection is so far from being unreasonable that the failure to do so might well be thought irresponsible.
4
Muick's state claims were dismissed under Rule 12(b)(6), that is, for failure to state a claim upon which relief could be granted. He challenges the dismissal of two of these claims, the first for promissory estoppel. He alleges that Glenayre "committed promissory estoppel by assigning and transferring Plaintiff to Defendant's Milton Keynes UK operation." (Milton Keynes is an English city.) Although federal pleading requirements (which of course are applicable even when the claim pleaded arises under state rather than federal law) are lax, a claim of promissory estoppel requires the allegation of a promise, Fischer v. First Chicago Capital Markets, Inc., 195 F.3d 279, 283 (7th Cir.1999); M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1408 (7th Cir.1991), here absent. See also Kiely v. Raytheon Co., 105 F.3d 734, 735-36 (1st Cir.1997) (per curiam).
5
The second state-law claim is for invasion of the branch of the right of privacy that is called the right of seclusion and, among other things, protects an individual from intrusive surveillance. Restatement (Second) of Torts § 652B and comments a, b (1977). It is unsettled whether the common law of Illinois recognizes such a claim, Lovgren v. Citizens First Nat'l Bank of Princeton, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987, 989 (Ill.1989); Johnson v. K Mart Corp., 311 Ill.App.3d 573, 243 Ill.Dec. 591, 723 N.E.2d 1192, 1195 (Ill.App. 2000), but since it is generally recognized we may assume for purposes of this appeal (and only for those purposes) that Illinois will recognize it, especially since Glenayre does not argue the contrary. The claim is unrelated to the contents of the laptop. The complaint alleges only, so far as the claim is concerned, that Glenayre, "without right or cause, hired Investigative Associates, a private agency, to perform surveillance on the Plaintiff, even though he was no longer in the Defendant's employ, thereby violating his common-law Right to Privacy by invading his seclusion." This is conclusional and rather vague, but it places the defendant on notice that it is charged with having hired a detective agency to investigate plaintiff in a manner that infringed his right against intrusive surveillance, and no more was required to withstand a motion to dismiss under Rule 12(b)(6). E.g., Scott v. City of Chicago, 195 F.3d 950, 952 (7th Cir.1999); Ryan v. Mary Immaculate Queen Center, 188 F.3d 857, 860 (7th Cir.1999). The claim may of course have no merit. The surveillance may not have been intrusive, cf. Hall v. InPhoto Surveillance Co., 271 Ill.App.3d 852, 208 Ill.Dec. 251, 649 N.E.2d 83, 85-86 (Ill.App.1995); Kelly v. Franco, 72 Ill. App.3d 642, 28 Ill.Dec. 855, 391 N.E.2d 54, 58 (Ill.App.1979); Bank of Indiana v. Tremunde, 50 Ill.App.3d 480, 8 Ill.Dec. 57, 365 N.E.2d 295, 298 (Ill.App.1977), or Glenayre may have had a valid interest in investigating its former employee. Davis v. Temple, 284 Ill.App.3d 983, 220 Ill.Dec. 593, 673 N.E.2d 737, 744 (Ill.App.1996); Mucklow v. John Marshall Law School, 176 Ill. App.3d 886, 126 Ill.Dec. 314, 531 N.E.2d 941, 946 (Ill.App.1988). Both things may have been true. And the district court (and ultimately we) may decide that the line of authority in the Illinois Appellate Court that rejects the tort of seclusion altogether represents the better guess as to the position the state's highest court will ultimately take. But these are all matters to be taken up in further proceedings on remand. In all other respects the judgment is affirmed.
6
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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391 F.2d 627
WEST VIRGINIA NORTHERN RAILROAD COMPANYv.The UNITED STATES.
No. 277-63.
United States Court of Claims.
March 15, 1968.
Fred R. Tansill, Washington, D. C., attorney of record, for plaintiff.
W. Stephen McConnell, Washington, D. C., with whom was Asst. Atty. Gen. Mitchell Rogovin, for defendant, Philip R. Miller, Washington, D. C., of counsel.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
OPINION
PER CURIAM:
1
This case was referred to Trial Commissioner Mastin G. White with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on June 2, 1967. Exceptions to the commissioner's opinion, findings, and recommendation were filed by plaintiff and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court is in agreement with the opinion, findings, and recommendation of the commissioner, with a very slight modification, it hereby adopts the same as modified as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiff is not entitled to recover and the petition is dismissed.
OPINION OF COMMISSIONER
WHITE, Commissioner:
2
The plaintiff, a West Virginia Corporation, is endeavoring in this action to obtain a refund of a portion of the income tax which the plaintiff paid for the year 1958.
3
It is my opinion that the plaintiff is not entitled to recover.
4
The question which must be answered in the case is whether the Internal Revenue Service acted properly or erroneously in partially disallowing, and assessing a deficiency with respect to, a deduction which the plaintiff claimed in its 1958 income tax return as locomotive rental.1
5
For a proper understanding of the legal question that is before the court for determination, it is necessary to outline the background material in considerable detail.
6
The plaintiff was chartered in 1883. It owns and operates 11 miles of railroad (plus related facilities) running over hilly terrain in West Virginia between the towns of Kingwood, where the plaintiff's headquarters are located, and Tunnelton. The plaintiff's railroad is operated as a feeder road for the Baltimore & Ohio Railroad, and the connection between the two railroads is at Tunnelton.
7
The plaintiff is primarily a carrier of bituminous (or soft) coal. It carries the coal from mines located along its line to the connection with the B&O at Tunnelton. Such shipments comprise approximately 98 percent of the plaintiff's business.
8
The relations between the plaintiff and the B&O are governed by the provisions of an agreement that was first entered into between the two companies in 1911. This agreement has been revised from time to time, but no change of any significance with respect to the issues involved in this case was made in the agreement during the period of time that is pertinent to the present litigation.
9
The plaintiff's income is derived almost wholly from the payments that it receives from the B&O in connection with coal shipments which originate on the plaintiff's line and are turned over to the B&O at Tunnelton for further transportation. The plaintiff is entitled to a certain percentage of the through revenue on each such shipment, under the agreement referred to in the preceding paragraph. If the B&O is the final carrier and effects delivery of a particular shipment, the plaintiff is entitled to 17 percent of the through revenue. On the other hand, if a particular shipment, after being handled by the B&O, is transported by some other carrier or carriers before delivery is affected, the plaintiff's percentage of the through revenue ranges between 15 percent and 3 percent, depending on the circumstances.
10
The B&O effects a settlement with, and issues a check to, the plaintiff on a monthly basis. These steps are accomplished not earlier than the 19th and not later than the 25th of the next succeeding month. However, a settlement is not necessarily limited to the shipments that were transferred by the plaintiff to the B&O during the particular month involved in the settlement. Occasionally, a settlement will include a shipment or shipments transferred by the plaintiff to the B&O months, or even years, prior to the month involved in the settlement.
11
In 1945, all of the plaintiff's stock, consisting of 1,000 shares, was purchased for $100,000 by James Jenkins, Sr., and his four adult children, namely, James Jenkins, Jr., Mrs. Violet Oberhaus, Mrs. Rheta Leimbach, and Mrs. Marguerite Ross. (For the sake of convenience, these five individuals will usually be referred to hereafter in the opinion as "the Jenkins family.")
12
After the Jenkins family purchased the plaintiff's stock in 1945 and gained control of the plaintiff, they made J. D. Everly superintendent of the plaintiff's railroad. Mr. Everly had been employed by the plaintiff since 1942; and it was due principally to his efforts that the Jenkins family had become interested in the plaintiff.
13
In 1945, the plaintiff had four Baldwin steam locomotives. The oldest of these was about 37 years old, and the newest was about 27 years old. Mr. Everly convinced the Jenkins family, after they acquired the plaintiff's stock, that the plaintiff should dispose of the steam locomotives and that two new diesel locomotives should be acquired to replace them. Action to effectuate this recommendation was taken in 1946. Two identical switching locomotives were purchased by James Jenkins, Sr., at a cost of $89,500 apiece. Each was a 1200 horsepower, diesel, electrically operated locomotive. The ownership of one locomotive was placed in the names of James Jenkins, Jr., and Mrs. Leimbach, each of whom owned a one-half interest in the locomotive; and the ownership of the other locomotive was similarly placed in the names of Mrs. Oberhaus and Mrs. Ross.
14
On June 14, 1946, the plaintiff, as lessee, and the four Jenkins children, as lessors, entered into an agreement for the lease of the two diesel locomotives owned by the four Jenkins children, who were also stockholders of the plaintiff. The locomotive lease provided for the hiring of the two locomotives by the plaintiff from the owners for a term of 5 years at a rental rate of 7½ cents per net ton of freight hauled by the plaintiff over its right-of-way. Under this agreement, the rent for the locomotives was to be computed each month, and payment was to be made by the plaintiff to the owners of the locomotives on the 15th day of the following month. The plaintiff was to maintain the two locomotives in good condition, wear and tear excepted, at the plaintiff's expense. At the end of the lease term, the plaintiff was to deliver the locomotives to the owners in good condition, damage by the elements excepted.
15
Subsequently, the ownership of the two diesel locomotives was transferred to the Jenkins Equipment Company, a partnership composed of the Jenkins family.
16
In addition to owning the plaintiff's stock, the Jenkins family also owned approximately 25,000 acres of coal lands in West Virginia, located about 15 miles from Kingwood. The Jenkins family, trading and doing business as Jenkins Coal & Land Company, a partnership, acquired these coal lands on or about January 9, 1946.
17
In 1950, Ralph R. Lewis (who will usually be referred to hereafter in the opinion as "Mr. Lewis"), a business man and entrepreneur, obtained from the Jenkins family an option to lease or purchase their coal lands in West Virginia. Mr. Lewis had been interested for many years in the development of oil and other natural resources, and he had been endeavoring since the end of World War II to locate a large area of "uncaptured" coal lands, with the idea of having a plant for the generation of electric power built on or near such lands, so that the power plant could utilize the coal as fuel. In connection with this project, Mr. Lewis had been negotiating with the Rural Electrification Administration, which was interested in constructing a power plant near cheap coal in West Virginia. As a result of those contracts, Mr. Lewis had learned of the approximately 25,000 acres of coal lands in West Virginia owned by the Jenkins family.
18
After obtaining the option referred to in the preceding paragraph, Mr. Lewis endeavored to obtain the financing that was necessary in order to consummate the deal for the acquisition of the coal lands from the Jenkins family. During the course of his endeavors, Mr. Lewis came in contact with Mr. Spencer, the president of the Spencer Chemical Company, who became interested in the option that Mr. Lewis had obtained for the leasing or purchase of the coal lands owned by the Jenkins family. When the Jenkins family learned that Mr. Spencer was interested in the proposal, they suggested to Mr. Lewis that he withdraw from the transaction and permit the Spencer Chemical Company to deal directly with the Jenkins family. Mr. Lewis was agreeable to this.
19
Negotiations ensued between the Jenkins family and the Spencer Chemical Company. During the course of the negotiations, it was suggested by the Jenkins family that the proposed transaction should include not only the sale or leasing of the coal lands owned by the Jenkins family, but also the sale of the stock owned by the Jenkins family in the plaintiff railroad.
20
The negotiations between the Jenkins family and the Spencer Chemical Company resulted in the granting of two options by the Jenkins family to the Preston Coal Company, a wholly owned subsidiary of the Spencer Chemical Company. The opinions were dated December 30, 1950.
21
One of the options mentioned in the preceding paragraph granted to the Preston Coal Company the right, exercisable on or before July 1, 1951, to purchase all of the plaintiff's outstanding stock for $500,000, payable $50,000 in cash and the balance in 15 annual installments. This agreement provided that, in the event of the exercise of the option, the optionee would agree to a 25-year extension of the locomotive lease previously referred to, at the existing rental rate of 7½ cents per ton of freight hauled by the plaintiff. However, the stock option agreement further provided that it could be exercised only if the Preston Coal Company also exercised the other option mentioned in the preceding paragraph and further described in the succeeding paragraph.
22
The second option which the Jenkins family granted to the Preston Coal Company on December 30, 1950 conferred on Preston the right to purchase the approximately 25,000 acres of coal lands owned by the Jenkins family at the price of $50 per acre; or, in the alternative, Preston could lease the coal lands at a royalty rate of 10 cents per ton of coal mined and sold, with a stated minimum royalty of $30,000 per year.
23
In consideration of Mr. Lewis' activities in bringing the parties together and in surrendering his prior option on the coal lands owned by the Jenkins family, the Preston Coal Company entered into a letter agreement with Mr. Lewis on January 19, 1951. In this agreement, Preston agreed to pay Mr. Lewis certain royalties if it exercised the coal lands option, and to assign to Mr. Lewis a certain number of shares of the plaintiff's stock if Preston exercised the railroad option. Preston also agreed to assign to Mr. Lewis all of its rights under the two options obtained from the Jenkins family if it should decide not to exercise the options.
24
Subsequently, the Preston Coal Company decided not to exercise the options which it had obtained from the Jenkins family. On March 19, 1951, Preston assigned to Mr. Lewis its entire interest in those agreements.
25
In considering the matter of whether to exercise the options transferred to him by the Preston Coal Company, Mr. Lewis consulted Howard Eavenson, an outstanding coal engineer of Pittsburgh, Pennsylvania. Mr. Eavenson conducted an investigation and then made a report to Mr. Lewis. It was Mr. Eavenson's opinion, as reported to Mr. Lewis, that the coal lands owned by the Jenkins family constituted the largest "uncaptured" coal area in the East; that if an efficient and economical way could be devised to clean the coal from such lands, much of it would be of sufficiently high quality to be sold at favorable prices in the markets along the Eastern seaboard, while the less desirable coal could be sold locally to an electric-power generating plant which, it was understood, was going to be built near Kingwood at Albright, West Virginia, by the Monongahela Power Company; and that, if a feasible cleaning method could be developed, a very profitable operation for the plaintiff in connection with the hauling of the coal would be assured.
26
Mr. Lewis also investigated and familiarized himself with the layout and physical condition of the plaintiff's properties. At the time, the plaintiff's physical facilities included a right-of-way, ties, tracks, rails, fastening switches, crossing signs, an office, an old frame shop building, various buildings used in connection with the maintenance of the right-of-way, and pump houses. Mr. Lewis ascertained that while such properties were not in excellent condition, the plaintiff's superintendent, J. D. Everly, was a competent man who had in mind plans which, if he were permitted to carry them out, would improve the railroad.
27
Mr. Lewis realized that if he were to exercise the options, he would be required to pay $500,000 for the stock of the plaintiff. Mr. Lewis' financial condition at the time was extremely poor. A prior business venture had been unsuccessful, and a judgment had been rendered against him, which had not been satisfied. However, the plaintiff at the time was hauling bituminous coal from 23 mines located along its route, such coal being used primarily by public utilities on the Eastern seaboard, and Mr. Lewis believed that there was a good possibility that the coal mining operations in the vicinity of the plaintiff's line would be very successful in the future, thereby making the plaintiff's railroad operations highly profitable. Also, Mr. Lewis had been informed that the plaintiff had an earned surplus and undistributed profit of almost $300,000 as of January 1, 1951, and that the plaintiff's gross earnings in 1951 would approximate $300,000. Since Mr. Lewis was highly optimistic about future revenues, he regarded the purchase price of $500,000 for the plaintiff's stock as a reasonable one.
28
Mr. Lewis notified the Jenkins family that he intended to exercise both of the options that had been transferred to him by the Preston Coal Company. Thereupon, negotiations were begun between Mr. Lewis and the Jenkins family. The Jenkins family (each of whom then owned 200 shares of the plaintiff's stock) were concerned over Mr. Lewis' poor financial condition, especially in relation to the portion of the railroad option agreement to the effect that, although the purchase price was payable over a 15-year period, with only a $50,000 down payment, the stock was to be turned over to Mr. Lewis immediately, without any additional security. Furthermore, although the railroad option called for installment payments, no promissory note for the unpaid balance was required. The Jenkins family desired the execution by Mr. Lewis of a 15-year promissory note to secure the payment of the 15 annual installments. The Jenkins family also wished to prevent a distribution of the existing surplus while the purchase price remained unpaid. In addition, the Jenkins family desired, as further security for Mr. Lewis' indebtedness to them on the purchase of the plaintiff's stock, that the rental to be paid by the plaintiff for the two diesel locomotives be increased from 7½ cents to 12½ cents per freight ton hauled by the plaintiff, and that the term of the locomotive lease be fixed at 15 years (the same term as the Lewis note), without any right of cancellation by the plaintiff unless by purchase of the locomotives for $387,500.
29
With respect to the option for the purchase or leasing of the coal lands owned by the Jenkins family, the Jenkins family desired that this be changed so as to provide for the leasing of only 19,660.81 acres of such lands for a term of 15 years, but they were agreeable to reducing the minimum annual royalty from $30,000 to $20,000.
30
Mr. Lewis ultimately agreed to the revised terms desired by the Jenkins family, as summarized in the two immediately preceding paragraphs, upon the agreement of the Jenkins family that 5 cents out of the sum of 12½ cents per freight ton that was to be paid by the plaintiff under the locomotive rental agreement, as revised, would be credited by the Jenkins family to the payment of the installments due on the Lewis note (or, if the time should come when no such installment was due, the 5-cent factor would be credited to the payment of the $20,000 minimum annual royalty under Mr. Lewis' lease of the coal lands).
31
The settlement between Mr. Lewis and the Jenkins family, pursuant to the exercise by Mr. Lewis of the options, as revised, for the purchase of the plaintiff's stock and the leasing of the coal lands, was accomplished on September 24, 1951. Several documents were executed at that time to finalize the transaction. As Mr. Lewis personally did not have the necessary funds with which to make the $50,000 down payment on the purchase of the plaintiff's stock and the other financial outlays involved in the transaction between Mr. Lewis and the Jenkins family, the Jenkins family finally agreed to lend Mr. Lewis $90,000, of which the sum of $50,000 was to be used for the down payment on the purchase of the plaintiff's stock, the sum of $20,000 was to be used to pay the minimum annual royalty for the first year under the coal lands lease, and the sum of $20,000 was to be used for expenses. The 15-year promissory note executed by Mr. Lewis covered this $90,000 loan from the Jenkins family, as well as the $450,000 representing the remainder due on the purchase price of the plaintiff's stock, so that the total amount of the promissory note was $540,000. The note stated that the 1,000 shares of the plaintiff's stock would be held as security by the Jenkins family for the payment of the note; and Mr. Lewis also executed an assignment of the stock to the Jenkins family, on the understanding that the assignment could be used in the event of a default by Mr. Lewis.
32
The settlement of September 24, 1951 not only included the execution of documents relating to the acquisition of the plaintiff's stock and the leasing of the coal lands by Mr. Lewis, but a new locomotive lease was also signed as part of the settlement. This new lease was for a term of 15 years, and it provided for the payment by the plaintiff of "rental" at the rate of 12½ cents per ton of freight hauled by the plaintiff. The "rental" payments were to be made on a monthly basis. As previously indicated, the sum of 5 cents out of the basic "rental" rate of 12½ cents per ton was to be credited to the payment of the installments due on Mr. Lewis' promissory note to the Jenkins family in the face amount of $540,000 (or to the payment of the minimum royalty of $20,000 per year under Mr. Lewis' lease of coal lands from the Jenkins family, if the time should come when the promissory note was fully paid).
33
Despite his poor financial condition, Mr. Lewis was not particularly concerned over the $500,000 purchase price for the plaintiff's stock or over the $540,000 note which he signed on September 24, 1951. Although his plans were highly speculative at the time, Mr. Lewis was very optimistic concerning future prospects. On the basis of Howard Eavenson's estimates concerning the quantity of coal along the plaintiff's right-of-way, the likelihood of a feasible plan being devised for the cleaning of the coal, and the prospect of a power plant being constructed at Albright to consume the less desirable coal, Mr. Lewis believed that at least 10 million tons of coal could be mined and hauled over the plaintiff's line during the next 15 years. With 5 cents for each of these tons being credited against the purchase price of the plaintiff's stock, it would thus be possible for Mr. Lewis ultimately to obtain the ownership of the plaintiff's stock without any personal cash outlay, provided the plaintiff could haul enough coal.
34
After September 24, 1951, Mr. Lewis and his group took over the direction and control of the plaintiff. Thereafter, they operated the plaintiff's railroad, retaining the services of J. D. Everly, who was promoted from superintendent to general manager. A number of steps were taken in the process of rehabilitating the physical facilities of the railroad. New rails aggregating 5 miles in length were purchased, rail fixtures were procured, 18,000 new crossties were acquired, improvements were made to existing shop buildings, and a new shop was built. Much work was done in grading the roadbed and straightening curves.
35
Mr. Lewis was able to interest J. R. Maust, of the Maust Coal Company, in the local situation; and that company came into the area and took over a coal mine located adjacent to the plaintiff's line. Under the guidance of Howard Eavenson, Mr. Maust was successful in perfecting a method of cleaning the coal. As a result, a very profitable operation was developed by the Maust Coal Company, which was able to sell the clean coal to utilities along the Eastern seaboard and to sell the coal of poorer quality to the local power plant that had been constructed at Albright by the Monongahela Power Company. The Maust operation was so profitable that several other coal companies followed a similar pattern by establishing coal cleaning plants along the plaintiff's line. This had a materially beneficial effect on the tonnage of coal shipped over the plaintiff's line, and the operation of the railroad became quite profitable. The increase in coal shipments likewise increased the amount of the locomotive "rental"' payments that had to be made by the plaintiff to the Jenkins family at the rate of 12½ cents per ton of freight hauled by the plaintiff.
36
For each month after September 24, 1951, down to and including the first 4 months of 1958, a statement of the number of tons of freight shipped over the plaintiff's railroad was prepared by the plaintiff and sent to the Jenkins family, showing the total amount of the locomotive "rental" due from the plaintiff for the particular month under the locomotive lease, as revised in 1951, at the rate of 12½ cents per ton of freight hauled by the plaintiff, and a division of the total amount into the portion that was attributable to the 7½-cent rate and the portion that was attributable to the 5-cent factor. The part of the statement dividing the total payment due for the particular month into its component parts, calculated on the basis of 7½ cents per ton and 5 cents per ton, was furnished to the Jenkins family so that they would know how much of the monthly payment was to be credited against Mr. Lewis' personal obligation to them. The total amount due for the month was equally divided among the Jenkins family, and five checks were issued to them by the plaintiff.
37
The portions of the monthly locomotive "rental" payments attributable to the 5-cent factor were credited by the Jenkins family against the installments due on the Lewis note, throughout the period from September 24, 1951 through the first 4 months of 1958.
38
As stated earlier in the opinion, the ownership of the locomotives was vested in the Jenkins Equipment Company, a partnership composed of the Jenkins family. In preparing and filing partnership income tax returns for the pertinent years, the Jenkins Equipment Company apportioned the amounts of locomotive "rental" received from the plaintiff during the period from September 24, 1951 through the first 4 months of 1958, using for this purpose the figures shown on the monthly statements submitted by the plaintiff, and declared as gross income from locomotive rental the portions of the monthly payments from the plaintiff attributable to the rate of 7½ cents per ton of freight hauled by the plaintiff. The remaining portions of the monthly payments, calculated on the basis of 5 cents per ton of freight hauled by the plaintiff, were treated as payments on Mr. Lewis' obligation to the Jenkins family and, therefore, were not reported as ordinary income by the Jenkins Equipment Company.
39
Mr. Lewis never personally made any payments to the Jenkins family on account of his obligation to them in the amount of $540,000. Mr. Lewis never expected to make any payments on his obligation to the Jenkins family, but, instead, he expected the plaintiff to satisfy this obligation by payment of the 5-cent factor in the guise of locomotive rental.
40
Because the payments to the Jenkins family from the plaintiff under the locomotive rental agreement, as revised in 1951, were aggregating more than $125,000 per year and were regarded by Mr. Lewis and the plaintiff as being too high, Mr. Lewis and the plaintiff desired to modify such agreement. The Jenkins family expressed their willingness to amend the existing locomotive lease, as they wanted to extend the period of time over which they would continue to receive income.
41
Negotiations along the line referred to in the preceding paragraph resulted in the execution on April 30, 1958 of a series of documents by the Jenkins family, Mr. Lewis and the plaintiff (see findings 40 and 41). One of these documents was a new locomotive lease, which became effective on May 1, 1958 and which provided that the plaintiff would pay to the Jenkins Equipment Company — i. e., the Jenkins family — each month the sum of $3,750 as locomotive "rental," for a period of 15 years commencing in May 1958. It will be noted that the 1958 version of the locomotive rental agreement altered the method of computing each monthly payment, from a per-freight-ton rate to a flat monthly fee of $3,750. Accordingly, beginning in May 1958, the plaintiff paid the sum of $3,750 per month as locomotive "rental." The monthly payments were divided equally among the Jenkins family, five checks being issued to them by the plaintiff each month.
42
After the revision of the locomotive rental agreement effective at the beginning of May 1958, the Jenkins Equipment Company continued, for income tax purposes, to apportion the monthly amounts received from the plaintiff under the 1958 version of the locomotive lease, and reported as ordinary income only 59 percent of the amounts so received. This percentage figure was arrived at by computing the unpaid balance of the Lewis note (after subtracting the credits based on the 5-cent factor under the 1951 version of the locomotive rental agreement) to be $277,308.19 at the end of April 1958, and the value of the 1958 version of the locomotive lease to be $675,000 (12 x $3,750 x 15 years). By dividing the total amount to be paid under the 1958 version of the locomotive lease into the unpaid balance still due on the Lewis note, the result was 41 percent. Thus, 41 percent of each monthly payment received by the Jenkins Equipment Company (i. e., the Jenkins family) under the 1958 version of the locomotive lease was deemed by the Jenkins family to be a payment on Mr. Lewis' personal obligation to the Jenkins family, and 59 percent of each monthly payment was regarded as ordinary income from locomotive rental.
43
The plaintiff, on the other hand, at all relevant times deducted on its Federal income tax returns as locomotive rental the full amounts of the payments made by the plaintiff under the various versions of the locomotive lease.
The Related Litigation
44
In a statutory notice of deficiency which was dated January 24, 1957 and which related to the years 1951, 1952, and 1953, the Internal Revenue Service disallowed the portions of the present plaintiff's deductions for locomotive rental which represented the 5-cent factor under the 1951 version of the locomotive lease. The present plaintiff contested this disallowance in the Tax Court. On October 28, 1959, the Tax Court rendered a decision on the question of whether the portions of the locomotive "rental" payments for 1951-1953 attributable to the 5-cent factor constituted deductible business expenses under Section 23(a) (1) (A) of the Internal Revenue Code of 1939, as amended (26 U.S.C. § 23(a) (1) (A) (1952)). That statutory provision stated (among other things) that in computing net income, "there shall be allowed as deductions * * * [a]11 the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *." The Tax Court answered the question before it in the negative, and held "that respondent [the Commissioner of Internal Revenue] properly disallowed the deduction by petitioner [the present plaintiff] of that portion of the annual payments made by it under the diesel leasing agreement as was represented by the 5-cent-per-freight-ton factor" (West Virginia Northern Railroad Co., 18 TCM 975, 979). The Tax Court's decision was affirmed by the Court of Appeals for the Fourth Circuit in West Virginia Northern Railroad Co. v. Commissioner of Internal Revenue, 282 F.2d 63 (1960); and the present plaintiff's petition for certiorari was denied by the Supreme Court, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961).
45
In a statutory notice of deficiency dated October 10, 1962, the Internal Revenue Service disallowed the portions of the present plaintiff's deductions for locomotive rental which represented the 5-cent factor for the years 1954-1957. Proceedings with respect to that notice of deficiency were instituted by the present plaintiff before the Tax Court, and such proceedings are still pending at the present time.
The Claim for 1958
46
With respect to the year 1958, the Internal Revenue Service issued a deficiency notice based upon the disallowance of the portion of the 1958 deduction claimed by the plaintiff for locomotive rental which represented the 5-cent factor for the first 4 months of the year under the 1951 version of the locomotive lease, and 41 percent of the payments made by the plaintiff as locomotive rental for the last 8 months of 1958 at the rate of $3,750 per month under the 1958 version of the locomotive lease.
47
The plaintiff paid the deficiency assessed for the year 1958, and filed a timely claim for refund. Upon disallowance of the claim by the Internal Revenue Service, the plaintiff instituted the present litigation.
The 5-Cent Factor
48
In view of the Tax Court's 1959 decision to the effect that the portions of the present plaintiff's locomotive "rental" payments for 1951-1953 which were attributable to the 5-cent factor under the 1951 version of the locomotive lease did not constitute deductible business expenses — a decision which the Court of Appeals for the Fourth Circuit affirmed and as to which the Supreme Court denied certiorari — the defendant contends in its brief that the plaintiff is precluded by the doctrine of collateral estoppel (or estoppel by judgment) from relitigating in the present action the issue as to the deductibility of the portions of the plaintiff's locomotive "rental" payments for the first 4 months of 1958 which were attributable to the 5-cent factor under the 1951 version of the locomotive lease. The defendant relies principally on Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), in presenting this argument.
49
With respect to the matter of collateral estoppel, perhaps it should be mentioned that the Tax Court's decision was based upon Section 23(a) (1) (A) of the Internal Revenue Code of 1939, as amended, and that, during the interval between the close of 1953 and the beginning of 1958, the 1939 Code was superseded by the Internal Revenue Code of 1954. However, the 1954 Code contains in Section 162(a) language virtually identical with that previously quoted from Section 23(a) (1) (A) of the 1939 Code.
50
In contending that the doctrine of collateral estoppel is applicable here, the defendant is tardily attempting in its brief to assert an affirmative defense. This matter should have been brought to the attention of the plaintiff and the court in the answer which the defendant filed on November 26, 1963. At that time, Rule 15(b) declared in mandatory language that "In pleading to a preceding pleading, a party shall set forth affirmatively * * * any * * * matter constituting an avoidance or affirmative defense" (emphasis supplied). A similar provision is now contained in Rule 19(b). Therefore, the defendant's attempt in its brief to assert the doctrine of collateral estoppel as an affirmative defense has been made too late in the proceedings.
51
It is interesting to observe that the petition in the present case does not allege that the portions of the plaintiff's locomotive "rental" payments for the first 4 months of 1958 which were attributable to the 5-cent factor constituted deductible business expenses. The plaintiff uses a different terminology for the purposes of the present litigation.
52
In the present case, the plaintiff primarily contends (in count I of the petition) that the payments which it made to the Jenkins family for the first 4 months of 1958 under the provisions of the 1951 locomotive lease constituted "a cost of operations," since the cost of renting the locomotives required for the hauling of shipments over its line was a cost of operating the railroad and, as such, should have been deducted from gross receipts in order to determine gross income, instead of being deducted from gross income in order to determine net income (as the plaintiff actually handled this item in its income tax return for 1958). However, the plaintiff does not explain clearly or convincingly just how "a cost of operations" differs from a business expense that is within the purview of Section 162(a) of the Internal Revenue Code of 1954 (successor to Section 23(a) (1) (A) of the 1939 Code).
53
A readily discernible fallacy underlying the plaintiff's novel contention is that the plaintiff begins with the assumption that the entire 12½ cents which the plaintiff paid to the Jenkins family on every ton of freight hauled over the plaintiff's line during the first 4 months of 1958 constituted remuneration to the Jenkins family for the use of their locomotives by the plaintiff in the operation of the railroad. As the Court of Appeals said in West Virginia Northern Railroad Co. v. Commissioner, supra, 282 F.2d at page 65, substance rather than form normally prevails in matters of taxation, and the taxability of a transaction is determined by its true nature. It is clear from the circumstances surrounding the formulation of the 1951 version of the locomotive lease that, in substance, the 1951 lease provided for the continued payment by the plaintiff of locomotive rental at the rate of 7½ cents per ton of freight hauled, and for the payment by the plaintiff to the Jenkins family of an additional sum of 5 cents per ton toward the discharge of Mr. Lewis' personal obligation to the Jenkins family under instruments other than the locomotive lease.
54
The plaintiff, for approximately 5 years prior to 1951, had been renting the two diesel locomotives from the Jenkins family at a rental rate of 7½ cents per ton of freight hauled by the plaintiff. There is no evidence of any sort in the record tending to show a belief on the part of the Jenkins family that the rental rate of 7½ cents per ton provided insufficient compensation for the use of the locomotives. Rather, the evidence shows that the increase in the rental rate from 7½ cents to 12½ cents per ton was negotiated in 1951 because the Jenkins family desired additional security respecting the ultimate payment by Mr. Lewis of his indebtedness in the amount of $540,000 to the Jenkins family, based largely upon Mr. Lewis' purchase of the plaintiff's stock from the Jenkins family. It was clearly understood by all concerned that the sum of 5 cents out of every 12½ cents paid by the plaintiff to the Jenkins family under the 1951 locomotive lease was to be credited to the payment of the installments due on Mr. Lewis' promissory note to the Jenkins family in the face amount of $540,000 (or, if the time should ever come when no installment was due on the promissory note, the amounts attributable to the 5-cent factor were to be credited to the payment of the $20,000 minimum annual royalty due the Jenkins family under Mr. Lewis' lease of coal lands from them).
55
Thus, in substance, the 5-cent factor was never intended to be remuneration for the use by the plaintiff of the locomotives owned by the Jenkins family. For that reason, it would be wholly unrealistic to regard payments based upon the 5-cent factor as a cost of operating the railroad.
56
Instead, it is clear from the evidence that the provision for the payment of the 5-cent factor was inserted in the 1951 version of the locomotive lease as a means of providing for the discharge of Mr. Lewis' personal obligation to the Jenkins family. An expenditure by a taxpayer (the plaintiff here) to satisfy a personal obligation of a third person (Mr. Lewis) is certainly not a cost of operating the taxpayer's business. Therefore, irrespective of the soundness of the plaintiff's present contention that locomotive rental constituted "a cost of operations" deductible from gross receipts, rather than a business expense deductible from gross income, the fact remains, in so far as the 5-cent factor is concerned, that we are dealing here with payments which, in substance, did not constitute rental or compensation for the use of locomotives.
57
The same fallacy that has been discussed in connection with count I of the petition also underlies the alternative contentions made by the plaintiff in counts II and III of the petition.
58
In count II of the petition, the plaintiff alleges that the amounts paid to the Jenkins family under the 1951 version of the locomotive lease at the rate of 12½ cents per ton of freight hauled over the plaintiff's line represented a carved-out portion of the plaintiff's receipts retained as income by the Jenkins family when they disposed of their stock in the plaintiff to Mr. Lewis; and, accordingly, that the receipts of income from the plaintiff's settling agent, the Baltimore & Ohio Railroad, should be reduced pro rata to eliminate from gross receipts the factor of 12½ cents per ton.
59
In count III of the petition, the plaintiff says that the amounts disbursed to the Jenkins family under the 1951 locomotive lease were tantamount to capital investments in motive power, and, therefore, that the freight revenues subsequently received from the B&O were merely returns of capital or reimbursements of such amounts.
60
With respect to both of the alternative contentions made in counts II and III, the plaintiff ignores the fact that, in substance, the sum of 12½ cents per ton which the plaintiff paid to the Jenkins family under the 1951 locomotive lease on each ton of freight hauled over the plaintiff's line was made up of two separate elements — first, the sum of 7½ cents, which was intended to compensate the Jenkins family for the use of their locomotives as motive power for the hauling of freight over the plaintiff's line, and second, the sum of 5 cents, which was intended as a partial discharge of Mr. Lewis' personal obligation to the Jenkins family under instruments other than the locomotive lease and which did not constitute, in any real sense, compensation for the use of the locomotives. We are not concerned in the present case with the segment of 7½ cents that constituted the true locomotive rental, but with the 5-cent factor, which, in substance, did not constitute any part of the true locomotive rental.
61
It must be concluded, therefore, that the plaintiff has not established any basis on which it could properly be found that the Internal Revenue Service erred in disallowing that portion of the 1958 deduction claimed by the plaintiff as locomotive rental which represented the 5-cent factor for the first 4 months of the year under the 1951 version of the locomotive lease.
The 41-Percent Factor
62
In auditing the plaintiff's income tax return for 1958, the Internal Revenue Service also disallowed the portion of the deduction claimed by the plaintiff as locomotive rental which represented 41 percent of the payments made by the plaintiff to the Jenkins family for the last 8 months of 1958 at the rate of $3,750 per month under the 1958 version of the locomotive lease. In count IV of the petition, the plaintiff asserts that the IRS committed error in this respect, since the plaintiff was no longer obligated, after the first 4 months of 1958, to make payments for the personal benefit of Mr. Lewis.
63
It is true that the new locomotive lease which became effective on May 1, 1958 provided for the payment by the plaintiff to the Jenkins family of a flat monthly fee of $3,750 as locomotive "rental"; that this instrument did not provide expressly for the crediting of any portion of the monthly sum to the payment of Mr. Lewis' personal obligation to the Jenkins family; and that, at the time when the new lease was signed, Mr. Lewis' promissory note to the Jenkins family in the face amount of $540,000 was endorsed by the Jenkins family, "cancelled under a written agreement." However, when all the circumstances of the 1958 settlement are considered, it appears that, in substance, a portion of each monthly payment made by the plaintiff to the Jenkins family under the 1958 version of the locomotive lease should be regarded as a partial discharge of Mr. Lewis' personal obligation to the Jenkins family.
64
The negotiations that led up to the 1958 settlement were initiated because the payments to the Jenkins family from the plaintiff under the 1951 version of the locomotive lease were aggregating more than $125,000 per year and were regarded by Mr. Lewis and the plaintiff as being too high. The Jenkins family were willing to amend the 1951 locomotive lease, provided the new arrangement extended the period of time over which they would continue to receive income. As a result of the negotiations, a written agreement of settlement was executed by the Jenkins family, Mr. Lewis, and the plaintiff on April 30, 1958.
65
The settlement agreement of April 30, 1958 provided (among other things) that the 1951 locomotive lease between the Jenkins family and the plaintiff would be cancelled; that a new locomotive lease would be entered into effective May 1, 1958; that the plaintiff would agree to purchase the two locomotives for $40,000 on or before July 1, 1973, irrespective of the condition of the locomotives; that Mr. Lewis' promissory note in the face amount of $540,000 would be marked "cancelled and settled" and would be delivered, together with the 1,000 shares of the plaintiff's stock, to the First Pennsylvania Bank and Trust Company; and that the bank was to retain possession of the stock under a trust agreement and return the note to Mr. Lewis. The settlement agreement further provided that, upon the completion of all the conditions set out in the agreement, any and all claims arising out of Mr. Lewis' purchase of the plaintiff's stock would be "settled, ended and forever released."
66
A concurrent agreement between the Jenkins family and the First Pennsylvania Banking and Trust Company provided that the bank would hold the 1,000 shares of the plaintiff's stock in trust to secure the performance by the plaintiff of its obligations under the settlement agreement referred to in the preceding paragraph.
67
It was pursuant to the settlement agreement of April 30, 1958 that the new locomotive lease was entered into, providing for the payment by the plaintiff to the Jenkins family of the sum of $3,750 each month as locomotive "rental" for a period of 15 years commencing in May 1958, and Mr. Lewis' note in the face amount of $540,000 was endorsed, "cancelled under a written agreement."
68
Thus, it will be seen that the settlement agreement of April 30, 1958 did not terminate Mr. Lewis' personal obligation to the Jenkins family arising out of the purchase by Mr. Lewis of the plaintiff's stock from the Jenkins family. Instead, such obligation was to remain in effect and the 1,000 shares of the plaintiff's stock were to be withheld from Mr. Lewis (or his assignee) until after the fulfillment of all the conditions established under the settlement agreement of April 30, 1958, including the payment by the plaintiff to the Jenkins family of $3,750 per month as locomotive "rental" for an additional period of 15 years. It was then — and only then — that the claims of the Jenkins family against Mr. Lewis were to be "settled, ended and forever released." Therefore, the conclusion seems inescapable that at least part of each monthly payment under the 1958 version of the locomotive lease was, in substance, intended as a partial satisfaction of Mr. Lewis' personal obligation to the Jenkins family in connection with the purchase of the plaintiff's stock.
69
In determining the portion of the locomotive "rental" payments for the last 8 months of 1958 that represented a partial discharge of Mr. Lewis' personal obligation to the Jenkins family, the Internal Revenue Service compared the balance due on the Lewis note at the end of April 1958 with the total amount payable by the plaintiff under the new locomotive lease that became effective on May 1, 1958, and concluded that 41 percent of the monthly payments under the 1958 locomotive lease represented sums paid by the plaintiff in partial satisfaction of Mr. Lewis' personal obligation to the Jenkins family. This allocation seems reasonable.
70
In any event, the plaintiff, which has the burden of proof in the present suit for a tax refund, has failed to show that the allocation by the IRS was unreasonable.
Notes:
1
Another issue, raised in count V of the petition and relating to locomotive overhaul, was subsequently abandoned by the plaintiff
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6627
NATHANIEL HAROLD GREEN,
Plaintiff – Appellant,
v.
STATE OF SOUTH CAROLINA; COUNTY OF BERKELEY; FAMILY COURT;
PAUL LABARRON; SANDY HOLLAND; JACK A. LANDIS; WAYNE M.
CREECH; JOHN DOE; JANE DOE,
Defendants – Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Terry L. Wooten, District Judge.
(6:10-cv-00396-TLW)
Submitted: August 19, 2010 Decided: August 30, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nathaniel Harold Green, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathaniel Harold Green appeals the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C.
§ 1915(e)(2)(B) (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. See Green v. South Carolina, No. 6:10-
cv-00396-TLW (D.S.C. Mar. 30, 2010). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
2
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130 Ill. App.2d 811 (1970)
263 N.E.2d 713
WILLIAM J. SHIVE, Plaintiff-Appellant,
v.
PHYLLIS SHIVE, Defendant-Appellee.
No. 70-53.
Illinois Appellate Court Fifth District.
October 29, 1970.
William T. Davies, of Elgin, for appellant.
Sam S. Pessin, of Belleville, for appellee.
Order affirmed.
PER CURIAM:
A final decree was entered on September 18, 1969 in the Circuit Court of St. Clair County granting defendant-counterplaintiff Phyllis Shive a *812 divorce and making certain property dispositions, and on October 17, 1969 plaintiff-counter-defendant William J. Shive filed a notice of appeal. Thereafter plaintiff made a motion for an extension of time in which to file the report of proceedings which was granted on December 4, 1969, extending the time 42 days from December 5, 1969 to January 16, 1970. On January 14, 1970 plaintiff filed a motion to amend his notice of appeal and for an additional extension of 60 days to file the report of proceedings to and including March 17, 1970, which was granted on February 4. On March 9, pursuant to motion of defendant, the trial court dismissed plaintiff's appeal for failure to comply with Illinois Supreme Court Rules 303, 309, 323 and 326 and plaintiff appealed.
1, 4 The report of proceedings must be filed in the trial court within 49 days after the filing of the notice of appeal. (Supreme Court Rule 323(b).) The trial court may extend this time for filing for a period not to exceed 42 days, but further extensions may be granted only by the reviewing court. (Supreme Court Rule 323(e).) Since no motion was made in the reviewing court to extend the time for filing the report of proceedings, it should have been filed before January 16, 1970, 91 days after the filing of the notice of appeal, and the trial court's order of February 4, 1970 granting 60 days extension of time in which to file the report of proceedings was without authority and therefore ineffective. (Supreme Court Rule 323(e).) When the appellant fails to file the report of proceedings in the trial court within the extended time as fixed by the rule, the trial court has not only the right but the duty to dismiss the appeal. (People ex rel. McWard v. Wabash R.R., 388 Ill. 312.) Our Supreme Court has also held "that the rules of this court, when established, have the force of law and are binding on the court as well as the litigant, and that where there is a failure to comply with them, the appeal will not be entertained." (In re Estate of Meirink, 11 Ill.2d 561 at 564.) Accordingly, the order of the trial court dismissing plaintiff's appeal is affirmed.
Order affirmed.
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280 S.W.2d 11 (1955)
STATE of Missouri, Plaintiff,
v.
Elmer HARNESS, Defendant.
No. 44706.
Supreme Court of Missouri, Division No. 1.
June 13, 1955.
*12 Ralph P. Johnson, Osceola, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant, Elmer Harness, was convicted of manslaughter in the willful killing of an unborn quick child, and his punishment was assessed by the jury at eight years in the penitentiary. Sections 559.090, and 559.140, RSMo 1949, V.A.M.S. He has appealed from the judgment and sentence.
Defendant was charged by information averring that he "on or about the 29th day of August, 1954, at the said County of St. Clair, State of Missouri, did then and there willfully and unlawfully, feloniously, on purpose and of his malice aforethought, in and upon one Melba Cameron, then and there a pregnant woman, make an assault by striking, beating and jerking the said Melba Cameron, and then and there and thereby feloniously, on purpose, and of his malice aforethought did procure and cause the miscarriage and death of the unborn, quick child of said Melba Cameron, * * *."
The statute, Section 559.090, supra, provides that the "willful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter."
Herein upon appeal defendant contends the trial court erred in failing to sustain defendant's motion for a judgment of acquittal. Defendant urges there was no substantial evidence introduced that he made an assault upon Melba Cameron as charged, and he further urges there was no shown connection between the alleged assault and the death of Melba's child.
Melba Cameron and defendant, although unmarried, had lived together for eleven years. Four children had been born to them. At the time of the events giving rise to the instant charge, defendant and Melba lived in a cabin over by the river in a city park in St. Clair County.
The State introduced evidence tending to show that in the late afternoon of Sunday, August 29, 1954, Melba was sitting in a chair on the river bank. She was holding her youngest child, a baby girl, in her lap. Melba testified that defendant Elmer wanted two dollars, "and I wouldn't give it *13 to him because I needed it for the kids. * * * I was sitting in a chair holding the baby, and he came around behind me and got me by the shirt up here (indicating), and he tried to get the money out of my pocket, but I had it pinned in and he couldn't get it. * * * Well, when the little boy came and got the baby off my lap, why, I got up then; I jerked away from him. * * * I was feeling all right before the scuffle, but it just made me nervous and upset is all." No witness testified that defendant struck Melba. Melba testified that defendant did not strike her. Other witnesses for the State said Melba was "struggling bitterly." She was "disputing with him." He was "ahold of her clothes and arm." The struggle continued for "maybe five (or six) minutes." Two witnesses said they heard the sound of screaming. A little boy took the baby from Melba's lap and ran screaming and yelling toward a cabin occupied by Melba's father, who is "hard hearing." Melba then jerked away from defendant. Defendant "grabbed her again and Rolla Cameron (Melba's father) shoved him away." Elmer wanted two dollars and Melba wouldn't give him the money. After Rolla had pushed Elmer away and had "quieted down the argument and the struggle," Elmer said, "Well, just give me a dollar, then, for gasoline, so I can go on my way."
Two or three days later, a neighbor saw Melba who said she was not well. The witness advised Melba to see a physician. Later, on a Thursday or Friday, a few days (perhaps within the week) after the occurrence on the river bank, Melba came to the home of the witness and said she was in desperate pain. The witness, a practical nurse, saw that Melba was "going into labor pain * * * and took her to the doctor immediately."
Dr. Ruth Seevers, a physician, a witness for the State, testified that she, at the request of the Social Welfare office, had examined Melba during the "latter week in August." Melba was threatened with miscarriage. She was run down, undernourishedbelow par generally. Melba was brought to the home of Dr. Seevers a few days after the occurrence on the river bank. The Doctor saw that Melba was in trouble "with this miscarriage. When I got her down and examined her the baby was already partly born, hanging in the vagina. I finished delivering it. She had quite a hemorrhage." The Doctor was not sure the child breathed, "but it did have some convulsive movements." There were some black or blue discolorations on the child's back and left leg. Such a discoloration usually comes from pressure or a bruise, but it could have been caused by "a lot of things." A miscarriage usually occurs within twenty-four hours after a severe injury, but "there is no hard and fast rule." Melba had suffered at least two miscarriages before.
Having examined the evidence introduced by the State tending to show defendant's guilt of manslaughter, we observe that the question of the substantiality of the evidence (in supporting the issue that the death of the child was the result of injury to Melba) is a close one. But, if it were assumed the death of the child was due to such injury, we are of the opinion the injury was not inflicted in such circumstances as would have sustained a conviction of murder, had the injury resulted in Melba's death. Consequently, we rule that the evidence was insufficient to sustain defendant's conviction of manslaughter as defined by Section 559.090, supra.
Defendant did not assault Melba with a dangerous and deadly weapon, nor was the shown force and nature of the assault upon her such as would support the inference of an intention to kill or to cause great bodily harm. There was no evidence tending to show that defendant even struck Melba, or that the assault was malicious. The State did not introduce or develop evidence supporting the inference of malice. Malice is an essential element of murder. State v. Foster, 355 Mo. 577, 197 S.W.2d 313. It would seem that, had Melba's death resulted from the injury inflicted in the assault and battery upon her, defendant might have been guilty of *14 manslaughter only. If one commits an unlawful assault and battery upon another without malice and death results, the assailant is guilty of manslaughter, although death was not intended and the assault was not of a character likely to result fatally. State v. Frazier, 339 Mo. 966, 98 S.W.2d 707. Although the evidence supports the conclusion that defendant committed an assault and battery upon Melba, the testimony of the State's own witnesses explained the nature of the assault. The testimony shows the assault and battery was in a disputation and wrangle, and a scuffle or struggle over the possession of two dollars. The circumstances as shown in evidence by the State do not tend to support the inference of malice, nor an inference of an intention to kill or to do great bodily harm.
In Williams v. State, 34 Fla. 217, 15 So. 760, the evidence exemplified circumstances supporting a conviction of manslaughter under a statute like Section 559.090, supra. In that case it was shown that the injury to the mother resulting in death of the unborn quick child, was inflicted upon the mother by defendant under such circumstances as would have made it murder, had the injury resulted in the death of the mother, instead, simply, of producing the death of the child. When this is shown the crime of manslaughter, under the statute, is made out. Williams v. State, supra. See also Evans v. People, 49 N.Y. 86. In the Williams case, there was proof that defendant committed an unprovoked and cruel assault and battery upon his wife with a club of such dangerous dimensions as would likely cause death. Defendant's wife at the time was in an advanced stage of pregnancy. The assault and battery was accompanied by threats of defendant to kill the wife if her parents did not take her away. The evidence further showed the premature birth and death, within a few hours after the assault and battery, of the child of which the wife was pregnant.
The judgment should be reversed.
It is so ordered.
COIL and HOLMAN, CC., concur.
PER CURIAM.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.
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885 F.2d 868
Rodrigue Ins. Serv.v.1st Nat'l Bk*
NO. 89-3073
United States Court of Appeals,Fifth Circuit.
AUG 31, 1989
1
Appeal From: E.D.La.
2
REVERSED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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986 F.2d 1413
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Grover DRUMMOND, Plaintiff-Appellant,v.STATE OF MARYLAND, Defendant-Appellee.
No. 92-2367.
United States Court of Appeals,Fourth Circuit.
Submitted: February 1, 1993Decided: February 16, 1993
Appeal from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CA-92-121-K)
Grover Drummond, Appellant Pro Se.
Lucy Adams Cardwell, Office of The Attorney General of Maryland, Baltimore, Maryland, for Appellee.
D.Md.
AFFIRMED.
Before HALL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
Grover Drummond appeals from the district court's order denying relief under 42 U.S.C. § 1983 (1988). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Drummond v. Maryland, No. CA-92-121-K (D. Md. Oct. 6, 1992). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
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J-A09032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTIAN PAROLINE
Appellant No. 812 EDA 2014
Appeal from the Judgment of Sentence entered February 7, 2014
In the Court of Common Pleas of Pike County
Criminal Division at Nos: CP-52-CR-0000399-2013; CP-52-CR-0000402-
2013; and CP-52-CR-0000525-2013
BEFORE: BOWES, DONOHUE, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 10, 2015
Appellant Christian Paroline appeals from the judgment of sentence
entered in the Court of Common Pleas of Pike County (“trial court”), after he
pled guilty to burglary, multiple counts of theft by unlawful taking, and
defiant trespass.1 Upon review, we affirm the original judgment of sentence,
but vacate the amended order of restitution.
On February 7, 2014, following Appellant’s guilty plea to the foregoing
crimes, the trial court sentenced Appellant to an aggregate term of 2 to 5
years’ imprisonment and ordered him to pay $800.00 in restitution.
Appellant did not file any post-sentence motions. On March 7, 2014,
Appellant filed a timely appeal. Upon the trial court’s direction, Appellant
____________________________________________
1
18 Pa.C.S.A. §§ 3502(a)(2), 3921(a), and 3503(b)(1)(ii) respectively.
J-A09032-15
filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
challenging the discretionary aspects of his sentence. On April 8, 2014,
while the appeal was pending, the Commonwealth filed a motion titled
“Recommendation of Restitution” under 18 Pa.C.S.A. § 1106(c)(3),
requesting the trial court to modify the amount of restitution imposed to
include $25,447.59 to the victim Nationwide Insurance (“Nationwide”).
Following a hearing, on May 21, 2014 the trial court granted the
Commonwealth’s modification request. On July 30, 2014, Appellant filed an
amended Rule 1925(b) statement, wherein he included a challenge to the
trial court’s modification of restitution imposed.
On appeal, Appellant raises two issues for our review:
[1.] Whether the [t]rial [c]ourt imposed an excessive maximum
sentence under the circumstances when ordering that
[Appellant] be incarcerated in a State Correctional Facility?
[2.] Whether the [t]rial [c]ourt erred in correcting [Appellant’s]
[s]entencing [o]rder more than 3 months after the imposition of
sentence to provide that [Appellant] pay [r]estitution in the
amount of $25,447.59[?]
Appellant’s Brief at 8.
“Initially, we note that when a defendant enters a guilty plea, he or
she waives all defects and defenses except those concerning the validity of
the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super.
2012) (citation omitted). “Our law presumes that a defendant who enters a
guilty plea was aware of what he was doing. He bears the burden of proving
-2-
J-A09032-15
otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011) (citation omitted). “However, when the plea agreement is open,
containing no bargained for or stated term of sentence, the defendant will
not be precluded from appealing the discretionary aspects of h[is]
sentence.”2 Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super.
1999) (citation omitted).
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa. Super. 2011). Rather, where an appellant challenges the
discretionary aspects of a sentence, an appellant’s appeal should be
considered as a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
____________________________________________
2
The record in this case reveals that Appellant entered into open guilty pleas
to the extent the maximum term of incarceration was subject to the trial
court’s discretion.
-3-
J-A09032-15
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Instantly, we conclude Appellant failed to satisfy the Moury test.
Although Appellant filed a timely notice of appeal, he did not preserve his
discretionary aspects sentencing challenge either at sentencing or in a post-
sentence motion. See Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa.
Super. 2014) (Appellate review of discretionary aspects of sentencing claims
unavailable when the claims were not raised at sentencing or in a post-
sentence motion); see also Commonwealth v. Griffin, 65 A.3d 932, 935
(Pa. Super. 2013) (“Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed.”), appeal denied, 76 A.3d 538
(Pa. 2013). Accordingly, Appellant’s discretionary aspects of sentence claim
is waived.
-4-
J-A09032-15
Appellant next argues the trial court erred in modifying the amount of
restitution imposed three months after the judgment of sentence. 3 The crux
of Appellant’s argument is that the Commonwealth should have known about
the amount of restitution sought by Nationwide at the time of sentencing.
We, however, need not address this argument.
We recently determined in Commonwealth v. Weathers, 95 A.3d
908, 912 (Pa. Super. 2014), that a trial court is divested of jurisdiction to
modify the amount of restitution imposed while an appeal from the
judgment of sentence is pending. The Weathers Court reasoned:
Despite the “at any time” language of section 1106(c)(3), we are
compelled to conclude that in this case the trial court did not
have jurisdiction to modify the order of restitution due to
Appellant’s timely filing of a notice of appeal. While neither the
Commonwealth nor Appellant focus on the jurisdictional
implications of Appellant’s filing of a notice of appeal, it is well
established that “questions of jurisdiction may be raised sua
sponte.” See Commonwealth v. Coolbaugh, 770 A.2d 788,
791 (Pa. Super. 2001) (internal citation omitted). After the trial
court denied Appellant’s post-sentence motion, Appellant filed a
timely notice of appeal on April 19, 2013. At that point, the trial
court no longer had jurisdiction to proceed in this matter. See
Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these
rules, after an appeal is taken or review of a quasijudicial order
is sought, the trial court or other government unit may no longer
proceed further in the matter.”); Commonwealth v. Ledoux,
768 A.2d 1124, 1125 (Pa. Super. 2001) (“Jurisdiction is vested
in the Superior Court upon the filing of a timely notice of
appeal.”). Nevertheless, the trial court entered an order
amending the amount of restitution on June 3, 2013. Despite
the flexibility granted to the court to amend orders of restitution
under section 1106(c)(3), here the court could not modify the
____________________________________________
3
Because such an argument relates to the legality of sentence, our standard
of review is be de novo and our scope of review is plenary. See
Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014).
-5-
J-A09032-15
order of restitution during a period when it did not have
jurisdiction over the case.
Weathers, 95 A.3d at 912 (footnotes omitted). As a result, the Weathers
Court vacated the trial court’s amended order of restitution, with instructions
that “the trial court may subsequently amend the order of restitution when it
regains jurisdiction, following the conclusion of this appeal, provided that the
court states its reasons for doing so as a matter of record.” Id. at 913.
The case sub judice is similar to Weathers to the extent the trial court
modified the amount of restitution imposed after an appeal had been filed.
Here, as stated earlier, Appellant appealed the judgment of sentence on
March 7, 2014, and 75 days later on May 21, 2014, the trial court issued an
order modifying restitution. Under Weathers, the trial court did not have
jurisdiction to modify the amount of restitution while Appellant’s appeal was
pending in this Court. Accordingly, we vacate the trial court’s May 21, 2014
order modifying the amount of restitution. Under Section 1106(c)(3),
however, the trial may subsequently modify the amount of restitution
imposed when it regains jurisdiction, following the conclusion of this appeal,
provided that the court states its reasons for doing so as a matter of record.
See Weathers, supra.
Judgement of sentence affirmed. May 21, 2014 order of restitution
vacated. Jurisdiction relinquished.
-6-
J-A09032-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
-7-
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DAVID EARL JONES, )
)
Petitioner, )
v. ) Civil Action No. 10-1086 (PLF)
)
RONNIE HOLT, )
)
Respondent. )
____________________________________)
OPINION
David Earl Jones, a prisoner who was convicted of first degree murder and other
crimes in the Superior Court of the District of Columbia, has filed a pro se petition for a writ of
habeas corpus challenging his imprisonment under 28 U.S.C. § 2254. Mr. Jones also moved for
an evidentiary hearing, a request that the Court denied upon concluding that he was barred from
obtaining a such a hearing by 28 U.S.C. § 2254(e)(2). See Memorandum Opinion, Jones v. Holt
(Sept. 30, 2011) [Dkt. No. 9]. Presently before the Court is a motion by Mr. Jones to reconsider
the denial of his request for an evidentiary hearing, as well as a motion by the respondent to
dismiss Mr. Jones’ habeas petition. For the reasons stated below, the Court will deny Mr. Jones’
motion to reconsider and grant the respondent’s motion to dismiss.1
1
The papers filed in connection with this matter include: petitioner’s petition for a
writ of habeas corpus (“Pet.”) [Dkt. No. 1]; respondent’s motion to dismiss the petition (“Mot.”)
[Dkt. No. 4]; respondent’s memorandum in support of his motion to dismiss and in opposition to
the petition (“Mem.”) [Dkt. No. 4-2]; petitioner’s response (“Resp.”) [Dkt. No. 5]; petitioner’s
motion for an evidentiary hearing (“Mot. Ev.”) [Dkt. No. 6]; petitioner’s motion for
reconsideration (“Mot. Recons.”) [Dkt. No. 11]; and petitioner’s supplement to his motion for
reconsideration (“Supp.”) [Dkt. No. 12].
I. BACKGROUND
Mr. Jones was convicted in the Superior Court of the District of Columbia in 2001
of first degree murder while armed (D.C. Code §§ 22-2101, 22-4502), second degree murder
while armed (D.C. Code § 22-2103), two counts of possession of a firearm during a crime of
violence (D.C. Code § 22-4504(b)), and related weapons offenses. See Mem. Att. F at 1; Mem.
Att. G at 1. His conviction and sentence were upheld on direct appeal by the District of
Columbia Court of Appeals in June 2007. See Mem. Att. F. While his direct appeal was
pending, Mr. Jones initiated collateral proceedings under D.C. Code § 23-110 to vacate and set
aside the judgment due to ineffective assistance of trial counsel. Mem. Att. A at 3.2 The
Superior Court denied Mr. Jones’ Section 23-110 motion in September 2008, see Mem. Att. C,
and this denial was affirmed by the D.C. Court of Appeals in November 2009. See Mem. Att. G.
In April 2010, Mr. Jones filed a motion in the D.C. Court of Appeals to recall the
mandate in his direct appeal, alleging ineffective assistance of appellate counsel. See Mem.
Att. H. The court of appeals denied the motion in a one-sentence per curiam order without
requesting a response from the government. See Mem. Att. I at 8; Order, Jones v. United States,
No. 01-CF-1186 (D.C. May 26, 2010).
Shortly after the denial of his motion to recall the mandate, Mr. Jones filed a
petition for a writ of habeas corpus in this Court, advancing the same claims of ineffective
assistance of appellate counsel that he pursued in his motion to recall the mandate. See Pet.
According to Mr. Jones, his counsel on direct appeal rendered ineffective assistance by not
2
D.C. Code § 23-110 establishes a remedy analogous to 28 U.S.C. § 2255 through
which prisoners sentenced in D.C. Superior Court may challenge their convictions or sentences.
See Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998).
2
developing and presenting claims that Mr. Jones’ trial counsel was ineffective for failing to argue
(1) for an intoxication defense, and (2) that only one charge of possession of a firearm during a
crime of violence could arise from the two murders of which Mr. Jones was convicted. Id. at
5A-5B.
II. DISCUSSION
A. Evidentiary Hearing
Mr. Jones has moved the Court to reconsider its decision denying his motion for
an evidentiary hearing. See Mot. Recons. Mr. Jones previously argued that an evidentiary
hearing was necessary to investigate one of his two claims: that his appellate counsel was
ineffective for failing to raise on direct appeal the purported ineffectiveness of his trial counsel’s
failure to pursue an intoxication defense. See Mot. Evid. at 2.
1. The Court’s Earlier Decision
The Court denied Mr. Jones’ motion upon concluding that 28 U.S.C. § 2254(e)(2)
barred the Court from conducting such a hearing. That section provides that if a habeas
petitioner “has failed to develop the factual basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim,” unless one of two criteria is met. 28 U.S.C.
§ 2254(e)(2)(A).3 The Court concluded that Mr. Jones had failed to develop the factual basis of
3
The claim must rely on “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable,” or on “a
factual predicate that could not have been previously discovered through the exercise of due
diligence.” 28 U.S.C. §§ 2254(e)(2)(A). The statute further requires that, even where one of
these two criteria are met, “the facts underlying the claim [must] be sufficient to establish by
clear and convincing evidence that but for constitutional error, no reasonable factfinder would
3
his claim in the District of Columbia courts and that this Court therefore was prohibited by
Section 2254(e)(2) from conducting an evidentiary hearing on the matter.
The Court reasoned as follows: Mr. Jones had the opportunity to pursue his
ineffectiveness of appellate counsel claim by filing a motion to recall the court of appeals’
mandate. See Reyes v. Rios, 432 F. Supp. 2d 1, 3 (D.D.C. 2006) (“In the District of Columbia,
challenges to the effectiveness of appellate counsel are properly raised through a motion to recall
the Court of Appeals’ mandate.”) (citing Watson v. United States, 536 A.2d 1056, 1060 (D.C.
1987)); Hardy v. United States, 988 A.2d 950, 961 (D.C. 2010) (stating that claims of ineffective
assistance of appellate counsel “must be litigated as an independent claim, which requires a recall
of the mandate of the direct appeal”). “Any motion to recall the mandate,” however, “must be
filed within 180 days from the issuance of the mandate.” D.C. APP . R. 41(f). Although Mr.
Jones attempted to develop the factual basis of his claim in the District of Columbia courts by
filing a motion to recall the mandate advancing that claim, he did not do so until nearly three
years after the mandate issued. See Mem. Att. H at 2; Mem. Att. I at 8. The court of appeals
summarily denied his motion five weeks after it was filed in a one-sentence per curiam order.
See Mem. Att. I at 8.4
In view of these facts, this Court wrote, “Mr. Jones’ motion was apparently denied
because it was procedurally time-barred.” Memorandum Opinion, Jones v. Holt (Sept. 30, 2011),
at 3. Through this apparent procedural default, Mr. Jones forfeited his opportunity to develop a
have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).
4
The order states in full: “On consideration of appellant’s motion to recall the
mandate, it is ORDERED that the motion is denied.” Order, Jones v. United States, No. 01-CF-
1186 (D.C. May 26, 2010).
4
factual record in the District of Columbia courts on his claim. “Had he timely raised the issue
before the District of Columbia Court of Appeals and had that court found it unable to resolve
the issue without a factual record, it presumably would have remanded the case to the Superior
Court to develop one.” Id. at 5; see Watson v. United States, 536 A.2d at 1061 (“[I]n some
cases, the record may be remanded to the trial court under appropriate instructions and time
constraints for a hearing and factual findings, with this court retaining jurisdiction pending the
trial court’s findings and a return of the record.”). A habeas petitioner has “failed” to develop the
factual basis of a claim in state court proceedings when a “lack of diligence . . . attributable to the
prisoner or the prisoner’s counsel” was responsible for the claim not having been developed in
the state courts. Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence will require in the
usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the
manner prescribed by state law.” Id. at 437. Because Mr. Jones, through his extreme
untimeliness, did not “seek an evidentiary hearing in state court in the manner prescribed by state
law,” and thus did not exhibit the “minimum” level of diligence required to develop a factual
record on his claim, id., this Court found itself precluded from holding an evidentiary hearing on
that claim, because neither exception to this rule provided in Section 2254(e)(2)(A) applied.
Memorandum Opinion, Jones v. Holt (Sept. 30, 2011), at 5.
2. Procedural Default or Merits Determination?
Seeking reconsideration of this Court’s decision, Mr. Jones contends that he did
not procedurally default on his claim before the D.C. Court of Appeals, and that the order of that
court denying his motion to recall the mandate was a decision on the merits. Mot. Recons. at
5
1-2. Mr. Jones points out that when he filed his motion to recall the mandate he included with it
a “Motion for Enlargement of Time to File Motion to Recall Mandate.” Id.; see Mem. Att. H at
6-10. He also notes that the rules of the court of appeals provide: “For good cause, the court may
extend the time prescribed by these rules to perform any act, or may permit an act to be done
after that time expires.” D.C. APP . R. 26. Mr. Jones asserts that the court of appeals “did not
deny the petitioner’s motion for an enlargement of time to file his motion to recall the mandate.
In fact, the Court of Appeals went directly to the merits of the motion and simply denied it,
without expressing an opinion.” Mot. Recons. at 2.
It is true that the court of appeals did not deny Mr. Jones’ motion for an
enlargement of time to file, but neither did the court grant the motion, docket it, or acknowledge
it in any way. See Mem. Att. I at 8. Furthermore, the court of appeals has specifically rejected
the claim that “any denial of a motion to recall the mandate is on the merits,” and has made clear
that it employs one-sentence, unexplained orders — like that with which it denied Mr. Jones’
motion — for both procedure-based and merits-based denials. Hardy v. United States, 988 A.2d
950, 961 (D.C. 2010). The record does not definitively reveal, therefore, whether the court of
appeals denied Mr. Jones’ motion based on a procedural bar or on the merits, a question with
implications not only for the present inquiry but also for whether this Court may even entertain
Mr. Jones’ claims on habeas review.
When a state court declines to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement, that judgment rests on independent
and adequate state grounds, and federal habeas review of the prisoner’s claim ordinarily is
precluded. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); see also Cone v. Bell, 556 U.S.
6
449, 465 (2009). On the other hand, a federal court presented with a habeas petition from a state
prisoner whose claim has been denied in the state courts should “presume that there is no
independent and adequate state ground for a state court decision when the decision ‘fairly
appears to rest primarily on federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not clear from the face of the
opinion.’” Coleman v. Thompson, 501 U.S. at 734-35 (quoting Michigan v. Long, 463 U.S.
1032, 1040-41 (1983)). A state court judgment “fairly appears” to rest primarily on federal law
or is interwoven with federal law “in those cases where a federal court has good reason to
question whether there is an independent and adequate state ground for the decision.” Id. at 739.
A federal court considering a habeas petition should presume that the decision constituted a
merits determination unless the state is “explicit in its reliance on a procedural default.” Harris v.
Reed, 489 U.S. 255, 264 (1989); see id. at 263 (procedural default bars federal review only if
state court “clearly and expressly” states that its judgment rests on state procedural bar); see also
Jimenez v. Walker, 458 F.3d 130, 137 (2d Cir. 2006) (explaining that for the presumption of a
merits determination based on federal law to apply, “a federal habeas court must have ‘good
reason’ to doubt that the decision rests on an independent and adequate state ground”) (citing
Coleman v. Thompson, 501 U.S. at 739).
Here, notwithstanding the 180-day deadline for motions to recall the mandate set
forth in D.C. Court of Appeals Rule 41(f), this Court has “good reason” to question whether Mr.
Jones’ motion was denied on the basis of that procedural rule. First, the 180-day deadline is not
jurisdictional but, like other rules of the court, may be excused for good cause, D.C. APP . R.
26(b), which Mr. Jones attempted to demonstrate. See Mem. Att. H at 6-10. Second, the court
7
of appeals has suggested that it grants leniency to pro se movants with respect to this deadline.
See Head v. United States, 626 A.2d 1382, 1384 n.3 (D.C. 1993) (citing Pettaway v. United
States, 390 A.2d 981, 984 (D.C. 1978)). Third, the court of appeals’ method for addressing
motions to recall the mandate includes an initial step in which motions deemed lacking in merit
are denied without further review, which suggests that the prompt and summary denial of Mr.
Jones’ motion does not necessarily indicate procedural default.5 Together, these considerations
suggest that the court of appeals, as likely as not, overlooked the untimeliness of Mr. Jones’
motion and simply determined that his claims lacked merit. At a minimum, this Court has “good
reason” to question whether the alternative was the case. Cf. Coleman v. Thompson, 501 U.S. at
740 (holding that where state procedural rule was “mandatory” and “unwaivable,” and where
government filed motion to dismiss habeas petition based solely on noncompliance with this
procedural rule, which state court granted without explanation, decision appeared to rest
primarily on state law); Jimenez v. Walker, 458 F.3d at138-39 (describing examination of the
“state court’s practice when faced with such a [procedural] bar” as part of the inquiry into
whether a particular decision was procedural or merits-based).
The court of appeals provided no indication that it denied Mr. Jones’ motion
based on Rule 41(f); only the mere existence of that rule creates such an inference. The Harris
5
Upon submission of a motion to recall the mandate, “a motions division must
decide whether or not to grant the motion on the basis that the claim initially has been found by
the court to have sufficient merit.” Hardy v. United States, 988 A.2d at 961 (quoting Head v.
United States, 626 A.2d at 1382). Only if the movant satisfies this “heavy initial burden,” which
requires “set[ting] forth in detail a persuasive case for recall of the mandate,” Watson v. United
States, 536 A.2d at 1060, will the court recall the mandate and proceed to determine whether the
appellant was denied the effective assistance of appellate counsel. Hardy v. United States, 988
A.2d at 961.
8
and Coleman presumption is not overcome, therefore, and this Court concludes that the court of
appeals likely denied Mr. Jones’ motion to recall the mandate — and its federal claims — on the
merits.
Since this Court determines that Mr. Jones’ motion to recall the mandate was not
dismissed on procedural grounds, it cannot conclude that Mr. Jones “failed to develop the factual
basis” of his claims within the meaning of 28 U.S.C. § 2254(e)(2), because the absence of a state
court record is not due to a lack of diligence on Mr. Jones’ part. See Williams v. Taylor, 529
U.S. at 430-34, 437. Section 2254(e)(2) therefore does not bar Mr. Jones from obtaining an
evidentiary hearing.
3. Evidentiary Hearing
Unfortunately for Mr. Jones, however, his request for an evidentiary hearing
nevertheless is barred by a different provision of the habeas statute, 28 U.S.C. § 2254(d). That
section imposes sharp limits on a federal court’s power to grant habeas relief “with respect to any
claim that was adjudicated on the merits in State court proceedings.” Because Mr. Jones’ motion
to recall the mandate — which advanced the same ineffective assistance claims upon which his
habeas petition is based — was denied by the court of appeals “on the merits,” see supra at 7-9,
federal review of the court of appeals’ decision “is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011). As the Supreme Court has explained, the “backward-looking” language of Section
2254(d) “requires an examination of the state-court decision at the time it was made. It follows
that the record under review is limited to the record in existence at that same time i.e., the record
9
before the state court.” Id. This Court’s habeas review therefore is limited to the materials
available to the court of appeals at the time it denied Mr. Jones’ motion to recall the mandate,
and, the Supreme Court has determined, this Court may not conduct an evidentiary hearing to
expand the record. Id. at 1401.6
It may seem unfair to Mr. Jones that he is denied an evidentiary hearing both if the
court of appeals dismissed his motion on procedural grounds and if the court denied it on the
merits. That result, however, is a function of Congress’ efforts to curtail federal habeas review of
state court decisions, in part through a statutory scheme “designed to strongly discourage” the
presentation of new evidence in federal court. Cullen v. Pinholster, 131 S. Ct. at 1401. This
statutory scheme does permit evidentiary hearings in some limited circumstances — just not
those in Mr. Jones’ case. For example, if the court of appeals had dismissed Mr. Jones’ motion
to recall the mandate on procedural grounds for failure to comply with the 180-day deadline, but
if he later became aware of “a factual predicate that could not have been previously discovered
through the exercise of due diligence” or “a new rule of constitutional law, made retroactive to
cases on collateral review,” 28 U.S.C. §§ 2254(e)(2)(A)(i), (ii), then neither Section 2254(d) nor
Section 2254(e)(2) would prevent this Court from conducting an evidentiary hearing. See Cullen
v. Pinholster, 131 S. Ct. at 1401. Or if, based on the existing record, this Court concluded that
the denial of Mr. Jones’ motion to recall the mandate was “contrary to, or involved an
unreasonable application of, clearly established federal law,” 28 U.S.C. § 2254(d)(1), then this
Court could conduct an evidentiary hearing to expand the record before granting relief. See id. at
6
This limiting rule applies even where, as here, the state court summarily denied
the prisoner’s claims. Cullen v. Pinholster, 131 S. Ct. at 1402 (citing Harrington v. Richter, 131
S. Ct. 770, 786 (2011)).
10
1412 (Breyer, J., concurring in part and dissenting in part). The combined effect of Sections
2254(d) and (e)(2) is that prisoners must diligently present their claims in the state courts and,
when seeking federal court review of an adverse determination by those courts, they may rely
only on the record that was presented to the state.
For the foregoing reasons, the Court will deny Mr. Jones’ motion to reconsider the denial
of his request for an evidentiary hearing.
B. Motion to Dismiss
1. Legal Standard
The respondent has filed a motion to dismiss Mr. Jones’ petition “for failure to
state a claim[.]” Mot. at 1. Although the motion and its accompanying memorandum fail to cite
any applicable rules or legal standards governing motions to dismiss, the motion clearly rests on
Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the stated basis for the motion — that
Mr. Jones’ claims are “vague and conclusory,” Mem. at 13 — invokes the familiar standards
established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009), for evaluating the factual adequacy of a complaint.
Rule 12(b)(6) allows dismissal of a complaint if a plaintiff fails “to state a claim
upon which relief can be granted.” FED . R. CIV . P. 12(b)(6). “Federal Rule of Civil Procedure
8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled
to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests[.]’” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a
11
Rule 12(b)(6) motion to dismiss, id., the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. at 678 (quotations omitted). The Court “must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Bell Atlantic
Corp. v. Twombly, 550 U.S. at 555. The complaint “is construed liberally in the [plaintiff’s]
favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can be derived
from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the Court accept the plaintiff’s legal
conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Although the
Court will “read a pro se plaintiff’s complaint liberally,” the pro se complaint nevertheless must
present a claim on which the Court can grant relief. Chandler v. Roche, 215 F. Supp. 2d 166,
168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)).
In deciding a motion to dismiss under Rule 12(b)(6), the Court “may consider the
facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by
reference, and matters about which the [C]ourt may take judicial notice.” Cole v. Boeing Co.,
845 F. Supp. 2d 277, 283 (D.D.C. 2012) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007)). A court may take judicial notice of public records from other
proceedings. Covad Comms. Co. v. Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005).7
7
Respondent’s memorandum freely cites transcripts from Mr. Jones’ trial, e.g.,
Mem. at 5-7, 15, 17, sometimes to support key factual predicates about the crime, but furnishes
the Court with none of these transcripts, stating only that they “will be provided to the Court
upon request.” Mem. at 2. The Court will not rely on any of these transcript citations or
unsupported factual assertions made by the respondent, but only on the publicly available record
12
2. Federal Habeas Corpus Review of Ineffective Assistance Claims
Where a state court has rejected a prisoner’s claim “on the merits,” federal habeas
corpus review of that claim is extremely limited. 28 U.S.C. § 2254(d). The inquiry into whether
a state court has denied a claim “on the merits” for purposes of Section 2254(d) is the same as
the inquiry into whether a state court has denied a claim on substantive or procedural grounds
under the “independent and adequate” doctrine of Harris v. Reed and Coleman v. Thompson.
See Jimenez v. Walker, 458 F.3d at 145. This Court has determined that the District of
Columbia Court of Appeals denied Mr. Jones’ motion to recall the mandate — and the federal
claims advanced in that motion — on the merits rather than on state law procedural grounds. See
supra at 7-9. That determination means that Mr. Jones may obtain federal review of his claims,
see Cone v. Bell, 556 U.S. at 465, 467-69, but only within the restrictive confines of Section
2254(d).
Under Section 2254(d), habeas corpus relief may be granted only if the state
court’s adjudication of the prisoner’s claim resulted in a decision that was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or was “based on an unreasonable determination of the
facts[.]” 28 U.S.C. §§ 2254(d)(1), (2); see Knowles v. Mirzayance, 556 U.S. 111, 121 (2009).
“This is a ‘difficult to meet,’ and ‘highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt.’” Cullen v.
Pinholster, 131 S. Ct. at 1391 (quoting Harrington v. Richter, 131 S. Ct. at 786, and Woodford v.
of Mr. Jones’ case as set forth in the decisions, orders, and docket sheets of the District of
Columbia courts.
13
Visciotti, 537 U.S. 19, 24 (2002)). The petitioner carries the burden of proof. Id. “The
‘unreasonable application’ clause requires the state court decision to be more than incorrect or
erroneous. The state court’s application of clearly established law must be objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citation omitted).
The same is true even where the state court does not provide its reasons for
denying the prisoner’s claims, because “determining whether a state court’s decision resulted
from an unreasonable legal or factual conclusion does not require that there be an opinion from
the state court explaining the state court’s reasoning.” Harrington v. Richter, 131 S. Ct. at 784.
“Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state court to deny
relief.” Id. The federal court “must determine what arguments or theories . . . could have
supporte[d] the state court’s decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
decision of th[e Supreme] Court.” Id. at 786. To succeed in his habeas petition, therefore, Mr.
Jones’ daunting task is to show that there was “no reasonable basis” for the court of appeals to
reject his claims by denying his motion to recall the mandate, and that “fairminded jurists” could
not possibly agree that the court of appeals’ decision is consistent with Supreme Court precedent.
Mr. Jones’ task is made even more daunting by the fact that his claims are for
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).
In order to prevail on such claims, “a defendant must show two things: (1) ‘that counsel’s
performance was deficient,’ and (2) ‘that the deficient performance prejudiced the defense.’”
United States v. Shabban, 612 F.3d 693, 697 (D.C. Cir. 2010) (quoting Strickland v. Washington,
14
466 U.S. at 687). “Deficient” means that “counsel’s representation fell below an objective
standard of reasonableness,” and “prejudice” means that “there is a reasonable probability that,
but for counsel’s . . . errors, the result of the proceeding would have been different.” United
States v. Rodriguez, 676 F.3d 183, 189 (D.C. Cir. 2012) (internal quotations omitted). Success
requires showing that counsel “made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” United States v. Moore, 394 F.3d
925, 931 (D.C. Cir. 2005) (quoting Strickland v. Washington, 466 U.S. at 687). “‘Judicial
scrutiny of counsel’s performance must be highly deferential,’ and ‘a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Knowles v. Mirzayance, 556 U.S. at 124 (quoting Strickland v. Washington, 466
U.S. at 689). “It is up to the defendant to overcome this presumption and show that the
challenged action was not the result of sound strategy.” United States v. Agramonte, 366 F.
Supp. 2d 83, 86 (D.D.C. 2005) (citing Strickland v. Washington, 466 U.S. at 689-90).
A “doubly deferential” standard of judicial review applies “to a Strickland claim
evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. at 123; see Cullen
v. Pinholster, 131 S. Ct. at 1410 (emphasizing this “important ‘doubly deferential’ standard”).
The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an incorrect application of
federal law.” A state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410
(2000)).
15
Mr. Jones’ task is more difficult still — with this Court’s standard of review
approaching triple deference — because he brings claims of ineffective assistance of appellate
counsel, premised on that counsel’s failure to pursue claims of ineffective assistance of trial
counsel. “The analysis by which courts determine whether appellate counsel provided ineffective
assistance is the same as that for trial counsel.” United States v. Agramonte, 366 F. Supp. 2d at
86 (citing Smith v. Robbins, 528 U.S. 259, 289 (2000)). Appellate counsel “need not (and
should not) raise every nonfrivolous claim,” but rather “may select from among them in order to
maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000)
(citing Jones v. Barnes, 463 U.S. 745 (1983)). To prevail, Mr. Jones must show that enough
information was available to appellate counsel suggesting trial counsel’s prejudicial deficiency
(under Strickland’s highly deferential standards) that appellate counsel’s failure to pursue an
ineffectiveness claim was itself prejudicially deficient (again under Strickland’s deferential
standards), and that the D.C. Court of Appeals’ determination to the contrary was not merely
wrong but “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. at 75. Rare indeed will be
the claim that can surmount such hurdles. Mr. Jones’ claims, by contrast, do not survive a
motion to dismiss even without reference to the extra layer of deference required on federal
habeas review.
3. Jones’ Ineffective Assistance of Counsel Claims
a. Factual Background
The District of Columbia Court of Appeals has summarized the events
surrounding Mr. Jones’ conviction as follows:
16
The trial evidence leading to appellant’s conviction arose out of
events occurring in the early morning hours of November 14, 1999 in
an apartment building at 329 Rhode Island Avenue, N.E., in the
District of Columbia. A number of people, including Andrew
Everette, George Jones, Kevin Jeffcoat, and Julian Ogburn, were in
the lobby of the building when appellant and Kelly Winstead entered.
Carrie Carter, who was standing outside of the building, noticed that
appellant was carrying what appeared to be a black gun. When he
entered the lobby, appellant brandished a gun, repeatedly cocking it.
Appellant asked Vernon Dammons, who entered the building after
appellant, whether his gun was “pretty.” Although Dammons agreed
that it was, appellant placed the gun against Dammons’ head, at
which point Winstead stepped between Dammons and appellant,
urging appellant to “cool it.” George Jones then told appellant to
“chill,” and appellant shot him. Appellant then shot Kevin Jeffcoat.
Both victims died as a result of their gunshot wounds. Immediately
after the shootings, Carter saw appellant and Winstead exit the
building and observed appellant stuff a gun into his waistband. Angel
Adams also saw appellant and another man exit the building after the
shootings. The two men entered a car and drove away.
Mem. Att. G at 2.
b. Intoxication Defense
Mr. Jones contends that his appellate counsel rendered ineffective assistance by
failing to pursue a claim that his trial counsel was ineffective for not advancing an intoxication
defense. He has not alleged any facts, however, that suggest ineffectiveness on the part of his
trial counsel, much less that appellate counsel’s failure to pursue such a claim was itself
ineffective. The only supporting fact alleged in Mr. Jones’ petition to support trial counsel’s
alleged ineffectiveness is that “there was evidence in the record that the petitioner and the victims
had been smoking PCP prior to the shooting.” Pet. at 5A. Mr. Jones provides no details of any
kind about this purported evidence — the source and content of which are a complete mystery.
Mr. Jones therefore does not allege facts supporting an inference that trial counsel was
17
ineffective for not pursuing an intoxication defense; still less does he allege facts that, if true,
would mean that his appellate counsel was ineffective for not pursuing this line of attack on
appeal. A pleading that “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’”
does not survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. at 557).
After the respondent highlighted this deficiency in its motion to dismiss, putting
Mr. Jones on notice that the vagueness of his allegations might lead to the dismissal of his
petition, see Mem. at 8, 13-15, Mr. Jones’ response still failed to allege even a shred of concrete
factual support for his bare allegation that evidence of some still-unspecified kind in the record
indicated his PCP use before the shooting. While Mr. Jones offers citations to the transcripts of
his trial, purportedly supporting “the fact that the parties present at the crime scene had been
smoking PCP,” Resp. at 4, he merely reproduces verbatim transcript citations from the
respondent’s motion to dismiss, which were cited as instances where defense counsel at trial
“attempted to impeach the credibility of government witnesses by using prior inconsistent
statements and showing contemporaneous drug use.” Mem. at 7 n.6. Reproducing these
citations without elaboration fails to add the necessary factual specificity.
Mr. Jones also attached an affidavit to his response in an attempt to bolster the
factual underpinnings of his claim. The information in this affidavit was not before the District
of Columbia Court of Appeals when it denied Mr. Jones’ claim, see Mem. Att. H, and such
information should not be considered by this Court on habeas review of that denial. See supra at
9-11. Given Mr. Jones’ pro se status, however, and the fact that the standard form Section 2254
habeas corpus petition that he completed directed him to “[s]ummarize briefly” the facts
18
supporting each ground for relief, Pet. at 4 (emphasis in original), the Court will regard the
content of this affidavit as encompassed within his original petition. The affidavit still offers him
no relief, however. In it, Mr. Jones attests that he “used the drug PCP during the early morning
hours” on the date of the shooting, that he “ha[s] no recollection of shooting” either victim, that
“[n]either [his] trial or appellate counsel asked [him] about [his] PCP use” on that date, and that
he “was never interviewed by [his] appellate counsel regarding the potential areas of ineffective
assistance of [trial] counsel that could have been explored during the pendency of the direct
appeal.” Resp. at 5. Even taking these allegations into consideration, Mr. Jones has alleged no
facts suggesting that trial counsel was on notice of the potential viability of an intoxication
defense. Other than the utterly conclusory assertion that evidence of some sort indicated that Mr.
Jones was smoking PCP, he has stated no facts supporting an inference that trial counsel had
good reason, or any reason, to consider an intoxication defense. Mr. Jones does not claim that he
or anyone else ever told trial counsel about his alleged PCP use, nor does he explain any concrete
reason that trial counsel otherwise should have been aware of it.
Even if there were some indications available to trial counsel that Mr. Jones had
used PCP before the shootings — and again, Mr. Jones has alleged no facts to support such a
conclusion — Mr. Jones has not alleged facts that could support a finding that trial counsel’s
failure to pursue an intoxication defense constituted ineffective assistance, as opposed to “sound
trial strategy.” Strickland v. Washington, 466 U.S. at 689. In the District of Columbia, evidence
of use of alcohol or drugs by itself is not enough to support an intoxication defense. The
evidence required to obtain an intoxication defense instruction “must reveal such a degree of
complete drunkenness that a person is incapable of forming the necessary intent essential to the
19
commission of the crime charged.” Bell v. United States, 950 A.2d 56, 65 (D.C. 2008). “There
must be evidence that the defendant ‘has reached a point of incapacitating intoxication.’” Id.
(quoting Smith v. United States, 309 A.2d 58, 59 (D.C. 1973)). “Conclusory statements” about
the use of a controlled substance are insufficient: “Rather, there must be evidence of the type and
quantity of [the substance] consumed, the length of time during which it was consumed, and the
specific manner in which the consumption made the defendant incapable of acting with specific
intent.” Washington v. United States, 689 A.2d 568, 574 (D.C. 1997).
Presenting evidence about the type and quantity of PCP that Mr. Jones smoked,
the length of time during which it was consumed, and the effect it had upon him, likely would
have required testimony from Mr. Jones and/or Kelly Winstead, with whom Mr. Jones arrived at
the scene of the crime. See id.; Mem. Att. C at 3-6; Mem. Att. G at 2. The perils of putting a
criminal defendant on the stand are well known. As for Mr. Winstead, the Superior Court has
explained that he would have been “an unreliable witness who could have damaged defendant’s
case,” Mem. Att. C at 9, due to his multiple and self-contradictory accounts about his knowledge
of the shootings, his whereabouts at the time, and Mr. Jones’ guilt, id. at 7-9, not to mention his
admission to a detective and later to a grand jury that even if Mr. Jones committed a crime in his
presence Mr. Winstead would not reveal it. Id. at 9.
In light of these considerations, it would hardly be unreasonable as a matter of
strategy for counsel to forego pursuing an intoxication defense if it required potentially crippling
Mr. Jones’ case by putting him or Mr. Winstead on the stand to recount their recollections of the
night of the shootings — especially given that such a defense, at most, could have reduced Mr.
20
Jones’ conviction for first degree murder to second degree murder.8 And regardless of what
evidence may have supported an intoxication defense, the pursuit of such a defense would have
been inherently risky, because adopting such a strategy would implicitly concede that Mr. Jones
shot the two victims.
Courts “must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Strickland v. Washington, 466 U.S. at 689 (internal quotation omitted). Even if all of
Mr. Jones’ allegations are true, they would not overcome this presumption. Mr. Jones cannot
possibly hope, therefore, to rebut the presumption that appellate counsel’s decision not to pursue
an ineffectiveness claim was the result of sound strategy. His pleading therefore fails to state a
claim on which relief can be granted. This result obtains whether or not the Court takes into
account the heightened showing that Mr. Jones ultimately must make to prevail in his petition
under the federal habeas statutes.9
8
See Wheeler v. United States, 832 A.2d 1271, 1273 (D.C. 2003) (“[V]oluntary
intoxication ‘may negative the ability of the defendant to form the specific intent to kill, or the
deliberation and premeditation necessary to constitute first degree murder, in which event there is
a reduction to second degree murder,’” but “it ‘may not reduce murder to voluntary
manslaughter, nor permit an acquittal of murder.’”) (quoting Bishop v. United States, 107 F.2d
297, 302 (1939)); accord Washington v. United States, 689 A.2d at 573.
9
In support of his habeas petition, Mr. Jones also has submitted an affidavit from
Mr. Winstead. See Docket No. 10. The Court cannot consider this affidavit on habeas review, as
it was not before the District of Columbia Court of Appeals, see supra at 9-11, but the facts
alleged therein would not help Mr. Jones in any event. Mr. Winstead attests that he smoked PCP
with Mr. Jones into the morning hours on the day of the shootings, that he later was interviewed
by Mr. Jones’ counsel, that counsel never asked him “about PCP use,” and that “[a]ll [he] was
asked is what did [he] know about the case Mr. Jones was locked up for.” Id. at 1. Mr. Winstead
continues: “I say again as I did before I never saw Mr. Jones do anything that had anything to do
21
c. Merger of Firearm Charges
Along with first and second degree murder, Mr. Jones was convicted of two
counts of possession of a firearm during a crime of violence (“PFCV”). The second ground for
relief in his habeas corpus petition is that his appellate counsel should have brought claims that
his trial counsel was ineffective “for failing to argue that only one possession of a firearm during
a crime of violence charge may result from shooting multiple victims during a single criminal
episode[.]” Pet. at 5A; see id. at 5B. In support, Mr. Jones cites Nixon v. United States, 730
A.2d 145 (D.C. 1999), in which the District of Columbia Court of Appeals held that the rule of
lenity, “under the circumstances presented in [that] case,” required that multiple PFCV charges
be merged where the defendant “fir[ed] simultaneously at several victims” by shooting into a car
containing four people. Id. at 153.
In Stevenson v. United States, 760 A.2d 1034 (D.C. 2000), however, the court of
appeals expounded on the meaning of Nixon and emphasized its limited reach. The court first
reiterated the “general rule” that “where two predicate armed offenses do not merge, a defendant
may be convicted of separate counts of PFCV relating to each offense.” Id. at 1035. It then
described the “limited exception to this approach” fashioned in Nixon, but explained why that
with guns.” Id. These attestations do not offer facts that suggest trial counsel’s ineffectiveness;
therefore they provide no factual basis for such a finding with respect to appellate counsel. Mr.
Winstead states that trial counsel asked him what he knew about the shooting, and — like Mr.
Jones — he pointedly does not claim that he told trial counsel anything about Mr. Jones smoking
PCP or being intoxicated. Instead, he merely states that counsel never asked him about PCP.
But neither his affidavit nor any of Mr. Jones’ own allegations supply any reason for trial counsel
to have made such an inquiry. Nor can Mr. Winstead’s affidavit help Mr. Jones overcome the
presumption that both trial and appellate counsel’s choices were the result of sound trial strategy.
22
“narrow holding,” involving “a ‘single violent act’ with ‘simultaneous’ action . . . does not
encompass the merger of PFCV charges arising out of . . . distinct acts, even when they involve
the same firearm.” Id. at 1036 (quoting Nixon v. United States, 730 A.2d at 153). The court
accordingly sustained two separate PFCV convictions predicated on burglary and robbery
offenses committed by the defendant where some time passed between the two crimes. Id. at
1037-38. This holding represented an application of the “fresh impulse” or “fork in the road”
test, “where a defendant has an opportunity to reconsider his action before proceeding onward.”
Id. at 1037. Such scenarios, the court explained, are “quite distinct from the kind of
simultaneous violent act involved in the Nixon holding.” Id. at 1038.
Here, all the evidence indicates that Mr. Jones’ shooting of George Jones and
Kevin Jeffcoat were distinct rather than simultaneous acts, and Mr. Jones alleges no facts to the
contrary. In other words, the undisputed evidence shows that Mr. Jones did not fire at both men
simultaneously, as in Nixon, but rather that he aimed and fired at each man separately and
sequentially. The evidence presented at trial was that Mr. Jones shot George Jones after he told
Mr. Jones to “chill,” and that Mr. Jones “then” shot Mr. Jeffcoat. Mem. Att. F at 2; Mem. Att. G
at 2. That these two shootings represented entirely distinct acts is confirmed by the fact that Mr.
Jones was convicted of first degree murder for one of the shootings but only second degree
murder for the other. Mem. Att. F at 1. Mr. Jones, therefore, was not “firing simultaneously at
several victims,” Nixon v. United States, 730 A.2d at 153, and Nixon’s “narrow holding” does
not apply to his case. In the wake of Stevenson, which was decided well before Mr. Jones’ trial,
see Mem. Att. A at 7, it was reasonable for Mr. Jones’ trial counsel to conclude that any merger
argument would be fruitless and that efforts were better devoted to other tactics. Mr. Jones’
23
allegations provide nothing to overcome the “strong presumption” that counsel’s action
constituted “sound trial strategy.” Strickland v. Washington, 466 U.S. at 689.
Because there is absolutely no basis upon which to believe that Mr. Jones’ trial
counsel was ineffective by not pursuing a merger argument, the facts alleged by Mr. Jones do not
support a finding that his appellate counsel was deficient for failing to pursue an ineffectiveness
claim arising from that omission. Furthermore, in view of the discussion in Stevenson and the
facts presented at Mr. Jones’ trial — which show that a merger argument would almost certainly
have failed — Mr. Jones cannot possibly demonstrate a “reasonable probability that, but for
counsel’s [alleged] errors, the result of the proceeding would have been different” on appeal.
Strickland v. Washington, 466 U.S. at 694. He therefore fails both prongs of Strickland’s test for
ineffective assistance. Once again, this determination can be made even without considering the
deference owed to the District of Columbia Court of Appeals on federal habeas review.
III. CONCLUSION
For the foregoing reasons, the Court will deny Mr. Jones’ motion to reconsider
and will grant the respondent’s motion to dismiss. An Order consistent with this Opinion will be
issued this same day.
SO ORDERED.
/s/____________________________
PAUL L. FRIEDMAN
DATE: September 28, 2012 United States District Judge
24
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174 F.Supp.2d 1088 (2001)
FALLON PAIUTE-SHOSHONE TRIBE, Plaintiffs,
v.
CITY OF FALLON, Nevada; Ken Tedford, Mayor City of Fallon; City of Fallon Councilmembers, Willis Swan, Hank Cornu and John Tewell, Defendants.
No. CV-N-99-270-ECR-VPC.
United States District Court, D. Nevada.
August 23, 2001.
*1089 *1090 Treva Hearne, Charles Zeh, Zeh, Polaha, Spoo, Hearne & Picker, Reno, NV, (for Fallon Paiute-Shoshone Tribes, Merlin Dixon, Alvin Moyle), for plaintiff.
Michael Mackedon, City of Fallon, City Attorneys Office, Fallon, NV, (for Hank Cornu, Fallon City Council Members, City of Fallon, Willis Swan, Ken Tedford, John Tewell), Donald Lattin, Walther, Key, Maupin, Oats, Cox, Klaich & LeGoy, Reno, NV, (for City of Fallon), for defendant.
ORDER
EDWARD C. REED, Jr., District Judge.
Plaintiffs, Fallon Paiute-Shoshone Tribe ("Tribe"), have filed a motion seeking partial summary judgment (# 39) on their civil rights 42 U.S.C. § 1983, equal protection, substantive due process, Fifth Amendment taking, breach of contract, and anti-trust claims. The defendants, ("City"), have filed an opposition (# 49) and plaintiffs replied (# 53).
Background
On June 5, 1997, the Fallon Paiute-Shoshone Tribe ("Tribe") acquired 36 acres of land for the sum of 1.3 million dollars. The property was transferred to and accepted by the United States of America in trust for the Tribe as part of its Reservation pursuant to section 103 of Public Law 101-618. The land is located within the City of Fallon ("City"). The City operates the only publicly-owned sewer treatment works in this area and also operates electric service facilities. The Tribe asked the City for connections to the City's utilities and submitted an application for sewer service to the property. The Tribe alleges that it is entitled to the services based on two sources. The first is an agreement executed between the City, the Indian Health Services, the Tribe, and its Housing authority. The second source is the Oats property, which the Tribe purchased. The Tribe claims that the Oats property contains an easement given to the City in exchange for 500 sewer connection credits which attached to the Oats property.
On April 13, 1999, the City rejected the Tribe's application for utility service and determined that it would not provide the Tribe with any other form of utility services until the land was taken out of trust. The plaintiffs filed suit alleging several causes of action, including violations of 42 U.S.C. § 1983, equal protection, due process, breach of covenants running with the land, and breach of contract.
I. SUMMARY JUDGMENT STANDARD
Summary judgment allows courts to avoid unnecessary trials where no material factual dispute exists. Northwest Motorcycle Ass'n v. U.S. Department of Agriculture, 18 F.3d 1468, 1471 (9th Cir.1994). The court must view the evidence and the inferences arising therefrom in the light *1091 most favorable to the nonmoving party, Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996), and should award summary judgment where no genuine issues of material fact remain in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Judgment as a matter of law is appropriate where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party. Fed.R.Civ.P. 50(a). Where reasonable minds could differ on the material facts at issue, however, summary judgment should not be granted. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).
The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing that there exists a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the parties may submit evidence in an inadmissible form namely, depositions, admissions, interrogatory answers, and affidavitsonly evidence which might be admissible at trial may be considered by a trial court in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c); Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181 (9th Cir.1988).
In deciding whether to grant summary judgment, a court must take three necessary steps: (1) it must determine whether a fact is material; (2) it must determine whether there exists a genuine issue for the trier of fact, as determined by the documents submitted to the court; and (3) it must consider that evidence in light of the appropriate standard of proof. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Summary judgement is not proper if material factual issues exist for trial. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir.1999). As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Disputes over irrelevant or unnecessary facts should not be considered. Id. Where there is a complete failure of proof on an essential element of the nonmoving party's case, all other facts become immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Summary judgment is not a disfavored procedural shortcut, but rather an integral part of the federal rules as a whole. Id.
II Analysis
A. 42 U.S.C. § 1983
The plaintiffs first argue that the City's denial of sewer, water and electricity to the 36 acres of land purchased by the Tribe violates the supremacy clause and the plaintiff's rights under 42 U.S.C. § 1983. The plaintiffs rely on Chase v. McMasters, 573 F.2d 1011, 1019 (8th Cir. 1978), to support their argument that the Tribe has been deprived of a statutory right.
In 1974, Chase and her husband purchased a parcel of land located within the city limits of the City of New Town. A year later, the Chases conveyed title to the lot to the United States in trust for Beluah Chase. The transfer was approved by the Department of the Interior, Bureau of Indian Affairs. Shortly after, the Chases applied to the city council for connection to city sewer and water lines which ran across the front of their lot. The city *1092 council knew of the land's trust status and delayed action on the request until it could obtain legal advice as to whether the city was required to provide services to land held in trust. The Chases were then informed that New Town would not allow the hookup as long as the lot was in trust status. Beluah Chase filed suit.
The Eight Circuit Court of Appeals held that the denial of Chase's rights under 25 U.S.C. § 465 stated a claim under 42 U.S.C. § 1983. Id. at 1017. Section 1983 creates a cause of action for violation of rights conferred by the federal constitution and federal statutes. The court noted that while not every violation of a federal statute gave rise to a section 1983 action, the "unique legal relationship between the Federal Government and tribal Indians", did state a cause of action under section 1983. The court held that 25 U.S.C. § 465 authorized the Secretary of Interior to purchase land for an Indian and to hold title in trust. Newtown's actions in denying services to the land as long as it was in trust interfered with Chase's right under 25 U.S.C. § 465 and therefore, with the legal relationship between the federal government and a tribal Indian. The court concluded that "the federal forum is appropriate for a claim of state or local interference with a right conferred on tribal Indians by federal law." Id. at 1017.
Defendants argue that the City's denial of sewer services is not a denial of federal statutory rights under section 1983. Defendants distinguish Chase on several grounds. First, defendants argue that Chase involved the transfer of property to trust status under the Indian Reorganization Act of 1934 while this case concerns Public Law 101-618.
The fact that in the present case the transfer of property has occurred under Public Law 101-618 does not change the analysis. Both the IRA and Public Law 101-618 state that title to land acquired under its provisions shall be held in trust by the government. We have previously held in a related suit to this case that Public Law 101-618 authorizes the Tribe to purchase land and transfer title to the federal government to have the land held in trust.[1]
Section 1983 creates a cause of action for violations of rights conferred by federal civil rights laws, as well as violations of other statutory and federal constitutional rights. Greenwood v. Peacock, 384 U.S. 808, 829-30, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). While a section 1983 action does not exist for every violation of a federal statute, the Eight Circuit held in Chase that a clear violation based upon "the `unique legal relationship between the Federal Government and tribal Indians' does state a cause of action." Chase, 573 F.2d at 1017 (quoting Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). The court reasoned that the federal government assumed a guardian-ward relationship with respect to tribal Indians and had a responsibility to fulfill its trust obligations by protecting trust property from state interference. Local action interfering with a federal right conferred upon the tribe also interfered with the relationship between the federal government and a tribe. Id.
Second, defendants argue that while the individual plaintiff in Chase is clearly a protected "citizen" within the meaning of the Civil Rights Act, it is questionable whether the Tribe is a "citizen." However, Ninth Circuit authority supports the proposition that Tribes are "other persons" entitled to sue under section 1983. See Native Village of Venetie IRA Council v. State of Alaska, 155 F.3d 1150, 1152 n. 1 *1093 (9th Cir.1998) (citing Chemehuevi Indian Tribe v. California State Board of Equalization, 757 F.2d 1047, 1054-55 (9th Cir. 1985)).
Third, defendants contend that the Ninth Circuit case of White Mountain Apache Tribe v. Williams, 810 F.2d 844 (9th Cir.1985), stands for the proposition that preemption of state law under the supremacy clause will not support a section 1983 claim and that not all federal statutes secure rights within the meaning of section 1983.
It is true than not every violation of federal law will give rise to a section 1983 cause of action. However, we see no distinction between the case presently before us and the Chase case. Public Law 101-618 was designed to settle claims by the tribes against the government. The Secretary was required to accept the land into trust for the tribe once the requirements of section 103(A) were met. Therefore, the Tribe has a federal right to have its land held in trust and the City of Fallon's denial of sewer services interferes with the tribe's right to enjoy the beneficial use of land held in trust. The City's refusal to provide sewer services due to the trust status of the land interferes "with the operation of an important means of implementing a policy adopted by the federal government to meet its trust obligations to Indian Tribes." Id. at 1018.
Local executive or administrative officials are accorded a qualified, good faith immunity from liability in damages under 42 U.S.C. § 1983. We previously denied defendants' motion to dismiss the plaintiffs' complaint on immunity grounds. However, neither party addressed the issue of qualified immunity in the summary judgment motion. Qualified immunity is a defense to liability, therefore, it is the defendants who should have asserted the defense in opposition to the motion for summary judgment. The defendants failed to raise the issue so we do not address the issue. The plaintiffs' motion for summary judgment on their section 1983 claim is granted.
B. Equal Protection Claim
Among the protections afforded by the Fourteenth Amendment is the guarantee that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. Plaintiffs allege that defendants violated their equal protection of the laws when the defendants chose not to grant the Tribe the sewer hookups as long as the property was in trust. An equal protection claim requires a showing of intentional discrimination. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 n. 16, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). To establish such intentional or purposeful discrimination, it is necessary that plaintiffs must allege that similarly situated persons have been treated differently. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
The City has offered neither caselaw or citation to the record to support its claim that it did not discriminate against the Tribe. The City's sole argument is that once the property went into trust, the property was no longer part of the City. Therefore, the City could not discriminate against the Tribe because the City did not have jurisdiction. We disagree.
The City's argument would have this court limit the equal protection claim on geographic boundaries. The real question for an equal protection claim is whether the City treated the Tribe differently from other similarly situated persons. The Tribe appeared before the City Council like any other person seeking City services *1094 and subjected itself to the City's application process. The issue before us is whether the City treated the Tribe differently from other similarly situation persons when it denied the Tribe services.
The City Council denied the Tribe city services "unless the property is annexed into the City." (Ex. 38, Transcript of City Council Special Session, Apr. 13, 1999, P. 82) The City Council members denied services over their concern that the City would have no jurisdiction or control over the property to enforce City laws, in particular rules regarding zoning, the use of utilities, and building codes. The Tribe alleges that the City has not made such requirements from other similarly situated entities, such as Churchill County, the post office, or the University of Nevada.
The Tribe has brought forth evidence that supports their equal protection claim. For example, Mayor Tedford was questioned in his deposition about City Code 14.04.020, which indicates that the city shall have a lien on any lot or parcel of land for any charges by the owner for services provided. (Plaintiffs' Exhibits in Support of Motion for Partial Summary Judgment, Tedford Depo., Vol. IV, p. 379-80) The Mayor stated that the City has not really considered section 14.04.020 to be an issue when providing utilities to the county, the school district, or the post office but does consider it to be an issue when dealing with the tribe. (Id.) The Mayor could not explain why he considered the tribe to be different from these other entities. The Mayor admitted in his deposition that the Tribe in negotiations agreed to waive their immunity in order to allow the City to lien someone's property if the utilities bills were not paid. (Id. at 383-85).
It is clear from the evidence that the council members do not know whether other similarly situated entities are required to follow all of the city regulations that the city is demanding the Tribe to follow. Councilmember Cornu did not know if other entities, such as the State of Nevada or the federal government, were required to get zoning approval or build according to city building code standards. (Plaintiffs' Exhibits in Support of Motion for Partial Summary Judgment, Cornu Depo., Vol. II, p. 81-83) However, the City wants the Tribe to abide by these regulations. During the vote held regarding whether to grant the Tribe sewer services, the City Council repeatedly stated that the only thing the city wanted was for the Tribe to go "by the rules that we have for everybody else, every contractor in town." (Ex. 38, Transcript of City Council Special Session, Apr. 13, 1999, P. 82). Nevertheless, the evidence shows that the Tribe has not been treated like other similarly situated developers and that the City is requiring more stringent standards from the Tribe. The Tribe has made offers to the City to alleviate some of their concerns, such as waiving immunity for liens, abiding by the City's building code, and making payments to the city in lieu of taxes. (Plaintiffs' Exhibits in Support of Motion for Partial Summary Judgment, Tewell Depo., p. 70 (stating that the tribe notified the City that it would abide by its rules and regulations governing the use of utilities)). The City, however, insists that the land be taken out of trust before it provides the Tribe with services.
In a motion for summary judgment, the moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing that there exists a genuine issue for trial. Anderson v. Liberty *1095 Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The City has failed to produce any evidence to dispute the evidence introduced by the Tribe. The City has not demonstrated that there is a genuine issue for trial. Consequently, the Tribe's motion for summary judgment on the equal protection claim is granted.
C. Substantive Due Process
Plaintiffs assert that they have a substantive due process right that has been infringed by the City's denial of services. The "substantive" component of the due process clause forbids "arbitrary infringements of certain personal immunities that are `implicit in the concept of ordered liberty,'" Wroblewski v. City of Washburn, 965 F.2d 452, 457 (7th Cir.1992) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)), or that "shock the conscience." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Supreme Court urges courts to use caution and restraint in applying substantive due process. See, e.g., Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225-26, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985). The scope of substantive due process has been severely limited by the courts. See, e.g., Saukstelis v. City of Chicago, 932 F.2d 1171, 1173 (7th Cir.1991) ("Outside the realm of personal liberties, substantive due process may be a misnomer for the enforcement of rights expressly established in the Constitution and applied to the states through the fourteenth amendment").
A plaintiff must establish that he has a "legitimate claim of entitlement" to the right being asserted. Although the plaintiffs contend that a substantive due process right is at issue, they fail to identify the nature of such a right or to show that they have an entitlement to such a right. There is no personal liberty at issue in the case. The Tribe has failed to show that it has a fundamental right or entitlement to the delivery of sewer service.
In addition, because of the highly destructive potential of overextending substantive due process protection, see, e.g., Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and because the doctrine's boundaries are not clear, the Supreme Court has repeatedly cautioned that the concept of substantive due process has no place when a provision of the Constitution directly addresses the type of illegal governmental conduct alleged by the plaintiff. See, e.g., Graham v. Connor, 490 U.S. 386, 394-5, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The plaintiffs also seek redress for other constitutional violations, including violation of equal protection and a taking without just compensation in violation of the Fifth Amendment. The takings clause itself addresses whether and under what circumstances the government may take an individual's private property. The equal protection clause limits state action that seeks to discriminate. Therefore, the plaintiffs have other constitutional provisions that directly address the illegal conduct alleged by the plaintiffs and there is no room for the concept of substantive due process. Consequently, summary judgment on the substantive due process claim is denied.
D. Takings Claim
The Tribe has also brought a Fifth Amendment takings claim against the City. A land use regulation is compensable as a taking under the Fifth Amendment only when the regulation denies all economically beneficial uses of the affected site. See Penn Cent. Transp. Co. v. City *1096 of New York, 438 U.S. 104, 128-38, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The Fifth Amendment prohibition against taking without compensation does not guarantee the most profitable use of property, Goldblatt v. Town of Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962), and a diminution in value, standing alone, does not establish a taking. Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 131, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The taking issue in these contexts is resolved by focusing on the uses the regulations permit. Id. at 131, 98 S.Ct. 2646.
The Tribe has failed to set forth specific facts showing that no genuine issue of material fact exists regarding the value of the property. The Fifth Amendment requires that the act by the government entity deprive the property of all economically beneficial use. The Tribe has invested a significant portion of money in the property by the simple act of purchasing the property. However, in support of their motion, the Tribe argues that without the sewer services the land "can not and will not be developed to its highest and best uses." A takings claim requires more than a diminution in value or a change in use. The Tribe argues that the land is "worthless" without the services, but has failed to provide sufficient evidence to support a grant of summary judgment on this claim. Therefore, we deny summary judgment on the takings claim.
E. Breach of Contracts
The Tribe alleges that the City's refusal to provide utilities to the 36 acres violates several existing contracts between the Tribe and the City. The Tribe relies on an Agreement reached by the City and the Tribe on January 5, 1988, for the construction of the sewer project and on its status as successor to the Oats agreement. The January 5, 1988, contract allegedly granted the Tribe the right to 100 sewer hookups without geographic limitations. The Oats Agreement contains 500 residential equivalents of service and hookups that are part of the Easement Agreement.
We find that genuine issues of material fact exist as to this claim. Each side has introduced evidence to dispute whether the January 5, 1988 agreement contemplated service outside the Colony and whether the Oats Agreement allows the Tribe to receive service. Consequently, summary judgment is denied.
F. Anti-Trust Protections
"Municipalities, on the other hand, are not beyond the reach of the antitrust laws by virtue of their status because they are not themselves sovereign. Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412, 98 S.Ct. 1123, 1136, 55 L.Ed.2d 364 (1978)." Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S.Ct. 1713, 1717, 85 L.Ed.2d 24 (1985).
The Tribe relies on the Robinson-Patman Anti-Discrimination Act, 15 U.S.C. § 13 (1994), to assert their anti-trust claim. Section 2(a) of the Robinson-Patman Act provides in pertinent part:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent *1097 competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them....
15 U.S.C. § 13(a) (emphasis added). Section 13 of the Act addresses anti-trust acts relating to price discrimination. We find no such evidence present in this case. Section 13 does not apply. Furthermore, the plaintiffs have failed to show that the City's actions constitute a restraint of trade in violation of anti-trust laws.
Conclusion
The plaintiffs have brought forth sufficient evidence to show that no genuine issue of material fact exists as to their section 1983 and equal protection claim. We find, however, the genuine issues of material fact do exist on plaintiffs' takings claim and breach of contract claims. Furthermore, we find that plaintiffs' claims of substantive due process and anti-trust violations are not cognizable.
IT IS, THEREFORE, HEREBY ORDERED THAT plaintiffs' motion for partial summary judgment (# 39) is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to plaintiffs' section 1983 and equal protection claims. The motion is DENIED as to plaintiff's substantive due process claim, takings claim, breach of contract claim, and antitrust violations claim.
NOTES
[1] See Churchill County v. United States of America, CV-N-00-075-ECR (RAM).
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-1438
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Jaysen Lane Heyer,
lllllllllllllllllllllDefendant - Appellant.
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: November 12, 2018
Filed: November 16, 2018
[Unpublished]
____________
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Jaysen Heyer appeals the sentence the district court1 imposed after he pleaded
guilty, pursuant to a written plea agreement, to a drug offense. His counsel has
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738
(1967), challenging the sentence as substantively unreasonable. In a pro se brief,
Heyer argues that he did not understand the consequences of his guilty plea, that the
plea agreement was breached, and that he received ineffective assistance of counsel.
After careful review, we conclude that the district court did not impose an
unreasonable sentence. The sentence was below the advisory Guideline range. The
court properly considered the factors set forth in 18 U.S.C. § 3553(a), and there is no
indication that the court committed a clear error of judgment in weighing relevant
factors. See United States v. Salazar-Aleman, 741 F.3d 878, 881 (8th Cir. 2013)
(standard of review); see also United States v. Torres-Ojeda, 829 F.3d 1027, 1030
(8th Cir. 2016). We further conclude that Heyer’s claims that he did not understand
the consequences of his guilty plea and that the sentence constituted a breach of his
plea agreement are refuted by his testimony at the plea hearing and the terms of the
plea agreement. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997); see
also United States v. Bahena, 223 F.3d 797, 806-07 (8th Cir. 2000). Additionally, we
decline to consider Heyer’s claims of ineffective assistance of counsel in this direct
appeal. See United States v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002).
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues for appeal. Accordingly, we grant counsel’s
motion and affirm.
______________________________
-2-
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217 S.C. 322 (1950)
60 S.E.2d 621
THIGPEN
v.
THIGPEN.
16382
Supreme Court of South Carolina.
July 13, 1950.
*323 Mr. John G. Dinkins, of Manning, for Appellant.
*324 Messrs. James Hugh McFaddin and Fred Lesesne, of Manning, for Respondent.
July 13, 1950.
OXNER, Justice.
This action was instituted in February, 1948, for the purpose of having a deed to a tract of land in Clarendon County containing approximately 100 acres, absolute in form, executed by respondent to appellant, his brother, on May 4, 1927, construed as a mortgage. Respondent alleged in his complaint that he was induced to sign this instrument by appellant's fraudulent representation that it was a mortgage. *325 He also alleged that he received no consideration for said conveyance and that it was not witnessed as required by law. Appellant denied the material allegations of the complaint, set up title by adverse possession, and further alleged in his answer that respondent had not within ten years before the commencement of the action been seized or possessed of the premises and was, therefore, barred by the statute from bringing this action.
The case was tried at the March, 1949, term of the Court of Common Pleas for Clarendon County. Under issues framed by the Court, the jury found (1) that the instrument was not executed according to law, (2) that it was without consideration, (3) that it was intended as a mortgage, (4) that respondent was induced to sign same by fraudulent representations on the part of appellant, and (5) that appellant had not acquired title to said premises by adverse possession. A motion for a new trial made by appellant was overruled. Thereafter a decree was filed approving and adopting all findings of fact made by the jury and directing that an accounting be had between the parties. This appeal followed.
The first question for determination is whether the Court below erred in refusing a motion for a directed verdict made by appellant at the conclusion of the testimony on the ground that the proof was insufficient to support a finding that the parties intended that the deed should operate as a mortgage.
Appellant owned a tract of land containing approximately 122 acres adjacent to the 100-acre tract owned by respondent. Both tracts of land were originally parts of a 315-acre tract owned by their father. The two brothers were farmers of limited education. Respondent said that he never went beyond the second grade in school and was scarcely able to either read or write. On June 18, 1925, respondent mortgaged his tract of land to the Federal Land Bank for $1,400.00 and on the same day appellant mortgaged his tract of land for $2,000.00 to the same institution.
*326 In April, 1927, respondent became in urgent need of funds for the purpose of discharging an indebtedness amounting to approximately $500.00 incurred to the South Carolina Agricultural Loan Association in 1926. He was unable to borrow the money and approached his brother for aid. Appellant was not in a position to render financial assistance and the two brothers then went to see one D.N. Baker, who lived in that community, and asked if he would make a loan secured by a second mortgage on respondent's tract of land. Baker declined to do so but indicated that he would make a loan to respondent if the parties would secure same by a second mortgage on both tracts of land. According to respondent, appellant agreed to this arrangement. A few days later, on May 4, 1927, the instrument in controversy, an absolute conveyance, by respondent to appellant of the 100-acre tract, was executed. The only consideration stated in the deed is $5.00. No reference was made therein to the mortgage held by the Federal Land Bank. On the same day appellant executed to Baker a note for $750.00, secured by a mortgage covering both tracts of land. Both the deed and mortgage were recorded on the following day in the office of the Clerk of Court. The deed was executed and the dower thereon renounced at the residence of appellant. Respondent and his wife testified that both appellant and the notary public who probated the affidavit on the deed and took the renunciation of dower represented to them that this instrument was a second mortgage on respondent's tract of land. Respondent said that a sale of his property was never discussed; that no mention was ever made of a deed; that no money was ever paid to him; and that he executed the instrument solely for the purpose of borrowing funds to discharge his indebtedness to the Agricultural Loan Association.
Appellant testified that his brother came to him stating that he was in serious trouble on account of disposing of property mortgaged to the Agricultural Loan Association and that it was necessary for him to pay within a few days *327 a fine imposed upon him in the Court of General Sessions for Clarendon County; and that he thereupon took his brother to see Baker who declined to make a loan secured by a second mortgage on the 100-acre tract. Appellant's version of what then transpired is as follows: "We still didn't know what to do and he (respondent) asked me about putting up both tracts if he would deed me his, he said it was the worth of it anyway. The Federal Land Bank mortgage and this trouble he was in, was the value of the place, and he didn't have a chance and he would deed me the place if I would put up both the places and borrow the money, and that is what we did." Appellant further testified that he did not wish to buy the property as he could have bought similar property in that community much cheaper and that his sole motive was to assist his brother. He said that approximately $500.00 of the proceeds of the loan was paid to the Clerk of Court of Clarendon County to satisfy his brother's indebtedness to the Agricultural Loan Association and the balance of approximately $250.00 was paid to his brother in cash. He stated that there was also paid to respondent the sum of $5.00 named as the consideration in the deed. (As previously stated, respondent denied that any money was paid to him in the transaction.)
After executing the above deed in 1927, respondent remained on the premises for three years. During that time he said that he continued to operate the farm as had been previously done, without any demand or request for the payment of rent; and that he paid to appellant from the income on the farm the sum of $280.00 to be applied on the second mortgage which he thought appellant held. Appellant denied receiving the $280.00 payment and said that during the three-year period respondent operated the farm as his sharecropper. The property was returned for taxation in 1927, 1928 and 1929 in the name of respondent. These taxes went into execution and were paid by appellant some time later. Respondent testified that at the expiration of this three-year period, he left the premises under an agreement *328 that appellant would manage the farm and use the income therefrom to pay the taxes and discharge the mortgage indebtedness thereon, when the property would be returned to respondent. Appellant denied making this agreement. Respondent remained away from the premises for a period of nine years, during which time he farmed at various places. He then returned to this farm and operated it as appellant's sharecropper through the year 1947. The property was returned for taxation from 1930 to 1948 in the name of appellant and the taxes were paid by him. During 1947 a disagreement arose between the parties as to the disposition and division of the produce, thereby terminating the friendly relationship which had always existed between these two brothers. During the fall of that year respondent learned that appellant was cutting timber on the premises and objected to his doing so. Appellant replied that he had a deed to the property and, therefore, had a right to cut the timber. Respondent asked to see the deed and was told that it was recorded. Shortly thereafter respondent went to the office of the Clerk of Court where he says he first discovered that the instrument which he thought was a mortgage was an absolute deed. A few months later this action was instituted.
It appears that appellant paid the Baker mortgage and the remaining installments on the mortgage given by respondent to the Federal Land Bank. The Baker mortgage was satisfied in 1943 and the Land Bank mortgage in 1944. Respondent offered testimony to the effect that the tract of land involved in this controversy is now worth at least $10,000.00 but his testimony as to its value at the time the deed was executed is rather vague. Appellant's testimony tended to show that at the time the deed was executed, the value did not exceed the amount due on the Federal Land Bank mortgage and the loan made by Baker.
Several witnesses for respondent testified that prior to the institution of this action, appellant stated to them that he held a second mortgage on the 100-acre tract of land.
*329 This is an equity case. The jury found that the instrument in controversy was procured by fraud and was intended to operate as a mortgage of the real estate described therein. The trial Judge concurred in and adopted these findings of fact. Hence, they are not subject to review by this Court. Article 5, Section 4 of the Constitution; Carmichael et al. v. Carmichael et al., 110 S.C. 357, 96 S.E. 526; Aiken Petroleum Co. v. National Petroleum Underwriters of Western Millers Mutual Fire Insurance Co., 207 S.C. 236, 36 S.E. (2d) 380, and coses therein cited. The limit of our inquiry is whether there is any evidence reasonably supporting the conclusion reached by the jury. Brown v. Volunteer State Life Insurance Co., 212 S.C. 537, 48 S.E. (2d) 507. There is a sharp conflict in the testimony. We think that offered by respondent, which the jury evidently accepted, was sufficient to support the facts found.
We shall next consider appellant's contention that the Court erred in submitting under the circumstances hereinafter mentioned the issue of adverse possession. At the conclusion of the testimony, the jury was excused and the Court proceeded to discuss with counsel the issues to be submitted. During this discussion appellant's counsel asked for a peremptory instruction to the effect that the evidence was insufficient to support a finding that the instrument was intended as a mortgage. This request was refused. At the suggestion of the Court, it was then agreed that the following questions should be submitted to the jury:
"I. Was the instrument claimed by the Defendant, James E. Thigpen, to have been executed to him by the Plaintiff, E.L. Thigpen, in this case, on May 4, 1927, executed according to law?
"II. Was there a valid consideration for said instrument?
"III. Was said instrument intended as security for a debt and to operate as a mortgage of the real estate therein described?
*330 "IV. Was the Plaintiff, E.L. Thigpen, induced to sign the said instrument by reason of misrepresentation, deceit and fraud on the part of the Defendant, James E. Thigpen?"
These questions were read by the Court to the jury before counsel commenced their arguments. One of respondent's attorneys in the closing argument discussed at length, without objection, the question of adverse possession, stressing the fact that appellant's counsel had abandoned this defense. At the conclusion of the arguments the jury was excused and the following occurred:
"The Court: Gentlemen, it would appear to me in order to settle this case finally we will have to have some understanding as to how we will dispose of these questions as to adverse possession. Of course you are the moving party, Mr. Dinkings, in that regard.
"Mr. Dinkins: It looks like now I am in a position I will have to ask your Honor to submit that question to the jury. I was adhering to the four questions we submitted, but my friend made that argument.
"The Court: Do you want that question answered?
"Mr. Dinkins: It seems to me like I would have to do that now.
"The Court: I think unless you want to submit that to the presiding Judge or to refer it that is a jury question as much as any of these others. Now, the question of accounting can be attended to by the Referee. Now, what question shall (we) submit to them on the adverse possession business.
"Mr. McFaddin: Does the defendant own the land by adverse possession, it seems to me.
"The Court: Did the defendant J.E. Thigpen acquire title to the real estate described in the complaint by adverse possession, would that be sufficient?
"Mr. McFaddin: Yes, sir.
"Mr. Dinkins: Yes, sir."
*331 In accordance with the foregoing agreement, the Court submitted to the jury in addition to the four questions heretofore mentioned, the following: "Did the defendant, J.E. Thigpen, acquire title to the real estate described in the complaint by adverse possession?"
It clearly appears that appellant's counsel acquiesced in the submission of the fifth question relating to adverse possession, and, therefore, is not now in a position to complain. If he desired to argue this question to the jury, he should have requested the Court to reopen the arguments so as to afford him that opportunity.
There are a number of exceptions to the charge. The only error complained of which has given us serious concern, and it seems to be the one principally stressed by appellant's counsel, is the instruction relating to the degree of proof necessary to establish that the conveyance was intended as a mortgage. It is claimed that the instructions given were inconsistent and constituted reversible error. In the general charge the jury was instructed that the burden was upon respondent to establish the first four issues "by the preponderance or greater weight of the evidence." This was correct as to the first two issues but a higher degree of proof was required as to the third and fourth issues. It was incumbent upon respondent to prove that the conveyance was intendel to operate as a mortgage by clear, unequivocal and convincing evidence. At the conclusion of the charge, the trial Judge inquired of counsel whether he had "overlooked anything that you want to call to my attention." Appellant's counsel thereupon called the Court's attention to his requests to charge. After remarking that he thought he had already "charged about the same thing", the trial Judge gave all of the requested instructions. Request No. 1 was as follows: "I charge you that a deed absolute on its face is presumed to be an absolute conveyance of the land described therein and to overcome this presumption, and establish its character as a mortgage, the evidence must be clear, unequivocal and *332 convincing, for otherwise the natural presumption will prevail." A portion of request No. 3 was to the same effect.
While the question is not free from difficulty, we do not think that the circumstances warrant a reversal. We are quite sure that the able trial Judge, with his long experience, was fully familiar with the degree of proof required in cases of this kind but inadvertently overlooked this feature in his general charge. Evidently appellant's counsel noticed this oversight but thought his requests were entirely sufficient to correct the error. In asking the Court to charge these requests, there was no suggestion that they were inconsistent with what had already been charged. If counsel felt that the jury's attention should have been specifically directed to the error in the general charge wherein the preponderance rule was stated, or that otherwise further clarification was necessary, he should have made known that fact to the Court. Much emphasis is placed on the Court's comments on the requests to charge to the effect that he had already "charged about the same thing" and that the requests were "in line with what I have already charged you", but the trial Judge was then evidently referring to certain other principles in the requests which, in fact, had already been charged.
It is true that the giving of conflicting instructions ordinarily constitutes reversible error because it is impossible for the jury to decide which should be accepted, and after the verdict of the jury, it is equally impossible for the Court to determine which the jury followed and which they ignored. Citizens Bank of Darlington v. McDonald et al., 202 S.C. 244, 24 S.E. (2d) 369. But under the exceptional circumstances presented in the instant case, we are satisfied that the jury was not misled and that the confusion now complained of by appellant should have been called to the Court's attention.
Errors also are assigned in the failure of the Court to charge various principles which appellant contends were applicable to the issues. If appellant desired a *333 more detailed charge or further instructions covering special features of the case not mentioned in the general charge, requests to this effect should have been submitted or the omission should have been called to the attention of the Court. Williams v. Southeastern Life Insurance Co., 197 S.C. 171, 14 S.E. (2d) 895; Coleman v. Lurey, 199 S.C. 442, 20 S. E. (2d) 65; South Carolina Power Co. v. Baker, 212 S.C. 358, 46 S.E. (2d) 278.
The only other question raised by the exceptions is that the Court erred in not granting appellant's motion for a new trial on the ground of after discovered evidence. The evidence referred to consisted of a judgment roll in the office of the Clerk of Court for Clarendon County, properly indexed and filed, which disclosed that the South Carolina Agricultural Loan Association brought suit against respondent on a note in the sum of $450.00, secured by a chattel mortgage, wherein it was alleged that respondent had disposed of the crops in violation of the statute, rendering him subject to arrest. Judgment by default for $515.30 was entered on March 7, 1927, and was paid to and satisfied by the sheriff on May 5, 1927, the same day the instrument in controversy was recorded. According to the affidavit of appellant's counsel, he was informed by his client that the above transaction resulted in a criminal prosecution, and, accordingly, he examined the criminal dockets in the office of the Clerk of Court of Clarendon County and several adjoining counties but it never occurred to him to examine the civil dockets. It was through this erroneous impression that he did not discover this judgment roll until after the trial. The Court below held that this evidence was not material to the main issue; that if presented at another trial it would not change the result; and that the same could have been discovered before trial by the exercise of due diligence.
A motion of this kind is largely addressed to the sound discretion of the trial Judge. Edwards v. Cottingham, 171 S.C. 131, 171 S.E. 621; Johnston v. Belk-McKnight Co., 188 S.C. 149, 198 S.E. 395. We find *334 no abuse of discretion on the part of the trial Judge in denying this motion. In fact, we think his discretion was wisely exercised.
The decree of the Court below is affirmed and the case is remanded for the purpose of an accounting between the parties.
FISHBURNE, STUKES and TAYLOR, JJ., and E.H. HENDERSON, ACTING ASSOCIATE JUSTICE, concur.
BAKER, C.J., not participating.
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643 F.2d 299
UNITED STATES of America, Plaintiff-Appellee,v.Lawrence W. KERLEY, Defendant-Appellant.
No. 80-5371.
United States Court of Appeals,Fifth Circuit.
Unit B
April 22, 1981.
William R. Northcutt, Indian Harbour Beach, Fla., for defendant-appellant.
Stephen P. Clark, Walter Barnett, Linda K. Davis, Attys., Drew S. Days, III, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before GODBOLD, Chief Judge, and FRANK M. JOHNSON, Jr., and ANDERSON, Circuit Judges.
FRANK M. JOHNSON, Jr., Circuit Judge:
1
Appellant Lawrence Kerley, an officer of the Brevard County, Florida, Sheriff's Office, appeals from his conviction by a jury for violation of 18 U.S.C.A. § 242,1 which makes criminal the willful deprivation of constitutional rights by any person acting under color of law.
2
The charge against Kerley was based upon an incident in which Daniel de la Osa, while being held face down over the trunk of a patrol car by two police officers, was struck by Kerley in the back of the head with a lead-filled black-jack. Kerley admitted striking this blow. All of the six police officers who observed the incident, except one, testified that de la Osa was offering no resistance at the time Kerley struck him.
3
Kerley urges three grounds of error: (1) the district court's refusal to allow him to introduce evidence of his state court acquittal on a battery charge arising from the same incident, (2) its failure to properly charge the jury on the element of willfulness, and (3) its denial of his motion for judgment of acquittal.
4
After a Florida state court jury trial, Kerley was acquitted of a battery charge arising out of the same incident that is the basis of the offense charged in this case.2 Prior to Kerley's trial in this case the Government filed a motion seeking to exclude any evidence of the state court acquittal. At a hearing on the motion, defense counsel stated that he sought to introduce the judgment of acquittal not as direct evidence, but rather to impeach the complaining witness by showing his prejudice and interest in the outcome of the federal case, and to test his credibility because he testified in the state case. The court ruled that evidence of the prior acquittal was inadmissible because it was not relevant and because it was hearsay not falling within any exception to the hearsay rule. The court instructed defense counsel not to refer to that acquittal.
5
Kerley urges that the trial court's exclusion of evidence of the acquittal requires reversal. It is significant that Kerley does not contend that double jeopardy or collateral estoppel bars the federal prosecution based upon the same incident that gave rise to the state battery charges.3 Although a judgment of acquittal is relevant with respect to the issues of double jeopardy and collateral estoppel, "once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to rebut inferences that may be drawn from the evidence that was admitted." United States v. Viserto, 596 F.2d 531, 537 (2d Cir. 1979).
6
Under Fed.R.Evid. 401, evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." We agree with the Government's position that evidence of a prior acquittal is not relevant because it does not prove innocence but rather merely indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime. See McCormick's Handbook of the Law of Evidence § 318 (2d ed. 1972); 4 Weinstein's Evidence P 803(22) (02), at 803-280 (1979).
7
Even if evidence of the state court acquittal were relevant, such evidence was properly excludable because in this instance its probative value was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. Under Rule 403 a trial judge has broad discretion to exclude otherwise relevant evidence, even where bias or interest of a witness is involved. United States v. Johnson, 585 F.2d 119, 125-26 (5th Cir. 1978); United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir. 1978). Because the elements of the state battery charge were entirely different from the elements of the federal charges in this case, the probative value of evidence of Kerley's acquittal on that charge was substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. We conclude that the trial court did not abuse its discretion in excluding for lack of relevancy evidence of the state court acquittal.
8
The indictment charged that Kerley did "willfully strike and assault Daniel Ralph de la Osa ... and did thereby willfully deprive" de la Osa of his constitutional rights. After reading the indictment and Section 242, the nearest the court came to instructing the jury on "willfulness" was as follows:
9
Finally, the evidence must establish beyond reasonable doubt that the Defendant knew that the degree of force which he utilized on Mr. de la Osa at the time of the arrest was not reasonably necessary to effect the arrest, but, despite this knowledge, he knowingly and intentionally exerted force which he knew to be unlawful under all the circumstances to accomplish the arrest.
10
An act is done "intentionally" if it is done voluntarily and with the specific intent to do the act in question, as distinguished from an act done through inadvertence, mistake, accident or for some other innocent reason.
11
At the conference on the jury charge defense counsel objected to the trial court's instruction, stating that the court's instruction failed to cover the element of willfulness in sufficient detail. The court overruled the defense objection. Defense counsel admitted that the instruction was very close to the instruction desired by the defendant.4 The Government's proposed instruction No. 8 included a definition of willfulness.5 The court also rejected the instruction on willfulness requested by the Government. During deliberations the jury requested that the court provide it with the court's instruction and also with the court's definition of willfully. The court re-read its instruction on the elements of the offense to the jury.
12
After the jury returned a guilty verdict, Kerley filed a motion for a new trial on several grounds, one of which was the court's failure to instruct the jury on the element of willfulness. The motion was denied and this appeal followed. We reverse.
13
In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Supreme Court in a lengthy analysis of the predecessor of 18 U.S.C.A. § 242, Section 20 of the Criminal Code, stated:
14
We recently pointed out that "willful" is a word of many meanings, its construction often being influenced by its context.... At times, ... the word denotes an act which is intentional rather than accidental.... But "when used in a criminal statute it generally means an act done with a bad purpose." ... In that event something more is required than the doing of the act proscribed by the statute.... An evil motive to accomplish that which the statute condemns becomes a constitutive element of the crime.... And that issue must be submitted to the jury under appropriate instructions.
15
Id. at 101, 65 S.Ct. at 1035 (citations omitted). The Court held that it was necessary for the jury, in order to find that the defendants acted willfully, to find that they had a purpose to deprive a person of a specific constitutional right. Id. at 101, 107, 65 S.Ct. at 1035-1038. This Court in United States v. Stokes, 506 F.2d 771, 776-77 (5th Cir. 1975), noted that the significance of Screws is its holding that specific intent to deprive a person of a constitutional right is an essential element of a Section 242 violation.
16
In several cases involving 18 U.S.C.A. § 242, this Court has upheld jury instructions that were challenged with respect to the element of willfulness. United States v. Hayes, 589 F.2d 811, 820-21 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Stokes, supra, 506 F.2d at 776-77; United States v. Ragsdale, 438 F.2d 21, 23-26 (5th Cir.), cert. denied, 403 U.S. 919, 91 S.Ct. 2231, 29 L.Ed.2d 696 (1971). In Hayes the defendant, who was sentenced to life imprisonment because his violation of Section 242 resulted in death, contended that Section 242 requires that the jury be instructed that a defendant had the willful intent to cause the death of the victim. The Court rejected this contention.
17
In Stokes the trial court correctly instructed the jury that an act
18
is willfully done if it is done voluntarily and purposely with a specific intent to do something the law forbids, that is with bad purpose to disobey or disregard the law. The specific intent required to convict of this crime is the intent to deprive a person of a constitutional right.
19
506 F.2d at 776.
20
The approved instruction on willfulness in Ragsdale was substantially similar to the instruction given in Stokes :
21
(A)n act is done "willfully" if done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.
22
438 F.2d at 24 n.2. Additionally, the Court in Ragsdale instructed the jury that
23
A person who knowingly does an act which the law forbids ..., intending with bad purpose either to disobey or to disregard the law, may be found to act with specific intent.
24
Id.
25
The district court in this case failed to define in its charge to the jury the critical element of willfulness. The court did not even inform the jury that willfulness is an essential element of a Section 242 offense. Significantly, the jury requested the trial judge to provide it with the definition of "willfully" that the court had previously given in its instruction because one juror had a question about the element.
26
When reviewing a trial court's refusal to charge a requested instruction, this Court must consider the jury charge as a whole in light of the evidence presented and the arguments of counsel. United States v. Rhodes, 569 F.2d 384, 389 (5th Cir.), cert. denied sub nom. Waites v. United States, 439 U.S. 844, 99 S.Ct. 138, 58 L.Ed.2d 143 (1978).
27
Although the district court instructed the jury that in order to convict Kerley it must find that he "knowingly and intentionally exerted force which he knew to be unlawful," and, further, defined "intentionally," it did not instruct the jury that willfulness means an act which is done with a bad purpose or an evil motive. See Screws v. United States, supra, 325 U.S. at 101, 65 S.Ct. at 1035.
28
Further, although the district court instructed the jury that the act must be done "with the specific intent to do the act in question," it failed to charge the jury that in order for it to find that the defendant acted willfully, it must find that the defendant had the specific intent to deprive a person of a constitutional right. That failure by the district court was error. Screws v. United States, supra, 325 U.S. at 101, 65 S.Ct. at 1035; United States v. Stokes, supra, 506 F.2d at 776-77.
29
In United States v. Ramey, 336 F.2d 512 (4th Cir. 1964), cert. denied, 379 U.S. 972, 85 S.Ct. 649, 13 L.Ed.2d 564 (1965), the Fourth Circuit approved a trial court's instruction on the term "willfully" as used in 18 U.S.C.A. § 242 that stated:
30
In law, the use of the words "wilful" and "wilfully" generally imply a conscious purpose to do wrong. Doing a thing knowingly and willfully implies not only a knowledge of the thing done, but a determination to do it with evil purpose or motive * * *.
31
Id. at 515.
32
The district court's failure to charge the jury that willfully, as used in Section 242, means acting with bad purpose or evil motive was reversible error. We are aware that the Supreme Court has held that the word "willfully," as used in Internal Revenue Code § 7206(1), 26 U.S.C.A. § 7206(1), simply means "a voluntary, intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976) (per curiam). The Court stated that proof of no other motive, such as bad faith, evil motive, or evil intent is required. The Court in Pomponio reversed the Fourth Circuit which had held that Section 7206(1) requires a finding of bad purpose or evil motive. 528 F.2d 247, 249 (1975). We do not read Pomponio as affecting our construction of the willfulness requirement of 18 U.S.C.A. § 242. The Supreme Court in Pomponio expressly noted that its opinion was addressing willfulness only in the context of the Internal Revenue Code. The Supreme Court recognized in Screws v. United States, supra, 325 U.S. at 101, 65 S.Ct. at 1035, that the construction of the word "willfulness" depends on its context and the statute involved.
33
The Government contends that, even if the district court erred in failing to correctly charge the jury, that error is harmless beyond a reasonable doubt. See United States v. Vines, 580 F.2d 850, 852-53 (5th Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 665 (1978). The error in this case is not harmless because the jury indicated, by requesting that the court re-read its instruction on willfulness, that it had problems with the element of willfulness. That element was clearly a crucial consideration of the jury in its deliberations.
34
Because we reverse on the issue of the adequacy of the jury instruction, we do not consider the issue of the trial court's denial of Kerley's motion for judgment of acquittal.
35
The conviction of Kerley is VACATED and the case is REMANDED for a new trial.
1
18 U.S.C.A. § 242 provides:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.
2
Fla.Stat.Ann. § 784.03 provides:
(1) A person commits battery if he:
(a) Actually and intentionally touches or strikes another person against the will of the other; or
(b) intentionally causes bodily harm to an individual.
(2) Whoever commits battery shall be guilty of a misdemeanor of the first degree ...
3
No plea of double jeopardy would have been appropriate in this case because the due process clause of the federal constitution does not bar subsequent prosecution by the separate and distinct federal sovereignty. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)
4
Defendant requested that the court instruct the jury on the definition of "willfully" as follows:
An act is done "willfully" if done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.
5
The Government's proposed instruction No. 8 stated:
With regard to the Fourth Element, willfulness, I instruct you that an act is done willfully if it is done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is, with bad purpose to disobey or disregard the law. In the case of the statute involved here, it means with a specific intent to deprive Daniel Ralph de la Osa of liberty without due process of law.
This proposed instruction then defined specific intent.
It is not necessary to show or prove that the defendant was thinking in Constitutional terms at the time of the incident for a reckless disregard for a person's Constitutional rights is clear evidence of specific intent to deprive that person of those rights. You may find that the defendant acted with requisite specific intent even if you find that he had no real familiarity with the Constitution or with the particular Constitutional right involved, provided that you find that the defendant willfully and consciously did the act which deprived the victim of his constitutional rights. Nor does it matter that the defendant may have also been motivated by hatred or revenge or some other emotion, provided the intent which I have described to you is present.
If you find that the defendant knew what he was doing and that he intended to do what he was doing, and if you find that what he did constituted a deprivation of a Constitutional right, then you may conclude that the defendant acted with the specific intent to deprive the victim of that constitutional right.
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664 So.2d 718 (1995)
Yvette SUMNER, Plaintiff-Appellant,
v.
Donald P. SUMNER, Jr., et al., Defendants-Appellees.
No. 95-677.
Court of Appeal of Louisiana, Third Circuit.
November 8, 1995.
Writ Denied February 9, 1996.
*719 Christopher J. Roy Sr., W. Jay Luneau, Alexandria, for Yvette Sumner.
A.R. Johnson IV, Lake Charles, for Donald P. Sumner, Jr. et al.
*720 Before KNOLL, COOKS and SAUNDERS, JJ.
KNOLL, Judge.
This appeal concerns the trial court's granting of a motion for summary judgment in a tort suit that involves a two-vehicle accident on Interstate 49 just north of Alexandria. Yvette Sumner (hereafter Sumner), the mother of Priscilla Sumner, appeals the dismissal of her tort action against Teddie L. Lowe, Lowe's employer, Action Delivery Service, Inc., and Action Delivery's liability insurer, Vanliner Insurance Company, for damages resulting from the death of Priscilla.[1] Sumner contends that there were genuine issues of material fact that should have precluded the dismissal of her action on a motion for summary judgment.
In granting the defendants' motion for summary judgment on the issue of liability, the trial court summarized the facts and stated:
The accident occurred when a 1989 Freightliner 18-wheel tractor/trailer driven by Teddie L. Lowe, stopped his vehicle on the shoulder of I-49. Shortly after the truck came to a stop it was struck in the rear by an automobile driven by Donald P. Sumner, Jr.[2] [Priscilla, the Sumners' twenty-one month old daughter, was in a car seat next to her father. She was killed when the car impacted the 18-wheeler.]
Mr. Lowe had stopped his vehicle on the shoulder of the road to make repairs to his windshield wiper. Mr. Lowe testified that he pulled his vehicle completely off the highway, engaged his brakes and emergency flashers. He also turned on his headlights, taillights and running lights. He concedes that he did not place warning triangles behind or in front of his truck. The only eyewitness to the accident, Roger Pikes, stated that the Sumner vehicle, after passing him, veered suddenly to the right and struck the left rear corner of the truck. Mr. Pikes states that the truck was parked completely on the shoulder of the highway and was at least one to two feet to the right of the fog line.
The state trooper who investigated the accident confirmed that the truck was completely off the traveled portion of the highway and that its emergency flashers were operating.
* * * * * *
In the instance [sic] case, it is true that Lowe, the driver of the stalled truck, did not place red reflectors or other warning devices as proscribed [sic] by LSA-R.S. 32:368. However, the jurisprudence is clear that in order to be actionable, there needs to be some causal connexity between the failure to place such warning devices and any resulting accident. Here, the truck was pulled completely off of the highway and was not obstructing the flow of traffic. Further, the driver of the truck had both his headlights and taillights illuminated as well as having on his four-way emergency flashers and running lights.
In keeping with the spirit and purpose of summary judgments to avoid full scale litigation where there is no genuine issue of material fact, summary judgment is warranted in this case on the issue of liability.
(Citations omitted). (Footnote added).
Sumner contends that there were genuine issues of material fact that should have precluded summary judgment. She first contends that the trial court failed to apply La.R.S. 32:296 and 368 in its analysis of the motion for summary judgment. She further argues that the evidence was unclear about why Lowe chose to park his tractor-trailer on the shoulder of the interstate instead of utilizing an exit ramp located seven-tenths of a mile before the accident site. She also argues that the facts are disputed about whether it was raining hard enough to require Lowe to park on the shoulder of the interstate *721 instead of traveling to the next exit ramp to repair his windshield wiper.
A motion for summary judgment is properly granted only where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966. Appellate review of a summary judgment is de novo, and the appellate court employs the same criteria used by the trial court in determining whether summary judgment is appropriate. Schroeder v. Board of Supervisors, 591 So.2d 342 (La. 1991).
On appeal, Sumner contends that La. R.S. 32:296 and 368 are applicable. La.R.S. 32:296 provides:
A. No person shall stop, park, or leave standing any unattended vehicle on any state highway shoulder when such stopping or parking on the highway shoulder shall obstruct the flow of traffic or is a hazard to public safety, unless such stopping, parking, or standing is made necessary by an emergency, except:
(1) In those areas designated as parking areas by the Department of Transportation and Development, or
(2) By any public utility personnel or public utility equipment engaged in the operation of the utility business, public vehicles owned by public bodies which are engaged in the conduct of official business, or privately-owned vehicles which are engaged in services authorized by the local governing authority.
(B.) In case of an emergency, the driver of such vehicle must operate it in accordance with the normal standards of prudent conduct to protect himself and others from harm.
Under the clear and unambiguous language of R.S. 32:296, this statute is not applicable. As stated in the statute, its applicability is triggered if the vehicle is left unattended. In the present case, it is undisputed that Lowe remained with the vehicle and that he was actually repairing the vehicle's windshield wiper at the time of the accident.
La.R.S. 32:368 provides, in pertinent part:
(A.) Whenever any freight carrying vehicle... is disabled upon the traveled portion of any highway of this state, or the shoulder thereof, at any time when lighted lamps are required on vehicles, the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway except as provided in Subsection B of this Section:
(1) A lighted fuse, a lighted red electric lantern or a portable red emergency reflector shall be immediately placed at the traffic side of vehicle in the direction of the nearest approaching traffic.
(2) As soon thereafter as possible, but in any event within the burning period of the fuse (15 minutes), the driver shall place three liquid burning flares (put torches), or three lighted red electric lanterns or three portable red emergency reflectors on the traveled portion of the highway in the following order:
(a) One, approximately 100 feet from the disabled vehicle in the center of the lane occupied by such vehicle and toward traffic approaching in that lane.
(b) One, approximately 100 feet in the opposite direction of the disabled vehicle and in the center of the traffic lane occupied by such vehicle.
(c) One at the traffic side of the disabled vehicle approximately 10 feet rearward or forward thereof in the direction of the nearest approaching traffic.
* * * * * *
(D.) Whenever any vehicle of a type referred to in this Section is disabled upon the traveled portion of a highway of this state or the shoulder thereof, outside of any municipality, at any time when the display of fuses, flares, red electric lanterns or portable red emergency reflectors is not required, the driver of the vehicle shall display two red flags upon the roadway in the lane of traffic occupied by the disabled vehicle, one at a distance of approximately 100 feet in advance of the *722 vehicle, and one at a distance of approximately 100 feet to the rear of the vehicle.
Duty is a question of law. Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289 (La.1993). La.R.S. 32:368 imposes a duty upon drivers of "disabled" trucks and certain other vehicles to display warning devices during periods of low visibility when the vehicle is disabled on the traveled or shoulder portion of the highway. The statute is a safety measure designed to protect life and property on the highways by providing some type of warning signals to motorists approaching disabled vehicles. Nelson v. Powers, 402 So.2d 129 (La.App. 1 Cir.), writ denied, 409 So.2d 616 (La.1981). In Nelson, the First Circuit further noted:
If La.R.S. 32:368 were interpreted to require the placement of warning devices for every temporary obstruction or condition that forces a truck driver to come to a stop, the consequences would be absurd.... If the condition or phenomenon requires more than a temporary stop or if the intensity of the condition seriously impedes or obstructs the vision of other motorists, a driver subject to the provisions of La.R.S. 32:368 must set out the prescribed warning devices if he stops.
Id. at 134.
After carefully considering La.R.S. 32:368 and the jurisprudence that has addressed it, we find that the statute does not establish a duty that was applicable to the facts presented in the case sub judice.[3]
It is undisputed that Lowe parked the eighteen-wheeler on the shoulder, completely off the traveled portion of the interstate, and that he did not place any warning triangles to the rear of his vehicle. It is likewise undisputed that the eighteen-wheeler had been present on the shoulder for only a matter of minutes, and it did not impede the flow of traffic across the traveled portion of the interstate. Sumner does not contest Lowe's assertion that his stop to repair the windshield wiper was only temporary, that it took only approximately two minutes to repair the wiper, and that the placement of warning devices, as described in La.R.S. 32:368, would have taken more time than the repair that Lowe undertook. Sumner argues that had Lowe been standing at the back of the truck prior to impact, his presence could have been enough to warn a passing motorist of impending danger. This argument is misplaced as there is no duty owed under the circumstances of this case that requires the physical presence of a person to act as a warning. This argument further demonstrates that the absence of warning triangles had no causative link to this accident. This tragic accident was caused by the negligent conduct of one actor, Mr. Sumner. For some unknown reason, Mr. Sumner ignored the clearly visible warning devices Lowe had engaged on the vehicle when Lowe initially stopped the eighteen-wheeler, "veered suddenly to the right and struck the left rear corner of the truck." Simply put, the absence of warning triangles had nothing to do with this accident. Accordingly, the defendants were entitled to summary judgment as a matter of law.
We now turn to the remaining factual assertions Sumner relies upon in her attack on the trial court's summary dismissal of her tort action. Both of Sumner's contentions are grounded in general negligence and relate to Lowe's decision to stop the eighteen-wheeler on the interstate's shoulder. In essence, Sumner states that Lowe should have left the interstate at the exit either directly preceding or just after the accident site, instead of stopping on the shoulder between the exits.
A "genuine issue" is a "triable issue." Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5 Cir.1987). More precisely, "[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94); 639 So.2d 730, 751 *723 (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1983)). In determining whether an issue is "genuine," courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Smith, 639 So.2d 730.
A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577 (La.1989). "Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Smith, 639 So.2d at 751. Simply put, a "material" fact is one that would matter in the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id.
To accept Sumner's factual contentions as genuine issues of material fact, we would have to find that Lowe did not have a legally recognized right to be on the shoulder of the interstate and that disabled vehicles, no matter how short a time they would be parked, could not use the shoulder. This argument is not tenable.
La.R.S. 48:1(21) states, in pertinent part, that the shoulder portion of the highway is provided to accommodate "stopped vehicles, [and] for emergency use." In Suhr v. Felter, 589 So.2d 583 (La.App. 1 Cir.1991), writ denied, 590 So.2d 596 La.1992), the First Circuit held that a truck parked on the shoulder of a highway under ordinary circumstances that did not obstruct the flow of traffic did not constitute fault. Moreover, from the detailed provisions of La.R.S. 32:368, it is clear that disabled vehicles will have occasion to seek refuge on the shoulder of the highway.
In the case sub judice, Lowe testified that he began having difficulties with the windshield wiper on the driver side of the vehicle. Because his wiper was not properly functioning, road grime mixed with mist thrown by passing vehicles collected on Lowe's wind shield and obscured his vision. As stated by Howard McKee, the investigating state trooper, this condition justified Lowe's decision to temporarily park his eighteen-wheeler on the shoulder to tighten the wiper arm. Considering Sumner's two factual assertions, we find that neither factual scenario potentially insures her recovery against defendants, affects her ultimate success, or determines the issue of liability in her favor.
Furthermore, as found by the trial court, it was neither Lowe's parking on the shoulder nor his failure to place warning devices to the rear of his disabled vehicle that caused the accident. Lowe's vehicle was completely on the shoulder, did not impede traffic, and had its headlights, taillights, four-way emergency flashers and running lights illuminated. Considering the facts presented, it was Mr. Sumner's sudden and unexplained intrusion onto the shoulder, as described by Roger Pikes, the eyewitness to the accident, that caused the accident and Priscilla's death. Accordingly, we find no merit to Sumner's objections to the trial court's summary disposition of her lawsuit.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Yvette Sumner.
AFFIRMED.
SAUNDERS, J., dissents and assigns reason.
SAUNDERS, Judge, dissenting.
I respectfully dissent.
LAW
First, I cannot agree with the majority's conclusion that the truck driver had no legal obligation to place the markers. The majority apparently concludes that La.R.S. 48:1(21) permitted defendant to use the shoulder since his was an emergency, but that he was not required by La.R.S. 32:368 to place markers because his vehicle was not "disabled." I cannot accept this suggestion, for I think La.R.S. 32:368 was designed to protect motorists pulling onto the shoulder whether intentionally or inadvertently.
In Rue v. State, Dept. Of Highways, 372 So.2d 1197 (La.1979) (reversing this and the *724 trial court), where the errant driver was presented with "no real or imagined emergency situation," the Supreme Court had this to say:
"A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition."
Id., at 1199. While Rue applied to the question of whether the state could be held liable for transgressions against this right, I believe La.R.S. 32:368 implicitly recognizes this right among fellow motorists.
The case of Nelson v. Powers upon which the majority hinges its contrary conclusion is factually distinguished from the case sub judice. Nelson involved two 18-wheeler truck drivers who heroically decided to drive side-by-side, then stop side-by-side, in an effort to shield other vehicles from an oncoming vehicle running against the traffic traveling eastward on the I-10 Atchafalaya Basin Freeway. Defendant's stop in Nelson was traffic-related, and the court went out of its way to state that the weather played no part in the accident. Under those circumstances, the First Circuit in Nelson properly found La. R.S. 32:368 inapplicable because defendant's truck was not "disabled."
The facts of this case warrant a different conclusion, however. As the court noted in Nelson, the definition of disabled under La. R.S. 32:368 does not require mechanical failure; to the contrary, natural conditions "so intense as to prevent the movement of a vehicle" are sufficient. Badeaux v. Patterson Truck Line, Inc., 247 So.2d 875, 881 (La.App. 3 Cir.), writ denied, (La.1971). In considering this question for the first time, in Badeaux we concluded that La.R.S. 32:368 was intended to include weather-related stops:
Although the popular definition of a disabled vehicle involves mechanical failure, it need not be so limited, and disability may also result from the influence of external phenomena. Certainly when such influence is so intense as to prevent the movement of a vehicle, that vehicle is just as disabled as one which cannot move due to mechanical failure. This is particularly the case for purposes of LSA-R.S. 32:368 which is a safety statute designed to protect other motorists on the highway. It is obvious that a vehicle stopped on the traveled portion of a highway because of external forces which prevent its removal is an equal danger to other motorists as one so stopped because mechanical failure prevents its removal, and the effects of a crash with one or the other would not differ in any respect. Although we find no Louisiana cases on this point, other jurisdictions have given support to our view. Thus the Supreme Court of Oregon, in considering a statute not unsimilar to our own, gave as an example of a disabled automobile one whose lights were suddenly extinguished on a mountain road at night. True, this was a failure of the equipment of the vehicle and not one due to an external cause, but its only effects were to prevent the driver of the automobile from seeing where he was going and even more importantly, to make it difficult for other motorists to see the lightless vehicle. Under these circumstances the automobile was considered disabled for purposes of the statute. Martin v. Oregon Stages, 129 Or. 435, 277 P. 291.
We have an analogous situation in the case at bar. Here the lights of the truck were not extinguished, but the conditions of the atmosphere made it impossible for the driver to see where he was going and they made it extremely difficult for other motorists to see the stopped truck.
Badeaux v. Patterson Truck Line, Inc., 247 So.2d at 881.
I can see nothing in Nelson v. Powers that warrants the majority's appreciation of the law. Indeed, the court in Nelson expressly endorsed an interpretation of La.R.S. 32:368 completely at odds with the conclusion the majority reaches today:
We agree with the Third Circuit that some atmospheric conditions, like the smog in that case and like heavy fog or rain in other situations, can be sufficiently intense to "disable" vehicles within the meaning of La.R.S. 32:368. If the condition or phenomenon requires more than a temporary *725 stop or if the intensity of the condition seriously impedes or obstructs the vision of other motorists, a driver subject to the provisions of La.R.S. 32:368 must set out the prescribed warning devices if he stops.
Nelson v. Powers, 402 So.2d at 134.[1]
FACTUAL ISSUES REMAIN
Second, I disagree with the majority's finding, without the benefit of further factual development, that as a matter of fact, defendant is necessarily free of fault.
In arriving at its conclusion, the majority observes that plaintiff has not disputed certain elements of the case, but noticeably lacking among the recited list of concessions is the level of visibility that day. From what indication I can gather from the limited facts available to us (i.e., without a trial transcript), when the accident occurred it was rainy and foggy, just the type of conditions that a fact finder, given the opportunity, might find imposed upon defendant a duty to properly maintain his vehicle; wait until the next exit; or employ the safety devices for their intended purposes. Nelson; Badeaux.
The jury, whose constituents every day are obligated to wear seat belts just in case they should happen to have one of the two or three automobile accidents of their lifetime, might also conclude that the driver was required to take a few moments to protect lives, particularly since he knew on that specific occasion there existed hazardous weather and traffic conditions.
A summary judgment is not to be used as a substitute for a trial on the merits. This rule permits no exception merely because our review of a cold, limited record tends to suggest that the opponent of the motion is unlikely to prevail at trial.
Weighing such conflicting evidence has no place in a hearing on a motion for summary judgment even when it appears from the record that the nonmoving party may experience difficulty in achieving ultimate success, Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791-92 (La.App. 3d Cir.1988), writs denied, 525 So.2d 1048, 1049 (La.1988), as credibility determinations are best left to the trier of fact. Bercegeay v. Cal-Dive Intern., Inc., 583 So.2d 1181, 1183 (La.App. 1st Cir.), writs denied, 589 So.2d 1070 (La.1991); Ouachita Nat. v. Gulf States Land & Dev., 579 So.2d 1115, 1120 (La.App. 2d Cir.), writs denied, 587 So.2d 695 (La.1991); Roger v. Dufrene, 553 So.2d 1106 (La.App. 4th Cir. 1989), writs denied, 559 So.2d 1358 (La. 1990).
Hopkins v. Sovereign Fire & Cas. Ins., 626 So.2d 880 (La.App. 3 Cir.1993), writs denied, 634 So.2d 390, 402 (La.1994). Moreover, on motions for summary judgment, any reasonable doubt must be resolved against the mover and in favor of trial on the merits. Id., citing Indus. Sand and Abrasives v. L. & N.R. Co., 427 So.2d 1152, 1153 (La.1983).
This is a question I believe the trier of fact must resolve, after first obtaining answers to several predicate questions, among them:
(a) whether it was the certainly inclimate weather or the condition of his vehicle that required its driver to pull over;
(b) and if the former, how the severity of the weather might excuse the driver's not waiting until the next exit only 7/10ths of one mile further to repair the vehicle, yet not warrant charging him with some degree of the blame for imposing unnecessary risk upon other motorists similarly affected by the weather;
(c) but if the latter, why the windshield had not been replaced or repaired sooner.
*726 Only armed with answers to these other questions which might be asked by the cross-examining attorney can the judge or jury draw its most important conclusion, whether markers should have been placed as a matter of fact. Because the majority's disposition of this case on summary grounds forecloses the possibility that these questions might be answered in plaintiff's favor, I respectfully dissent, being of the opinion that more evidence is required.
NOTES
[1] Yvette Sumner's action against her husband, Donald P. Sumner, Jr., and his insurer, Allstate Insurance Company, was dismissed with prejudice after the parties settled the claims for damages. Accordingly, these defendants are no longer involved in this litigation.
[2] Donald P. Sumner, Jr. survived the crash, but sustained brain damage. Because of his injuries, Mr. Sumner has no recollection of the accident. His depositional testimony did not add to the facts and thus was not relied upon by the trial court.
[3] We note that the trial court held that Lowe had a duty to display warning devices. Under our de novo review, we find that the trial court erred in this regard. Nevertheless, we find that he properly granted the defendants' motion for summary judgment.
[1] Moreover, even if La.R.S. 32:368 does not impose such a duty, it does not operate to deny plaintiff's due under La.Civ.Code art. 2315. In Rue, for instance, the Court's inability to allude to any specific statute did not prevent its ruling in plaintiff's favor. See also, e.g., Outlaw v. Bituminous Ins. Co., 357 So.2d 1350 (La.App. 4 Cir.), writ denied, 359 So.2d 1293 (La.1978) (golfer whose ball struck minor who, crouching behind golf bag 172 feet down course, nonetheless liable; golfer could only fulfill his duty by not driving at all).
Finally, placed in legal perspective, I see nothing illogical in plaintiff's theory: If the public fisc in the absence of a express obligation can be held accountable for the conditions of thousands of miles of shoulders, I believe the same should apply to a motorist expressly obligated to take safety measures, particularly when those precautions are designed to address hazards he creates.
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732 N.W.2d 899 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
James Theodore WILLIAMS, Defendant-Appellant.
Docket No. 133311. COA No. 270972.
Supreme Court of Michigan.
June 26, 2007.
On order of the Court, the application for leave to appeal the January 25, 2007 order 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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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 00-10352
(Summary Calendar)
_________________
WANDA CORNELIUS, on behalf of The Estate of Robert C
Cornelius Deceased; SAMUEL CORNELIUS, SR; MARY
CORNELIUS; ERICA CORNELIUS
Plaintiffs - Appellants,
versus
PHILLIP MORRIS INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court
For the Northern District of Texas
DC No. 99-CV-2125-G
September 27, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Appellants Wanda Cornelius, et al. (“plaintiffs”), appeal from the district court’s dismissal of
their claims against appellee Phillip Morris Incorporated (“Phillip Morris”) for civil assault under Tex.
Penal Code Ann. § 22.01(a). The district court found that the plaintiffs’ claims were barred by Tex.
*
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.
Civ. Prac. & Rem. Code § 82.004(a). We affirm.
The plaintiffs sought damages for Robert C. Cornelius’s death, which they allege was caused
by Philip Morris cigarettes to which he was addicted. They claim that Phillip Morris committed a civil
assault under Texas law by producing and selling products containing nicotine which caused nicotine
addiction. Philip Morris thereby allegedly intentionally, knowingly, or recklessly caused the plaintiffs’
harm.
The district court found that the plaintiffs’ claims are barred by § 82.004 of the Texas Civil
Practice and Remedies Code, which relieves manufacturers and sellers of “inherently unsafe”
products, including tobacco, from liability in products liability actions. Adopted in 1993, § 82.004(a)
reads:
In a products liability action, a manufacturer or seller shall not be liable if:
(1) the product is inherently unsafe and the product is known to be unsafe by
the ordinary consumer who consumes the product with the ordinary knowledge
common to the community; and
(2) the product is a co mmon consumer product intended for personal
consumption, such as . . . tobacco. . . .
Tex. Civ. Prac. and Rem. Code § 82.004(a).1 Adopted at the same time, § 82.001(2) defines a
“products liability action”:
“Products liability action” means any action against a manufacturer or seller for
recovery of damages arising out of personal injury, death, or property damage
allegedly caused by a defective product where the action is based in strict tort liability,
strict products liability, negligence, mis-representation, breach of express or implied
warranty, or any other theory or combination of theories.
Id. § 82.001(2).
The plaintiffs raise several challenges to the district court’s decision that their lawsuit was
1
Only actions based on manufacturing defects or breach of express warranties are
exempted from the § 82.004(a) bar. See id. § 82.004(b).
-2-
precluded by § 82.004. We consider these challenges in turn.
First, the plaintiffs claim that it is contrary to the public policy of Texas to create immunity
under § 82.004(a) when doing so rewards or condones t he commission of an offense defined as a
crime in Penal Code § 22.01(a)(1). However, § 82.004 itself represents the public policy chosen by
the Texas legislature. Based on prior cases dealing with nearly identical facts, we are persuaded that
it intends to preclude the plaintiffs’ claims, and we therefore decline the plaintiffs’ suggestion that,
based on their creative pleading, § 22.01 provides a public policy sufficient to preclude application
of § 82.004(a) here.
Second, the plaintiffs claim that § 82.004 does not apply because their claims are predicated
on the addictive nature of nicotine contained in cigarettes and the addictive nature of cigarettes is not
“common knowledge” as required by the Code. We expressly considered and rejected this argument
in Sanchez v. Liggett & Myers, Inc., 187 F.3d 486, 490-91 (5th Cir. 1999). We held that “the only
requirement of § 82.004(a) as to common knowledge is that the product be ‘known to be unsafe.’”
Id. at 490. We found that this test was satisfied as a matter of law as to tobacco. See id. (citing
Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996); American Tobacco Co., Inc.
v. Grinnell, 951 S.W. 2d 420, 429 (Tex. 1997)). Therefore, even though Sanchez’s claims were
based on the addictive effect of tobacco, § 82.004(a) was satisfied. See Sanchez, 187 F.3d at 490-91.
Sanchez precludes the plaintiffs’ second argument.
Third, the plaintiffs claim that the § 82.004 bar is inapplicable to the present suit because the
plaintiffs’ claims do not require proof of a product defect. This general argument was rejected in the
so-called Hulsey cases, which we affirmed after oral argument. See Hulsey v. American Brands, Inc.,
1997 WL 271755 (S.D.Tex. 1997), aff’d, 139 F.3d 898 (5th Cir.) (unpublished), cert. denied, 525
-3-
U.S. 868 (1998); Oglesby v. American Brands, Inc., 1997 WL 881214 (S.D.Tex. 1997), aff’d, 139
F.3d 898 (5th Cir.) (unpublished), cert. denied, 525 U.S. 868 (1998); Whirley v. American Brands,
Inc., 1997 WL 881215 (S.D.Tex. 1997), aff’d, 139 F.3d 898 (5th Cir.) (unpublished), cert. denied,
525 U.S. 868 (1998). Seeking to recover for injuries sustained smoking cigarettes, the Hulsey
plaintiffs asserted that tobacco companies knew that nicotine causes addiction in persons who use
tobacco products and concealed this knowledge intentionally, knowingly, recklessly, maliciously,
fraudulently, negligently, grossly negligently, and assaultingly. See Hulsey, 1997 WL 271755, at *1.
The district court found that these claims were barred under § 82.004 and expressly rejected the claim
that § 82.004 did not apply because the plaintiffs’ claims were not predicated on a product defect.
See id. at *5. It noted that the plaintiffs sought to recover for injuries sustained as a result of the
undisclosed addictive nature of cigarettes, and it found that this was the type of claim intended to be
covered by § 82.001(2) and § 82.004. See id.
Here, as in the Hulsey cases, the plaintiffs seek to recover damages for personal injuries
sustained as a result of the addictive properties of nicotine. We are persuaded by Hulsey’s reasoning
and decline to find § 82.004 inapplicable because civil assault claims are not predicated on the
existence of a product defect.
The plaintiffs argue that § 82.004(a) does not apply to their actions because it applies only
to “products liability” claims and their claim is for assault. In Sanchez, the plaintiff raised claims of
fraud, conspiracy, and violation of the Texas Deceptive Trade Practices Act, and claimed that these
were not “product liability claims” subject to § 82.004. See Sanchez, 187 F.3d at 491. We found
that, while Sanchez’s claims might not be “traditional” products liability claims, “the definition in §
82.001(2) plainly forecloses this argument.” Id. We noted that “products liability action” as defined
-4-
in § 82.001(2) includes any action arising out of personal injury or death from a defective product
regardless of the theory or combination of theories under which the claim is brought. See id. (citing
§ 82.001(2)). Because Sanchez’s claims arose from his allegedly wrongful death caused by smoking
cigarettes, “all theories of recovery asserted by the Sanchez Family are covered, with the exceptions
of manufacturing defect and breach of warranty.” Id. (citing § 82.004(b)).
As in Sanchez, the plaintiffs’ claims here arise out of personal injuries allegedly caused by
smoking addictive cigarettes. Sanchez clearly implies that such claims are covered by § 82.004
regardless of how they are pled, and we are persuaded that this was the intent of the broad definition
of “products liability claim” contained in § 82.001(2). See also Hulsey, 1997 WL 881214, at *5 (also
finding claims for injuries sustained as a result of addictive properties of cigarettes to be “products
liability” claims under § 82.001(2)).
Finding the plaintiffs’ arguments to be without merit, we AFFIRM2 the final judgment of the
district court dismissing their claims.
2
We note that we have already rejected nearly identical arguments to those raised by
the plaintiffs here in two prior cases. See Lopez v. R.J. Reynolds Tobacco Co., No. 00-40247 (5th
Cir. June 26, 2000); Perez v. Philip Morris Inc., No. 00-40146 (5th Cir. June 23, 2000).
-5-
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884 F.2d 744
132 L.R.R.M. (BNA) 2330, 112 Lab.Cas. P 11,441
RAILWAY LABOR EXECUTIVES' ASSOCIATION, Appellant,v.PITTSBURGH & LAKE ERIE RAILROAD COMPANY.
No. 87-3664.
United States Court of Appeals,Third Circuit.
Submitted July 31, 1989.On Remand from the Supreme Court of the United States.Decided Sept. 7, 1989.
John O'B. Clarke, Jr., Highsaw & Mahoney Washington, D.C., for appellant.
Richard L. Wyatt, Jr., Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for appellee.
Clyde J. Hart, Jr., I.C.C., Washington, D.C., for amicus curiae, I.C.C.
Before SLOVITER, BECKER, and MANSMANN, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
1
In Railway Labor Executives' Association v. Pittsburgh & Lake Erie Railroad Co., 831 F.2d 1231 (3d Cir.1987), this court summarily reversed an order of the district court enjoining the Railway Labor Executives' Association (RLEA) from proceeding with its strike against Pittsburgh & Lake Erie Railroad Co. (Railroad). The Supreme Court granted certiorari and consolidated this case with the subsequent opinion of this court in a related matter in which the Railroad appealed from an order in the district court enjoining the sale of its assets pending bargaining with the RLEA under the Railway Labor Act notwithstanding that the Interstate Commerce Commission had approved the sale. See Railway Labor Executives' Association v. Pittsburgh & L.E.R.R. Co., 845 F.2d 420 (3d Cir.1988)
2
The Supreme Court reversed our judgment in the latter case. --- U.S. ----, 109 S.Ct. 2584, 2597, 105 L.Ed.2d 415 (1989). It held, however, that in the former case we were correct in setting aside the injunction against the strike, 109 S.Ct. at 2598, but vacated our decision to permit us to deal with the question whether an injunction against the strike could be based on the provisions of the Railway Labor Act "if it is a live issue." Id. at 2599.
3
On remand, we requested the parties to file letter memoranda directed to that issue. The RLEA, joined by the United Transportation Union (UTU), formerly a member organization, responded that there are "no live issues left in this case involving rail labor's appeal from the preliminary strike injunction," because the sales agreement which was the subject of our earlier opinion had terminated and there are ongoing negotiations with the Railroad with respect to protection of employees who may be affected by the restructuring of that carrier. Letter from John O.B. Clarke, Jr. dated August 21, 1989. The unions, therefore, ask us to vacate the strike injunction and remand this case to the district court with instructions to dismiss as moot the Railroad's request for such an injunction.
4
The Railroad agrees that the 1987 strike no longer presents a "live issue," and notes that it did not sell its lines to Railco and "while it retains the option to do so, it has no outstanding plans to sell the lines and assets that were at issue in the Railco transaction." Letter from Richard L. Wyatt, Jr. dated August 22, 1989. It agrees that it is negotiating new collective bargaining agreements with its unions and suggests that we should dismiss this case as moot. Surprisingly, the Interstate Commerce Commission, who is in this case only as an intervenor, argues that the issue remains "live" and that this court should now determine the legal issue which we did not previously address. Letter from Clyde J. Hart, Jr. dated August 21, 1989.
5
Under the circumstances and on the basis of the representations made by the real parties in interest, it appears to us that there is no longer any "live" issue. However, we would be obliged in any event to remand to the district court if the matter is moot so that it can dismiss the case. See Great Western Sugar Co. v. Nelson, 442 U.S. 92, 99 S.Ct. 2149, 60 L.Ed.2d 735 (1979). Therefore, in an abundance of caution, we will remand this case to the district court so that it can make a determination as to whether there is, in fact, any remaining "live" issue and, if not, so that it can vacate its injunction and dismiss the matter as moot.
| {
"pile_set_name": "FreeLaw"
} |
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/30/2018 01:13 AM CDT
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BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
Cite as 299 Neb. 422
Butler County Landfill, Inc., appellee,
v. Butler County Board of
Supervisors, appellant.
__ N.W.2d ___
Filed March 23, 2018. No. S-17-276.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
which does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent from the lower court’s decision.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. ____: ____. Where a lower court lacks subject matter jurisdiction to
adjudicate the merits of a claim, issue, or question, an appellate court
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
4. Political Subdivisions: Final Orders: Appeal and Error. A district
court order setting aside, annulling, vacating, or reversing a siting
approval decision in a review pursuant to Neb. Rev. Stat. § 13-1712
(Reissue 2012) is a final order.
5. Jurisdiction: Appeal and Error. An appellate court and the tribu-
nal appealed from do not have jurisdiction over the same case at the
same time.
6. Political Subdivisions: Jurisdiction: Time: Appeal and Error. A
failure to comply with the requirement under Neb. Rev. Stat. § 13-1712
(Reissue 2012) to petition for a hearing before the district court within
60 days after notice of the siting body’s decision deprives the district
court of jurisdiction to review a siting approval decision.
Appeal from the District Court for Butler County: M ary C.
Gilbride, Judge. Appeal dismissed.
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Kristopher J. Covi and Steven P. Case, of McGrath, North,
Mullin & Kratz, P.C., L.L.O., and Julie L. Reiter, Butler
County Attorney, for appellant.
Robert H. Epstein and Ryan C. Hardy, of Spencer Fane,
L.L.P., and Stephen D. Mossman, of Mattson Ricketts Law
Firm, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
The Butler County Board of Supervisors (the Board)
appeals from the order of the district court for Butler County
which reversed the Board’s decision to deny an application by
Butler County Landfill, Inc. (BCL), to expand its solid waste
disposal landfill area located in Butler County, Nebraska. We
conclude that the district court lacked jurisdiction to enter
the February 7, 2017, order from which this appeal is taken
and that, consequently, we lack jurisdiction over this appeal.
We therefore vacate the district court’s order and dismiss
this appeal.
STATEMENT OF FACTS
BCL, a wholly owned subsidiary of Waste Connections
of Nebraska, Inc., operates a solid waste landfill located in
Butler County near David City, Nebraska. The landfill has
been in existence since 1986, and an expansion of the landfill
was approved in 1992 which allowed it to accept solid waste
from other counties. The record indicates that by 2015, BCL
was accepting solid waste from 15 to 20 counties in eastern
Nebraska and some additional counties outside Nebraska.
BCL determined that it needed to expand the solid waste
landfill area in Butler County. Neb. Rev. Stat. §§ 13-1701
to 13-1714 (Reissue 2012) are the statutes that govern sit-
ing approval procedures for solid waste disposal areas and
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solid waste processing facilities. These statutes indicate that if
denied, an applicant for siting approval can reapply after the
passage of 2 years. See § 13-1711.
As required by § 13-1702, BCL filed a request for siting
approval with the Board on July 6, 2015. In its request, BCL
asserted, inter alia, that as the scope of the area it served has
expanded, the amount of solid waste it accepted had increased.
BCL asserted that in the mid-1990’s, it had accepted approxi-
mately 100,000 tons of solid waste per year; that by 2015, it
accepted approximately 550,000 tons of solid waste per year;
and that it projected that by 2020, it would receive 800,000
tons of solid waste per year. The size of the expanded landfill
approved in 1992 was 144.79 acres. In the July 6 request, BCL
sought approval to further expand into a 160-acre parcel of
land it had purchased that was contiguous to the south side of
its existing landfill.
As required by § 13-1706, the Board, on October 28, 2015,
held a public hearing on BCL’s request. Part of the purpose of
a public hearing under § 13-1706 is to “develop a record suf-
ficient to form the basis of an appeal of the decision.” At the
public hearing, the Board heard testimony by representatives
of BCL and by members of the public, including those who
favored and those who opposed BCL’s request.
Following the public hearing and a written comment period
which served to supplement the record of the public hearing,
the Board met on December 14, 2015, to deliberate BCL’s
request. At that meeting, the Board considered, inter alia, the
statutory criteria for siting approval set forth in § 13-1703,
which provides that “[s]iting approval shall be granted only
if the proposed area or facility meets all of” six specified
criteria. The record of the deliberations shows that the Board
considered in turn whether each criterion had been shown.
At the end of the Board’s discussion of each criterion, a poll
was taken of the seven supervisors as to whether each super-
visor thought that specific criterion had been met. Based on
the polling of supervisors during the meeting, all supervisors
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agreed that three of the six criteria had been met, and all
supervisors agreed that one criterion had not been met. With
respect to the two remaining criteria, the votes were split,
with a majority voting in each case that the criteria had not
been met.
At the end of the discussion, based on the polling as to
each criterion, a supervisor moved to deny the application,
another supervisor seconded the motion, and the Board unani-
mously voted to deny the application. The supervisors there-
after signed a document titled “Decision Regarding Siting
Approval,” which set forth the procedures that had been fol-
lowed with regard to BCL’s application and which concluded
that “[b]ased upon the finding that [BCL] has failed to meet
all criteria required to be met under [§] 13-1703 it was moved
. . . and seconded . . . that the [BCL application] be denied.
Upon roll call vote, the motion was unanimously passed.” This
December 14, 2015, written decision did not specify which
criteria were not met and did not further set forth reasons for
the decision.
On February 10, 2016, BCL filed a petition in the district
court for Butler County seeking judicial review, pursuant to
§ 13-1712, of the Board’s denial of its siting application. At
a hearing on the petition held on March 21, the district court
received into evidence a transcript of the public hearing held
October 28, 2015; the exhibits received at the public hearing; a
transcript of the Board’s December 14, 2015, meeting; and the
Board’s decision dated December 14, 2015.
After an additional hearing, the district court on June 17,
2016, filed a journal entry in which it referred to § 13-1712,
which requires that “the district court shall consider the writ-
ten decision and reasons for the decision of the . . . county
board and the transcribed record of the hearing held pursu-
ant to [§] 13-1706.” The court concluded that in addition to
a written decision and a transcript of the public hearing, the
statute required the Board to “make a written statement of the
reasons for its decision.” The court stated that in this case, the
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Board “simply found that [BCL] had failed to demonstrate the
statutory requirements but did not specify any of its reasons
for reaching that conclusion.” Although the district court’s
jurisdiction was conferred under § 13-1712, rather than under
the Administrative Procedure Act, the court cited cases under
the Administrative Procedure Act regarding a failure “to make
findings of fact and conclusions of law.” The court concluded
its June 17 journal entry with the following paragraph, which
was titled “Remand”:
The failure of the [B]oard to make specific fact find-
ings as required by statute, necessitates that the order
entered December 14, 2015 be set aside and the matter
remanded to the . . . Board . . . with directions to make
findings of fact supporting the order which they shall
issue within thirty days of this remand.
For completeness, we note that because we lack jurisdiction
over this appeal, we make no comment regarding the cor-
rectness of the district court’s reading of the requirements of
§ 13-1712.
On July 14, 2016, the Board filed in the district court a
“Notice of Compliance” stating that it had complied with
the court’s order. The Board attached to the filing a certi-
fied copy of a resolution passed by the Board on July 13
in which it stated that it had denied BCL’s application by
a unanimous vote and that it was adopting findings of fact
“in further support of its denial” of BCL’s application. In a
document attached to the resolution, the Board stated that
the supervisors unanimously determined that BCL satisfied
three criteria, that the supervisors unanimously determined
that BCL failed to satisfy one criterion, and that a majority of
the supervisors determined that BCL failed to satisfy the two
remaining criteria. The Board set forth its reasons for each of
these determinations.
After the Board adopted the resolution on July 13, 2016,
BCL did not file a new petition for judicial review pursuant
to § 13-1712. Nevertheless, after the Board filed its notice of
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compliance, the district court held a hearing on October 25 and
received briefing. At the conclusion of the hearing, the court
stated that it was taking the matter under advisement.
On February 7, 2017, the district court filed an order in
which it reversed the Board’s decision to deny the application
and remanded the matter to the Board with directions for the
Board to approve BCL’s application. In the February 7 order,
the court specifically addressed each of the three criteria that
the Board or a majority of the Board had determined BCL
had not met. The court cited evidence from the record and
determined as to each criterion that the Board’s finding that
the criterion was not met was in error. The court concluded
that the Board’s denial of BCL’s application “was not based
on competent evidence in the record, was contrary to law and
was arbitrary and capricious.” The court further concluded that
based on the application, the record, and the relevant evidence,
the Board should have approved BCL’s application. The court
therefore reversed the Board’s order denying BCL’s applica-
tion and remanded the matter to the Board with directions to
approve the application.
The Board appeals the February 7, 2017, order.
ASSIGNMENT OF ERROR
The Board claims that the district court erred when it deter-
mined that the Board acted arbitrarily and capriciously when it
denied BCL’s application.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclu-
sion independent from the lower court’s decision. Campbell v.
Hansen, 298 Neb. 669, 905 N.W.2d 519 (2018).
ANALYSIS
[2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
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jurisdiction over the matter before it. Rafert v. Meyer, 298 Neb.
461, 905 N.W.2d 30 (2017). Where a lower court lacks subject
matter jurisdiction to adjudicate the merits of a claim, issue, or
question, an appellate court also lacks the power to determine
the merits of the claim, issue, or question presented to the
lower court. Kozal v. Nebraska Liquor Control Comm., 297
Neb. 938, 902 N.W.2d 147 (2017).
Prior to our moving this case to our docket, the Nebraska
Court of Appeals conducted a jurisdictional review. Following
that review, the Court of Appeals issued an order to show
cause in which it stated that a question existed “as to how BCL
came back before the District Court following the court’s June
17[, 2016,] order vacating the December 14, 2015 decision and
remand back to the Board.” The Court of Appeals stated that
there was no indication in the record on appeal that BCL had
filed a new petition in the district court after the Board issued
its findings of fact and restated its decision to deny BCL’s
application. The Court of Appeals further stated that there was
a question whether a second petition was necessary given the
nature of the district court’s remand. In its response to the
order to show cause, BCL conceded that no second petition
had been filed, but BCL asserted that a second petition was
not necessary. Based on BCL’s response, the Court of Appeals
directed the parties “to include and address in their briefs the
issue of whether a second petition was required following
the District Court’s order requiring the Board to make find-
ings of facts and the Board’s subsequent compliance with the
Court’s order.”
The parties briefed the jurisdictional issue, and we granted
BCL’s petition to bypass the Court of Appeals. We now con-
sider the jurisdictional issue. As explained below, we conclude
that we do not have jurisdiction over this appeal, because the
district court did not have jurisdiction when it entered the
February 7, 2017, order, from which the Board appeals. The
district court’s June 17, 2016, order returned jurisdiction to
the Board, and the district court was divested of jurisdiction.
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After the Board acted on the district court’s order, BCL took
no action to again vest jurisdiction in the district court, and
as a consequence, the district court’s rulings after its June 17
remand were issued without authority.
As noted above, BCL filed a timely petition under § 13-1712
for the district court to review the Board’s December 14, 2015,
order denying BCL’s application. The district court took action
on that petition on June 17, 2016, when it determined that
the Board had failed to make specific written findings of fact
which the court believed were required by statute. The court
thereby effectively concluded that the Board’s order did not
conform to the law. The court therefore ordered the Board’s
December 14, 2015, order to be “set aside and the matter
remanded to the . . . Board . . . with directions to make findings
of fact supporting the order which they shall issue within thirty
days of this remand.” In the order, the district court “set aside”
the Board’s order and remanded the matter to the Board for
further action, but the district court did not explicitly purport
to reserve jurisdiction in itself.
After the Board complied with the order and filed its notice
of compliance in the district court, the parties and the district
court proceeded upon the apparent assumption that the district
court had acquired jurisdiction at the time BCL had filed its
petition for review of the December 14, 2015, order and that
the district court continued to exercise jurisdiction. Given
certain inferences in the language of the June 17, 2016, order,
this assumption might have seemed reasonable; on remand, the
Board acted within the timeframe set forth by the court in the
June 17 order, and the court promptly continued with proceed-
ings in the case after the Board gave notice of its compliance.
However, the assumption does not comport with the facts or
applicable law, and we must therefore determine in this case
which body—the district court or the Board—had jurisdiction
at what time.
[4] We note first that the court in the June 17, 2016,
order stated that the Board’s failure to make findings of fact
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“necessitate[d] that the order entered December 14, 2015 be
set aside and the matter remanded” to the Board. Black’s Law
Dictionary 1580 (10th ed. 2014) defines “set aside” as “to
annul or vacate (a judgment, order, etc.).” It has been stated
that in an appeal to the district court by petition in error
pursuant to Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue
2016), a judgment of the district court reversing an inferior
tribunal is a final order. See County of Douglas v. Burts, 2
Neb. App. 90, 507 N.W.2d 310 (1993) (citing Tootle, Hosea
& Co. v. Jones, 19 Neb. 588, 27 N.W. 635 (1886)). We simi-
larly conclude that a district court order setting aside, annul-
ling, vacating, or reversing a siting approval decision in a
review pursuant to § 13-1712 is a final order. In Tri-County
Landfill v. Board of Cty. Comrs., 247 Neb. 350, 526 N.W.2d
668 (1995), we held that in conformity with Neb. Rev. Stat.
§ 25-1911 (Reissue 2016), in an appeal of a siting approval
case under §§ 13-1701 to 13-1714, a judgment rendered
or final order made by the district court may be reversed,
vacated, or modified for errors appearing on the record.
Applying the foregoing principles of law, the district court’s
June 17, 2016, order, which vacated the Board’s decision,
was a judgment under § 13-1712, and when it was not timely
appealed, it became final.
In further support of our jurisdictional analysis, we note
that the district court remanded the matter to the Board, and
when the Board entered an order in compliance with the order
of remand, the district court lost its power to further modify
its order and, by extension, lost its power to act on this case.
We have said:
The jurisdiction of the supreme court over its own
judgments and orders is, in general, the same as that
of any other court of record, and hence it may alter or
modify such judgments or orders and correct its mandates
accordingly at any time during the term at which they
are rendered, unless its mandate has been filed and acted
upon in the lower court prior to the end of the term.
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Horton v. State, 63 Neb. 34, 38, 88 N.W. 146, 147 (1901).
Likewise, when the district court remands a matter and the
body to which the matter was remanded acts on that order, the
district court’s power to modify its order ceases. See County of
Douglas v. Burts, supra.
[5] Finally, we observe that it would be inconsistent with
our jurisprudence for the Board and the district court to have
jurisdiction over the matter at the same time. As a general
proposition, an appellate court and the tribunal appealed from
do not have jurisdiction over the same case at the same time.
Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d
469 (1996). See State Bank of Beaver Crossing v. Mackley,
118 Neb. 734, 735, 226 N.W. 318, 318 (1929) (“[i]t is not
conceivable that both the supreme court and the district court
could at the same time have jurisdiction of this cause”). See,
also, County of Douglas v. Burts, supra. We find this concept
to be applicable as between the tribunal that tries a matter
and the court that reviews or hears appeals from that tribu-
nal’s decisions. In this case, the Board acted like a tribunal
with regard to the siting approval decision under §§ 13-1701
to 13-1714.
[6] Returning to the facts in this case, the Board filed its
decision to deny BCL’s application on December 14, 2015,
and BCL vested jurisdiction in the district court when it filed
its petition for review pursuant to § 13-1712. The district
court lost jurisdiction when it set aside the Board’s order
and remanded the matter to the Board on June 17, 2016.
The Board necessarily had jurisdiction on July 13, when it
adopted the resolution of that date. The record shows, and
BCL concedes, that after the Board adopted the resolution
on July 13, BCL did not within 60 days after notice of the
decision file a new petition for a hearing before the district
court, as required under § 13-1712. We hold that a failure to
comply with the requirement under § 13-1712 to petition for
a hearing before the district court within 60 days after notice
of the siting body’s decision deprives the district court of
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jurisdiction to review a siting approval decision. See, simi-
larly, Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143
(2015) (determining that failure to file appeal within 30 days
of judgment or final order as required for review on petition in
error under § 25-1901 deprives district court of jurisdiction to
hear appeal). We note that § 13-1712 specifically requires “the
applicant” to file a petition; hence, the Board’s act of filing its
notice of compliance in the district court on July 14 could not
satisfy the requirement under § 13-1712 that “the applicant
. . . petition for a hearing.” We reject any suggestion that the
Board’s filing of its notice of compliance in the district court
caused the district court to reacquire jurisdiction after it had
remanded the matter to the Board.
As noted above, in Tri-County Landfill v. Board of Cty.
Comrs., 247 Neb. 350, 526 N.W.2d 668 (1995), we held that
pursuant to § 25-1911, in an appeal siting approval case under
§§ 13-1701 to 13-1714, a judgment rendered or final order
made by the district court may be reversed, vacated, or modi-
fied for errors appearing on the record. In an appeal authorized
by § 25-1911, a party must follow the procedural requirements
of Neb. Rev. Stat. § 25-1912 (Reissue 2016), including the
requirement to file a notice of appeal within 30 days of the
district court’s decision, in order to vest jurisdiction in the
appellate courts. The notice of appeal in this case was filed in
the district court on March 3, 2017. Such notice was obviously
not timely to give this court jurisdiction to review the June 17,
2016, order. Instead, the notice of appeal purports to appeal
from the district court’s February 7, 2017, order. However,
because the district court did not have jurisdiction to enter
that order, we consequently do not have jurisdiction to hear
this appeal.
When an appellate court is without jurisdiction to act, the
appeal must be dismissed. Kozal v. Nebraska Liquor Control
Comm., 297 Neb. 938, 902 N.W.2d 147 (2017). However, an
appellate court has the power to determine whether it lacks
jurisdiction over an appeal because the lower court lacked
- 433 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
Cite as 299 Neb. 422
jurisdiction to enter the order; to vacate a void order; and, if
necessary, to remand the cause with appropriate directions. Id.
Having determined that we lack jurisdiction over this appeal,
we vacate the district court’s February 7, 2017, order, which
the district court was without jurisdiction to enter, and we
remand the cause to the district court with directions to dismiss
for lack of jurisdiction.
CONCLUSION
On June 17, 2016, the district court “set aside” the Board’s
December 14, 2015, decision denying BCL’s siting application
and remanded the matter to the Board to make findings of
fact. As a result of this order, jurisdiction was returned to the
Board. After the Board acted on the remand, no petition was
filed that would have again vested the district court with juris-
diction. We therefore conclude that the district court lacked
jurisdiction to enter the February 7, 2017, order appealed in
this case, and consequently, we lack jurisdiction over this
appeal. As a result, we vacate the district court’s February 7,
2017, order and dismiss this appeal.
A ppeal dismissed.
K elch, J., not participating in the decision.
Wright, J., not participating.
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163 Cal.App.4th 679 (2008)
In re R.D., a Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant,
v.
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN'S SERVICES et al., Respondents.
No. E044391.
Court of Appeals of California, Fourth District, Division Two.
June 3, 2008.
*681 Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Respondent San Bernardino County Department of Children's Services.
Linda Rehm, under appointment by the Court of Appeal, for Respondent Clarissa V.
Konrad S. Lee, under appointment by the Court of Appeal, for Minor.
OPINION
McKINSTER, J.
Appellant Los Angeles County Department of Children and Family Services (DCFS) originally had jurisdiction of this juvenile dependency case when the child, R.D., and the natural mother both resided in Los Angeles County. Eventually, the mother's parental rights were terminated. More recently, the child was placed with a maternal relative in San Bernardino County. The Los Angeles County Juvenile Court entered orders to transfer the supervision of the case to respondent San Bernardino County Department of Children's Services (DCS). The San Bernardino County Juvenile Court "accepted" the transfer for the sole purpose of entering orders to transfer the matter back to Los Angeles County. DCFS appeals this order of the San Bernardino County Juvenile Court. We reverse.
FACTS AND PROCEDURAL HISTORY
DCFS originally detained the child in 1994 when he was a few months old. The original dependency petition alleged that the mother was a minor herself *682 and was unable to care for the child. The father was absent also, and neither parent had made any provision to care for the child. The Los Angeles County Juvenile Court found a prima facie case that the child was at risk of physical or emotional injury from the failure of the parents to adequately supervise or protect him.
The jurisdictional and dispositional hearing was continued several times to enable the mother to attend, but ultimately proceeded by default. The Los Angeles County Juvenile Court found the allegations of the petition true under Welfare and Institutions Code section 300, subdivisions (b) and (g).[1] DCFS was ordered to provide reunification services.
At a review hearing in October 1995, the Los Angeles County Juvenile Court terminated mother's reunification services, found the child was adoptable, referred the child for an adoption evaluation, and set a selection and implementation hearing under section 366.26. The mother was advised of her right to file a writ petition.
As of March 1997, the Los Angeles County Juvenile Court did not terminate mother's parental rights, but had identified adoption as the selected permanent plan for the child. By November 1997, no adoptive home had yet been found for the child. In January 1998, however, the parental rights of both parents were terminated. The child was declared free from parental custody and control. The Los Angeles County Juvenile Court found by clear and convincing evidence that the child was likely to be adopted and also retained jurisdiction over the child.
In 1999, the child remained in adoptive planning with permanent placement services to be provided to the prospective adoptive parents. Finding an adoptive home proved difficult; accordingly, in July 2000, the permanency plan was changed to long-term foster care.
The child remained in foster placement in 2001 and 2002, while DCFS searched for an adoptive home. In August 2002, DCFS placed the child in the home of Gracie K., who was granted letters of guardianship. In 2003, the Los Angeles County Juvenile Court terminated jurisdiction, as the child was residing with the legal guardian.
In 2005, DCFS filed a petition for modification of the court's orders under section 388. DCFS sought to rescind the legal guardianship, as the child's behavior was very aggressive, and he was running away. The court did not grant the petition at that time, but did so a year later in 2006 when the *683 guardian herself asked for the termination. The Los Angeles County Juvenile Court directed DCFS to search for some relative placement for the child; in the meantime he was placed in a group home.
In the group home placement, the child experienced emotional and behavioral problems. DCFS facilitated contact of the child with a maternal aunt, Clarissa V., with a view to transitioning the child to the aunt's home. After that contact began, the child's disturbances decreased. The child's therapist agreed, noting that the child's behavior and depression were related to his hopelessness in not having contact with his mother or any other family members. His emotional state improved after contact with the aunt. The aunt sought legal guardianship of the child. In September 2006, the guardianship plan came to fruition, and new guardianship letters were issued for the aunt. The child did well in this placement, although he still had some occasional emotional and behavioral outbursts. He was receiving psychotropic medications and meeting with a psychiatrist. He received conjoint therapy with the aunt. The aunt facilitated visits with the mother, which the child enjoyed. The aunt also received support services from an agency to help her deal with the child's issues.
In August 2007, after the child had been residing with the aunt successfully for several months, the Los Angeles County Juvenile Court issued transfer orders to transfer the supervision of the case to San Bernardino County on the ground that the child and the guardian both lived in San Bernardino County.
The San Bernardino County Juvenile Court ordered the "proceedings accepted for sole purpose of return of jurisdiction to Los Angeles [County]." DCS had "recommended that these proceedings not be accepted," on the ground that, under section 17.1, subdivision (e), "if a child has been declared permanently free from the custody and control of his parent, his residence is the county in which the court issuing the order is situated. In this matter, Los Angeles will remain this minor's county of residence as the [termination of parental rights] hearing was held in that county."
The San Bernardino County Juvenile Court immediately conducted its own transfer proceedings, and issued an order transferring the dependency once more to Los Angeles County.
DCFS filed a notice of appeal after the rulings of the San Bernardino County Juvenile Court.
*684 ANALYSIS
I. Standard of Review
Much of the discussion concerns the proper interpretation of the provisions of statutes and court rules. These are issues of law that we review de novo. (Kim v. Superior Court (2006) 136 Cal.App.4th 937, 940 [39 Cal.Rptr.3d 338] [statutory construction]; In re Daniel M. (1996) 47 Cal.App.4th 1151, 1154 [55 Cal.Rptr.2d 17] [interpreting rules of court].) To the extent we review the San Bernardino County Juvenile Court's decision to transfer the case to Los Angeles County, we review that determination for abuse of discretion. (In re J. C. (2002) 104 Cal.App.4th 984, 993 [128 Cal.Rptr.2d 671].)
II. The San Bernardino County Juvenile Court Improperly Refused to Accept the Transfer from Los Angeles County
The principal question is whether the San Bernardino County Juvenile Court improperly rejected the transfer from Los Angeles County. We conclude that it did. The question involves the interplay of California Rules of Court, rules 5.610 and 5.612 (formerly rules 1425 & 1426), as well as Welfare and Institutions Code section 375. (See In re J. C., supra, 104 Cal.App.4th 984, 986-987.)
(1) As this court held in In re J. C., California Rules of Court, rule 5.612(a) (formerly rule 1426(a)), "provides that `[o]n receipt and filing of an order of transfer, the receiving court shall take jurisdiction of the case. The receiving court may not reject the case.' (Italics added.) This could not be clearer." (In re J. C., supra, 104 Cal.App.4th 984, 990.) Accordingly, as in In re J. C., the San Bernardino County Juvenile Court clearly erred in rejecting the transfer.
(2) California Rules of Court, rule 5.612(f) provides: "If the receiving court believes that a change of circumstances or additional facts indicate that the child does not reside in the receiving county, a transfer-out hearing must be held under rules 5.610 and 5.570. The court may direct the department of social services or the probation department to seek a modification of orders under [Welfare and Institutions Code] section 388 or 778 and under rule 5.570." As we indicated in In re J. C., the rules governing the transfer-in procedure mandate the acceptance of jurisdiction, with the provision of a separate transfer-out hearing if circumstances change or additional facts indicate the child does not reside in the receiving county. (In re J. C., supra, 104 Cal.App.4th 984, 991.)
*685 Technically, the San Bernardino County Juvenile Court's order recited that it did "accept" the transfer from Los Angeles, but the order of acceptance recited that the court did so "for sole purpose of return of jurisdiction to Los Angeles [County]." The San Bernardino County Juvenile Court then purported to conduct immediate transfer-out proceedings without following the proper procedures for doing so.
(3) If the receiving court disagrees with the findings underlying the transfer order, its remedy is to accept the transfer and either to appeal the transfer order, or to order a transfer-out hearing. (In re Carlos B. (1999) 76 Cal.App.4th 50, 55 [90 Cal.Rptr.2d 72].) The transfer-out hearing must be separate from the transfer-in hearing, because the court is charged with the duty to determine the residency of the child and whether the transfer is in the child's best interest. (Cal. Rules of Court, rules 5.610(e), 5.612(f); In re J. C., supra, 104 Cal.App.4th 984, 991.) The San Bernardino County Juvenile Court did not hold a separate hearing, and failed to consider at all whether the best interests of the child would be served by the retransfer.
The San Bernardino County Juvenile Court's de facto rejection of the transfer was plainly erroneous.
III. The San Bernardino County Juvenile Court Abused Its Discretion in Transferring the Case to Los Angeles County
Even if the procedural irregularities are overlooked (i.e., refusal to accept the case, or technical "acceptance" and immediate transfer-out proceedings), the San Bernardino County Juvenile Court abused its discretion in entering a transfer-out order, returning the case to Los Angeles County. This is because the court failed to take account of the overarching principle of the best interests of the child.
Under the abuse of discretion standard of review, we must uphold the San Bernardino County Juvenile Court's exercise of discretion "unless it `exceed[s] the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citation.]" (In re J. C., supra, 104 Cal.App.4th 984, 993.)
Arguably, the San Bernardino County Juvenile Court had some reason to think that the child's residence was statutorily determined to be in Los Angeles County under section 17.1. That section provides: "Unless otherwise provided under the provisions of this code, to the extent not in conflict with federal law, the residence of a minor person shall be determined by the following rules:
*686 "(a) The residence of the parent with whom a child maintains his or her place of abode or the residence of any individual who has been appointed legal guardian or the individual who has been given the care or custody by a court of competent jurisdiction, determines the residence of the child.
"(b) Wherever in this section it is provided that the residence of a child is determined by the residence of the person who has custody, `custody' means the legal right to custody of the child unless that right is held jointly by two or more persons, in which case `custody' means the physical custody of the child by one of the persons sharing the right to custody.
"(c) The residence of a foundling shall be deemed to be that of the county in which the child is found.
"(d) If the residence of the child is not determined under (a), (b), (c) or (e) hereof, the county in which the child is living shall be deemed the county of residence, if and when the child has had a physical presence in the county for one year.
"(e) If the child has been declared permanently free from the custody and control of his or her parents, his or her residence is the county in which the court issuing the order is situated."
The San Bernardino County Juvenile Court relied exclusively on section 17.1, subdivision (e); because the child had been freed from parental custody in Los Angeles County, Los Angeles County must be deemed the child's residence.
(4) The proper interpretation of section 17.1 is, as previously noted, a question of law we review de novo. We must construe statutory provisions with regard to effectuating the legislative purpose (People v. Walker (2002) 29 Cal.4th 577, 581 [128 Cal.Rptr.2d 75, 59 P.3d 150]); we also must, where possible, harmonize statutes, reconcile inconsistencies in them, and construe them so as to give effect to all their parts and to the statutory scheme as a whole (In re Sarah F. (1987) 191 Cal.App.3d 398, 408-409 [236 Cal.Rptr. 480]).
The San Bernardino County Juvenile Court focused exclusively on subdivision (e) of section 17.1, and disregarded both the purpose of the provision, and its place alongside, not only other subdivisions within the same statute, but also within the juvenile dependency scheme as a whole.
(5) Section 17.1 provides alternate means of determining a child's residence. Section 17.1, subdivision (a), provides that the residence of a person *687 who has been given custody and control of a child determines the child's residence. Here, the child's legal guardian is the aunt; she resides in San Bernardino County. The aunt is also the person given care or custody of the child by a court of competent jurisdiction. Under section 17.1, subdivision (a), therefore, the child's residence should be determined to be San Bernardino County.
(6) It is true that section 17.1, subdivision (e), provides that "[i]f the child has been declared permanently free from the custody and control of his or her parents, his or her residence is the county in which the court issuing the order is situated," but that provision must be construed together with the other provisions of the same section, as well as with the other provisions of the whole statutory scheme.
(7) The legislative purpose of section 17.1, subdivision (e), may be inferred from section 366.26, subdivision (j), which provides that, upon freeing a child, the custody of the child is transferred to the exclusive care of the State Department of Social Services or to a licensed adoption agency, until an adoption is completed. In this case, adoption proved difficult. After many placement attempts, the child was placed in a legal guardianship with his aunt. The fail-safe provision of section 17.1, subdivision (e), that a child freed from parental custody and control must have some county of residence while adoption proceedings are pending, is not necessary or applicable where a legal guardianship has been achieved. Subdivision (a) of section 17.1 provides that the child's residence is that of the legal guardian. Likewise, California Rules of Court, rule 5.610, governing transfer-out proceedings, provides that the child's residence is with the person entitled to legal custody. Here, that is the aunt who was granted legal guardianship. Under either of these provisions, the child's residence is properly determined to be San Bernardino County.
Even if section 17.1, subdivision (e), applies and the child's residence is legally in Los Angeles County, the San Bernardino County Juvenile Court acted improperly, because it wholly disregarded, and made no finding concerning, the overarching principle of the best interests of the child. At a transfer-out hearing, the transferring court is required to make findings not only as to the child's residence, but also whether the transfer is in the child's best interests.
Here, both the legal guardian and the child actually lived in San Bernardino County. The placement required ongoing supervision. As in In re J. C., "the focus of the proceedings should have been which county could best monitor the [child's] well-being and the suitability of [his] placement on a monthly basis, as well as keep tabs on [his] academic progress and other *688 needs." (In re J. C., supra, 104 Cal.App.4th 984, 994.) The child is now 14 years old, "so it is reasonable to anticipate that [he] will encounter difficulties and may seek assistance from [his] social worker or legal counsel. The [child] would be hampered in seeking these services if they are reachable only by a long-distance telephone call or a two-hour drive to or from Los Angeles County." (Ibid.) The only reasonable conclusion is that the child's best interests are served by having the case supervised in San Bernardino County.
DISPOSITION
The Superior Court of San Bernardino County is ordered to accept the transfer of this case from Los Angeles County.
Hollenhorst, Acting P. J., and Richli, J., concurred.
NOTES
[1] All further statutory references are to the Welfare and Institutions Code.
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258 F.3d 1379 (Fed. Cir. 2001)
IN RE MARY E. ZURKO, THOMAS A. CASEY, JR., MORRIE GASSER, JUDITH S. HALL, CLIFFORD E. KAHN, ANDREW H. MASON, PAUL D. SAWYER, LESLIE R. KENDALL, AND STEVEN B. LIPNER.
No. 96-1258, 07/479,666
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
August 2, 2001
On remand from the Supreme Court of the United States (Serial No. 07/479,666)Linda Moncys Isacson, Associate Solicitor, Office of the Solicitor, U.S. Patent and Trademark Office, of Arlington, Virginia, argued for the Commissioner of Patents and Trademarks. With her on the brief were John M. Whealan, Solicitor, Kenneth R. Corsello and Thomas J. Finn, Associate Solicitors.
John F. Sweeney, Morgan & Finnegan, L.L.P., of New York, NY, argued for Mary E. Zurko, et al. With him on the brief were Irene Kosturakis and Russell T. Wong, Compaq Computer Corporation, of Houston, TX. Of counsel on the brief were Michael O. Cummings and Jon T. Hohenthaner, Morgan & Finnegan, L.L.P., of New York, NY; and Ernest Gellhorn, of Washington, DC. Also of counsel were Janice M. Mueller, Assistant Law Professor, Suffolk University Law School, of Boston, Massachusetts; Israel Blum, Steven F. Meyer and Brenda Pomerance, Morgan & Finnegan, L.L.P., of New York, NY; and Ronald C. Hudgens, Corporate Law Department, Digital Equipment Corporation, of Maynard, MA.
Bruce M. Wexler, Fitzpatrick, Cella, Harper & Scinto, of New York, NY, for amicus curiae New York Intellectual Property Law Association. With him on the brief was Herbert F. Schwartz, Fish & Neave, of New York, NY.
Charles F. Schill, Foley & Lardner, of Washington, DC, for amicus curiae Federal Circuit Bar Association. With him on the brief were James A. Sprowl and Amy L. Wilsey. Of counsel on the brief were Michael E. Dergosits, President, George E. Hutchinson, Executive Director, and Rudolph P. Hofmann, Jr., Chair, Amicus Committee, Federal Circuit Bar Association, of Washington, DC.
Before Newman, Circuit Judge, Archer, Senior Circuit Judge, and Michel, Circuit Judge.
Archer, Senior Circuit Judge
1
This case is before us on remand from the Supreme Court of the United States. Dickinson v. Zurko, 527 U.S. 150, 50 USPQ2d 1930 (1999) ("Zurko III"). In Zurko III, the Court reversed our judgment and remanded the case because we had reviewed the factual findings of the Board of Patent Appeals and Interferences ("Board") for clear error, an incorrect standard of review.
2
The Board decision at issue, Ex parte Zurko, No. 94-3967 (Bd. Pat. Apps. & Int. Aug. 4, 1995), sustained the rejection of U.S. Patent Application No. 07/479,666 ("the '666 application") under 35 U.S.C. §§ 103 (1994). In our initial review of this decision, we determined that the Board's findings were clearly erroneous and we reversed. In re Zurko, 111 F.3d 887, 42 USPQ2d 1476 (Fed. Cir. 1997) ("Zurko I"). At the Commissioner's suggestion, we then reheard this case en banc to reconsider the question of the appropriate standard of review. The Commissioner argued that Board findings should be reviewed under the standards of the Administrative Procedure Act (APA), namely the substantial evidence or arbitrary and capricious standard. 5 U.S.C. §§ 706 (1994). The en banc court held, however, that clear error was the correct standard of review for Board findings of fact and adopted the conclusions of the original panel decision. In re Zurko, 142 F.3d 1447, 46 USPQ2d 1691 (Fed. Cir. 1998) ("Zurko II").
3
The Commissioner then petitioned for review by the Supreme Court, and the Court reversed, holding that Board findings of fact must be reviewed under the APA standards of review. The Court did not specify which APA standard of review to apply, substantial evidence or arbitrary and capricious. We subsequently decided this question in In re Gartside, 203 F.3d 1305, 53 USPQ2d 1769 (Fed. Cir. 2000), and held that substantial evidence is the correct APA standard of review for Board factual findings.
4
We now revisit the merits of our decision in Zurko I, applying the proper APA standard of review. In doing so, we conclude that the outcome of this case does not change with the application of this new standard of review. Because the factual findings underlying the Board's decision are not supported by substantial evidence, we reverse.
BACKGROUND
5
The '666 application concerns a method for more efficiently creating a secure computer environment. Secure, or "trusted," computer environments employ trusted software designed to preclude unauthorized users and to prevent unintended or unauthorized commands. Such trusted software is often quite costly, compared to untrusted software, so it is desirable to minimize the amount of trusted software in the system. Applicants claim a method for processing trusted commands with a minimum of trusted software.
Representative claim one reads as follows:
6
1. A machine-executed method for executing a trusted command issued by a user on a computer system, the computer system including an untrusted computing environment and a trusted computing environment, said method comprising the steps of:
7
(a) parsing the trusted command in the untrusted computing environment to generate a parsed command;
8
(b) submitting the parsed command to the trusted computing environment;
9
(c) displaying a representation of the trusted command to the user through a trusted path;
10
(d) receiving a signal from the user through a trusted path signifying whether the displayed representation accurately represents the user's intentions;
11
(e) if the signal signifies that the displayed representation does not accurately represent the user's intentions, then preventing the execution of the parsed command;
12
(f) if the signal signifies that the displayed representation accurately represents the users intentions, executing the parsed command in the trusted environment.
13
As set forth in claim one, applicants' method involves processing and verifying a trusted command using both trusted and untrusted software. A trusted command is first processed by untrusted software to create a parsed command. The parsed command is then submitted to the trusted computer environment. Execution of this command requires verification along a trusted path. The parsed command is relayed to the user along a trusted path, and, if correct, the user can send a confirming signal back along this trusted path, allowing execution of the command. By processing a trusted command in this manner, the applicants contend they reduce the amount of trusted software. The applicants assert that the parsing step generally requires a large amount of software and that performing this step with untrusted software greatly reduces the amount of trusted code required to process a trusted command.
14
The Board sustained the Examiner's rejection of claims 1, 4, and 5 of the '666 application under 35 U.S.C. §§ 103 based on two prior art references. The primary reference is the UNIX operating system, as described in the applicants' information disclosure statement ("IDS"). According to this description, the UNIX system employs both untrusted and trusted code. Furthermore, certain commands in a UNIX system may be parsed in an untrusted environment, and then these parsed commands may be executed by "calling a trusted service that executes in a trusted computing environment."
15
The secondary reference, also described in applicants' IDS, is Dunford, FILER Version 2.20 ("FILER2"). This program repeats back potentially dangerous commands, requesting confirmation from the user before execution.
16
Considering the teachings of these two references, the Board concluded that the invention claimed by the '666 application would have been obvious. The Board commented that "the artisan would have been led from these teachings to take the trusted command parsed in an untrusted environment and submitted to the trusted computing environment, as taught by UNIX, and to display the parsed command to the user for confirmation prior to execution, as suggested by [FILER2]." Ex parte Zurko, slip op. at 6-7. According to the Board, this combination would render the claimed invention obvious.
17
The Board also responded to applicants' arguments that neither reference discloses a trusted path communication to the user and that no teaching of the prior art references motivates the combination of these references to create the claimed invention. The Board said that communication along a trusted path, if not explicit in the prior art, is either inherent or implicit. Id. at 7. The Board further adopted the Examiner's assertion that "it is basic knowledge that communication in trusted environments is performed over trusted paths." Id. at 8. As for the motivation to combine these references, the Board concluded that it "would have been nothing more than good common sense" to combine the teachings of these references. Id. The Board noted that FILER2 taught the verification of dangerous commands in general, suggesting verification of the parsed command submitted to the trusted computing environment in UNIX. Because this verification occurs within a trusted environment, it is "basic knowledge," according to the Board, that this verification would occur along a trusted path. Id. at 7-8.
18
Reviewing the Board's decision in Zurko I, we held that "the Board's finding that the prior art teaches, either explicitly or inherently, the step of obtaining confirmation over a trusted pathway [was] clearly erroneous." Zurko I, 111 F.3d at 889, 42 USPQ2d at 1478. Indeed, we noted that neither reference relied upon by the Board taught communication with the user over a trusted pathway. Id., 42 USPQ2d at 1479. We further held that the Board clearly erred in finding that the prior art teaches communicating with the user over both a trusted and an untrusted path. This finding was in conflict with the Board's other finding that trusted communications must be over trusted paths. Id. at 890, 42 USPQ2d at 1479.
19
On remand, applicants urge that we maintain our reversal of the Board's decision, arguing that the decision is legally flawed, or, alternatively, that the Board's factual findings fail under the APA standard of review. The Commissioner reponds that we must affirm the Board decision because its findings are supported by substantial evidence in the record.
DISCUSSION
20
A claimed invention is unpatentable for obviousness if the differences between it and the prior art "are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art." 35 U.S.C. §§ 103(a) (1994); Graham v. John Deere Co., 383 U.S. 1, 14, 148 USPQ 459, 465 (1966). Obviousness is a legal question based on underlying factual determinations including: (1) the scope and content of the prior art, including what that prior art teaches explicitly and inherently; (2) the level of ordinary skill in the prior art; (3) the differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness. Graham, 383 U.S. at 17-18, 148 USPQ at 467; In re Dembiczak, 175 F.3d 994, 998, 50 USPQ 1614, 1616 (Fed. Cir. 1999); In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (stating that the inherent teachings of a prior art reference is a question of fact). We review the ultimate legal determination of obviousness without deference. In re Dembiczak, 175 F.3d at 998, 50 USPQ at 1616. We review factual findings underlying this determination for substantial evidence. In re Gartside, 203 F.3d at 1311-16, 53 USPQ2d at 1772-75.
21
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also Zurko III, 527 U.S. at 162, 50 USPQ2d at 1772-75. A review under this standard "involves an examination of the record as a whole, taking into consideration evidence that both justifies and detracts from the agency's decision." In re Gartside, 203 F.3d at 1312, 53 USPQ2d at 1773 (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951)). In addition, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 619-20 (1966).
22
The substantial evidence standard has been analogized to the review of jury findings, and it is generally considered to be more deferential than the clearly erroneous standard of review. Zurko III, 527 U.S. at 162-63, 50 USPQ2d at 1936. The Supreme Court noted in Zurko III, however, that this generally recognized difference is "a subtle one," so fine that in its review of case law in the Zurko III decision, the Court could not find any other case where a reviewing court had conceded that the standard of review made a difference. Id. Moreover, while appellate courts must respect agency expertise, the Court has "stressed the importance of not simply rubber-stamping agency fact finding." Id. (citing Universal Camera, 340 U.S. at 477-78). Indeed, the Court observed that Federal Circuit judges "will examine [Board fact] findings through the lens of patent-related experience -- and properly so, for the Federal Circuit is a specialized Court." Id. The Court further noted that this "comparative expertise, by enabling the Circuit better to understand the basis for the [Board's] finding of fact, may play a more important role in assuring proper review than would a theoretically somewhat stricter standard." Id.
23
With this guidance from the Supreme Court in mind, we now reconsider the Board's decision. Applicants urge that we reaffirm our conclusion in Zurko I, alleging numerous legal and factual errors in the Board decision. These arguments center around two issues. First, applicants argue that the prior art relied upon by the Board does not disclose one of the limitations of their claimed invention, namely communication between a trusted environment and the user along a trusted path. Second, applicants claim that there is no substantial evidence support for the Board's finding of motivation to combine the cited references to yield the claimed invention. We only need to consider the first issue raised by applicants.
24
As to this first issue, the Commissioner apparently concedes that neither the UNIX IDS disclosure nor FILER2 teaches communications between the user and the trusted environment along a trusted path. Nevertheless, the Commissioner maintains that the Board's findings concerning the content of the prior art are supported by four other references in the record.1 The Commissioner argues that these additional references describe modified UNIX systems that allow communication over both trusted and untrusted paths. Therefore, the Commissioner argues, the Board's general findings concerning the content of the prior art have substantial evidence support, as does its ultimate conclusion of obviousness.
25
We are unpersuaded by the Commissioner's arguments. The Board's conclusion of obviousness was based on the UNIX and FILER2 references. The Board's findings with respect to these references simply cannot be supported by the alternative references identified by the Commissioner on remand. To the contrary, these alternative references merely confirm the well-known fact that conventional UNIX systems do not allow communication between the user and the trusted environment along a trusted path. For example, Johrie et al., U.S. Pat. No. 4,918,653, comments that "[s]ome examples of prior art multi-user operating systems which have not provided an effective mechanism for establishing a trusted path include UNIX . . . . " Johrie, col. 1, ll. 60-63.
26
The Commissioner also cannot now mend the Board's faulty conclusion of obviousness by substituting these alternative references for those relied upon by the Board. This new combination of references would constitute a new ground for rejection, not considered or relied upon by the Examiner or the Board. It is well settled that it would be inappropriate for us to consider such a new ground of rejection. In re Margolis, 785 F.2d 1029, 1032; 228 USPQ 940, 942 (Fed. Cir. 1986); see also Koyo Seiko Co., Ltd. v. United States, 95 F.3d 1094, 1099 (Fed. Cir. 1996) (holding that "[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.") (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).
27
Finally, the deficiencies of the cited references cannot be remedied by the Board's general conclusions about what is "basic knowledge" or "common sense" to one of ordinary skill in the art. As described above, the Board contended that even if the cited UNIX and FILER2 references did not disclose a trusted path, "it is basic knowledge that communication in trusted environments is performed over trusted paths" and, moreover, verifying the trusted command in UNIX over a trusted path is "nothing more than good common sense." Ex parte Zurko, slip op. at 8. We cannot accept these findings by the Board. This assessment of basic knowledge and common sense was not based on any evidence in the record and, therefore, lacks substantial evidence support. As an administrative tribunal, the Board clearly has expertise in the subject matter over which it exercises jurisdiction. This expertise may provide sufficient support for conclusions as to peripheral issues. With respect to core factual findings in a determination of patentability, however, the Board cannot simply reach conclusions based on its own understanding or experience -- or on its assessment of what would be basic knowledge or common sense. Rather, the Board must point to some concrete evidence in the record in support of these findings.2 To hold otherwise would render the process of appellate review for substantial evidence on the record a meaningless exercise. Baltimore & Ohio R.R. Co. v. Aderdeen & Rockfish R.R. Co., 393 U.S. 87, 91-92 (1968) (rejecting a determination of the Interstate Commerce Commission with no support in the record, noting that if the Court were to conclude otherwise "[t]he requirement for administrative decisions based on substantial evidence and reasoned findings -- which alone make effective judicial review possible -- would become lost in the haze of so-called expertise"). Accordingly, we cannot accept the Board's unsupported assessment of the prior art.
CONCLUSION
28
The Board's conclusion of obviousness was based on a misreading of the references relied upon and, therefore, lacks substantial evidence support. Accordingly, the Board's judgment is reversed.
29
REVERSED.
Notes:
1
Specifically, the Commissioner points to Johrie et al, U.S. Pat. No. 4,918,653; E.J. McCauley et al., KSOS: The Design of a Secure Operating System, Ford Aerospace and Communications Corp. (1979); Stanley R. Ames, Jr. et al., Security Kernal Design and Implementation: An Introduction, IEEE Cat. No. 830700- 001 (July 1983); and Simon Wiseman et al., The Trusted Path Between Smite and the User, Proceedings 1988 IEEE Symposium on Security and Privacy (April 18- 21, 1988).
2
As described above, we cannot accept the Commissioner's invitation to now search the record for references in support of the Board's general conclusions concerning the prior art. Even if any such references could support these conclusions, it would be inappropriate for us to consider references not relied upon by the Board. In re Margolis, 785 F.2d at 1032; 228 USPQ at 942.
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909 F.2d 1474
U.S.v.Smith
NO. 89-1541
United States Court of Appeals,Second Circuit.
JUN 29, 1990
1
Appeal From: E.D.N.Y.
2
AFFIRMED.
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NUMBER 13-99-114-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
SOUTHWEST KEY PROGRAM, INC., D/B/A
TEXAS SKY PROGRAM, INC., AND
LA ESPERANZA HOME FOR BOYS, Appellant,
v.
CARLO GIL-PEREZ, Appellee.
___________________________________________________________________
On appeal from the 197th District Court
of Cameron County, Texas.
____________________________________________________________________
O P I N I O N
Before Justices Hinojosa, Chavez, and Rodriguez
Opinion by Justice Rodriguez
Appellee, Carlos Gil-Perez, filed suit alleging appellants, Southwest
Key Program, Inc. d/b/a Texas Key Program, Inc., (Southwest Key) and
La Esperanza Home for Boys (the Home),(1) were negligent and
proximately caused his injuries and damages. The case was tried to a
jury that found Southwest Key one hundred percent negligent and
awarded $75,000 in damages, plus interest and costs. The court
entered a final judgment against Southwest Key and the Home.(2) By
three issues, appellants complain (1) the trial court erred in submitting
appellee's case to the jury as ordinary negligence; (2) alternately, the
evidence was factually and legally insufficient to support a negligence
finding; and, (3) the trial court erred in refusing to credit the judgment
against appellants in an amount equal to the medical expenses paid by
appellants. We affirm.
In June 1994, appellants accepted placement of appellee at the
Home through an agreement with the Texas Youth Commission (TYC).
In September, Antonio Gracia, an employee of Southwest Key, took
several resident boys, including appellee, to a local stadium to exercise
and participate in recreational activities. Appellants encouraged their
residents to participate in these activities by giving them extra points
which were accumulated for privileges. It is undisputed that Gracia
was responsible for supervising the residents of the Home on this trip,
and that he was acting within the course and scope of his employment
when the incident occurred. While at the stadium, appellee and the
other residents joined non-residents in an informal, impromptu game of
tackle football and appellee suffered a dislocated knee.
By their first issue, appellants contend that the trial court erred in
submitting appellee's case to the jury as one of ordinary negligence.(3)
Appellants argue that this is a sports injury case involving a participant
and a non-participant, and urge this Court to adopt the heightened
standard for recovery applicable in cases involving a participant versus
a non-participant. Appellee, however, contends this is not a sports
injury case, but rather a case of negligent supervision of a minor under
appellants' care and control. As such, appellee urges that the standard
is one of ordinary negligence.
A participant in athletic competition owes a legal duty not to injure
another participant by conduct that either intentionally or recklessly
disregards the safety of the other participant. See Greer v. Davis, 921
S.W.2d 325, 327-28 (Tex. App.--Corpus Christi 1996, writ denied)(to
prevail in cause of action for injuries sustained while participating in
competitive contact sport, plaintiff must prove defendant participant
acted recklessly or intentionally). The conduct of nonparticipants, such
as sponsors and others whose duties extend to instruction,
maintenance of equipment and facilities, and other considerations is
judged by concepts of ordinary negligence. See Moore v. Phi Delta
Theta, 976 S.W.2d 738, 741-42 (Tex. App.--Houston [1st Dist.] 1998,
pet. denied) (competitive contact sports doctrine and heightened
standard does not apply to non-participating sponsor of paint ball "war
game"); Connell v. Payne, 814 S.W.2d 486, 488 (Tex. App.--Dallas
1991, writ denied) (where standard of intentionally or recklessly causing
injury is applied to participant defendant, ordinary negligence is applied
to non-participant polo club).
In the present case, the evidence reflects this was a recreational,
impromptu football game between children who were residents of the
Home and non-residents. Although the game occurred at an area away
from the Home, the residents were under the care and supervision of an
employee of the Home. Nonetheless, appellants, through their
employees or agents, did not participate in the game. Further, in our
opinion, the action of Gracia in allowing the children to play tackle
football during their recreation time did not, as a matter of law,
constitute appellants' "sponsorship" of the game. Therefore, because
appellants neither participated nor sponsored the football game, we
conclude this is not a sports injury case. Thus, the issue of whether a
heightened standard of recovery requiring reckless or intentional
conduct should be applied is not before us. Appellants' first issue is
overruled.
By their second issue, appellants contend that, if the ordinary
negligence standard is held to be the appropriate standard, the jury's
finding of negligence is not supported by legally or factually sufficient
evidence. Appellants contend there is no evidence that a duty existed,
that appellants breached any duty, or that appellants proximately
caused appellee's injury. Appellants also contend that the jury's failure
to place any responsibility on appellee is against the great weight and
preponderance of the evidence.
To sustain a cause of action for negligence, one must show the
existence of some duty owed by one party to another, a breach of that
duty, and damages that were proximately caused by the breach of the
duty. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998);
Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998); El Chico Corp.
v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).
Appellee contends appellants had a duty to protect him from
physical harm, and are liable to him based on the following theories of
recovery: (1) negligence in failing to provide adequate instruction; (2)
negligence in failing to provide adequate supervision; and (3) negligence
in failing to provide adequate organization of the game, including the
provision of equipment.(4)
Duty, a question of law, is the threshold inquiry in a negligence
case. See Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993); Wal-Mart
Stores, Inc. v. Tamez, 960 S.W.2d 125, 127 (Tex. App.--Corpus Christi
1997, pet. denied). It is the obligation to conform to a particular
standard of conduct. See Valley Shamrock, Inc. v. Vasquez, 995 S.W.2d
302, 306 (Tex. App.--Corpus Christi 1999, no pet.); Castillo v. Sears,
Roebuck & Co., 663 S.W.2d 60, 64 (Tex. App.--San Antonio 1983, writ
ref'd n.r.e.). "The duty of reasonable care required under a given set of
facts may be based on common law principles, or the appropriate
standard of conduct may be determined by statute." See Wal-Mart
Stores, 960 S.W.2d at 128 (citations omitted). The court decides
whether a duty exists from the facts surrounding the occurrence in
question. See id. at 127-28 (citations omitted).
It is undisputed that appellee was a resident of the Home through
appellants' agreement with the TYC. Appellants are required to comply
with a variety of TYC regulations designed to ensure the safety of
children under their supervision. One such requirement is that each
youth in the TYC system is to be accorded certain basic rights, including
the right to be protected from physical harm. See 37 Tex. Admin. Code
§ 93.1(a), (b) & (j). The TYC General Operating Policy Manual, No.
GOP.61.01, effective March 25, 1994, at page four, provides:
Discussion [of right to protection from physical harm]: Every
TYC staff member has an affirmative obligation to take every
reasonable precaution to protect youth from harm. This
obligation may take many forms, from ensuring adequate
coverage in the dorm to providing a qualified lifeguard at
pool side. Some youth will suffer injury; that is an inevitable
part of growing up. The agency's obligation is to ensure
that it does nothing which contributes to or causes such
injury.
Thus, the administrative code imposes an affirmative duty on appellants
to protect its residents, including appellee, from physical harm. The
TYC General Operating Policy Manual provides that every member of
the TYC staff has an affirmative obligation to ensure it does nothing
which contributes to or causes such injury, and that the agency has the
obligation to ensure that it does nothing which contributes to or causes
such injury.
At trial, Gracia acknowledged he was required to comply with the
TYC policies, and appellants stipulated they must comply with TYC
policies and procedures, including the affirmative obligation to take
every reasonable precaution to protect youth from harm. Appellee
argues that this acknowledged duty is one of ordinary care and, as
such, appellants have a common law duty to protect their residents
from physical harm following the above referenced guidelines.
Common law negligence rests primarily upon the existence of
reason to anticipate injury and the failure to perform the duty arising on
account of that anticipation. See Wal-Mart Stores, 960 S.W.2d at 130
(citations omitted). Therefore, when determining whether a common
law duty exists, the foremost and dominant consideration is
foreseeability and likelihood of the risk. See id. (citations omitted).
Factors weighing against imposition of a duty are the magnitude of the
burden of guarding against the injury, and the consequences of placing
that burden upon the defendant. Id.
A standard of care on the part of appellants already exists toward
their residents who might be injured by unreasonable conduct in
supervising, organizing or instructing recreational activities. This
standard, as expressed above, is set out in the Texas Administrative
Code and discussed in the TYC manual. We see no reason why this
standard of care should not be considered one of ordinary care under
the facts of this case. Accordingly, we conclude that appellants have
a legally cognizable duty: a duty to protect their residents from physical
harm following the above referenced guidelines.
Having found a duty exists, we next address appellants' complaint
that there is no evidence that appellants breached any duty. When
reviewing a no evidence point of error, we must consider only the
evidence and reasonable inferences tending to support the jury findings.
See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 275-76 (Tex.
1995); Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.
1993). If there is any evidence of probative force to support the finding,
we must overrule the point of error and uphold the jury's finding. See
Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.
1989); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1984). If more
than a scintilla of evidence supports the jury's finding, a no evidence
challenge fails. See Stafford, 726 S.W.2d at 16.
In support of the no evidence contention regarding breach of duty,
appellants cite authorities that stand for the proposition that the mere
occurrence of an accident is not evidence of negligence.(5) This
proposition of law is well-founded and is even acknowledged in TYC's
guidelines.(6) Nonetheless, this proposition is not determinative under
the facts of this case.
Appellants further argue that any person reasonably familiar with
athletics knows that any athlete may become injured despite all best
efforts put forth by others involved in the activity. Appellants contend
there is no evidence from which a jury could reasonably find that the
decision to allow the game to occur, while leaving appellee with the
choice of whether to play, is negligence. Appellants also argue they
cannot ensure that each resident will not suffer some accidental injury
as a result of athletic participation, and that appellee was also aware
that athletic activities entail some foreseeable risk. However, this is an
argument more appropriately made in a sports injury case. See Moore,
976 S.W.2d at 741-42; Greer, 921 S.W.2d at 328-29. Having
concluded this is not a sports injury case, appellants' argument is not,
therefore, persuasive. Furthermore, although appellants may not be
insurers of their residents' safety during recreational activities,
appellants do have a duty to take every reasonable precaution to protect
its youth from harm.
The record in this case reveals that appellee was under the control
and direct supervision of appellants through their supervisor, Gracia.
Gracia was responsible for seeing after the residents' safety while they
were at the park and made the decision that the residents could play
tackle football. Appellee testified that Gracia told the residents he
needed to watch each and every one of them, and that several residents
wanted to play, so he said, "Come on. I can't watch you over there. I
can't be watching you and, you know, you've got to come and play."
Gracia testified that someone suggested, "Hey, let's play football," and
Gracia said, "Sure. Whatever. Why not?" Appellee testified he
had never been trained to play organized football and had never played
tackle football. Gracia believed appellee had experience playing football
because somebody may have told him so, but Gracia had not actually
seen appellee play. Gracia testified he had not given appellee any
instruction in playing football, and, as far as he knew, none of the
residents had received any instructions from the Home about playing
football. Gracia had not seen the residents exercising to strengthen
neck or leg muscles. Additionally, it is undisputed that the residents of
the Home were encouraged to participate in recreational and exercise
activities, and, in fact, received points for participating in such activities.
The points led to privileges. Appellee testified that, although he did not
know if he would have received fewer points for not participating in the
football game, he could have received fewer.
These are all factors from which a jury could infer that appellants
failed to exercise due care in protecting appellee from physical harm; in
taking every reasonable precaution to protect appellee from physical
harm.
Considering the evidence and reasonable inferences tending to
support the jury's findings, we conclude there is more than a scintilla
of evidence to support the finding of negligence as to appellants duty
to protect appellee from physical harm. Thus, appellants' no evidence
argument regarding breach of duty fails.
Appellants also argue in their second issue that if they were
negligent, appellee was also negligent for participating in the game.(7)
When a party with the burden of proof, as with comparative negligence
in this case, complains on appeal from an adverse jury finding, the
appropriate issue is "whether the matter was established as a matter of
law" or "whether the jury's finding was against the great weight and
preponderance of the evidence." See Croucher v. Croucher, 660 S.W.2d
55, 58 (Tex.1983); La Grange v. Nueces County, 989 S.W.2d 96, 99
(Tex. App.--Corpus Christi 1999, pet. denied). In this case, appellants
contend the jury's failure to place any responsibility on appellee is
against the great weight and preponderance of the evidence.
In reviewing such a challenge, we must first examine the record
to determine if there is some evidence to support the finding; if such is
the case, then we must determine, in light of the entire record, whether
the finding is so contrary to the overwhelming weight and
preponderance of the evidence as to be clearly wrong and manifestly
unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In
reviewing great weight issues which complain of a jury's failure to find,
the supreme court has admonished the courts of appeals to be mindful
of the fact that the jury was not convinced by a preponderance of the
evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).
In such cases, a court of appeals may not reverse simply "because [it]
concludes that the evidence preponderates toward an affirmative
answer." Id. We may only reverse where "the great weight of the
evidence supports an affirmative answer." Id.
Having examined the record as set out above and being mindful
of the fact that the jury was not convinced by a preponderance of the
evidence that appellee's actions contributed to his injury, we conclude
that there is some evidence to support the jury finding. Further, in light
of the entire record, we conclude that the great preponderance of the
evidence does not support an affirmative answer.
Finally in issue two, appellants complain there is no evidence that
their failure to provide protective equipment constituted negligence
which proximately caused appellee's injury. Proximate cause consists
of two elements: cause-in-fact and foreseeability. See Doe v. Boys
Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476 (Tex. 1995).
Appellants complain only that there is no evidence to support the first
element. "Cause-in-fact" means that a negligent act or omission is a
substantial factor in bringing about the injury and without which no
harm would have been incurred. See Union Pump Co. v. Allbritton, 898
S.W.2d 773, 775 (Tex. 1995). Further, lay testimony is adequate to
prove causation if general experience and common sense will enable a
lay person to determine the causal relationship between the event and
the condition with reasonably probability. See Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984). Generally, lay
testimony establishing a sequence of events which provides a strong,
logically traceable connection between the event and the condition is
sufficient proof of causation. See id. In such cases, lay testimony can
provide both legally and factually sufficient evidence to prove the causal
relationship. See Blankenship v. Mirick, 984 S.W.2d 771, 775 (Tex.
App.--Waco 1999, pet. denied).
Appellants contend that appellee's sole liability theory is that
appellants were negligent in failing to provide appellee protective
equipment. However, appellee asserts, and this Court agrees, that he
also proceeded on other theories of liability, including negligence in
supervision, instruction and organization of other aspects of the football
game. Testimony was offered to show that there were reasonable
alternative activities available from which Gracia could have chosen,
such as soccer or touch football. There was also testimony that
showed appellee's lack of experience playing organized tackle football.
Further, it was emphasized that appellants encouraged their residents
to earn participation points through recreational activities. Appellee
was under appellants' care and supervision. As supervisor for
appellants, Gracia was to use reasonable care to protect the residents
from injury. Specifically, he was to ensure that he did nothing which
contributed to or caused injury. Gracia authorized the game of tackle
football and took responsibility for making that decision. Gracia decided
that the game would be played with the understanding that all tackling
would take place below the waist and full contact would be allowed.
Appellee testified that the injury occurred during the football game
when he was carrying the ball and was tackled by several players. One
of the players grabbed appellee by his legs. When appellee looked at
his leg, he knew something was wrong and started screaming for help.
Appellee testified he pushed at his leg to reposition it and it started
getting "real fat," and then began hurting "real bad."
We conclude that appellants' negligent act of supervising the
residents of the Home and organizing a tackle football game with full
contact below the waist was a substantial factor in bringing about
appellee's injury and without which no harm would have been incurred.
We hold that under these facts, expert testimony was not required to
prove that the tackle football game authorized by appellants caused
appellee's injuries. The jury could have reasonably inferred that a
prudent supervisor would have adequately supervised, organized and
instructed the residents regarding the game or would have chosen a
more reasonable activity, and that the lack of or inadequate supervision,
organization and/or instruction in the instant case was the proximate
cause of appellee's injury. Having reviewed the record, we conclude
that the evidence is legally sufficient to support the jury's finding as it
relates to proximate cause.
Accordingly, having considered and rejected each of appellants'
attacks on the evidence supporting the jury's findings, issue number
two is overruled.
Finally, by their third issue, appellants contend that even if there
is some evidence to support a negligence theory, appellants were
entitled to an offset for amounts it had previously paid for appellee's
medical care. However, our review of the record reveals no evidence to
support appellants' argument that they paid appellee's medical bills and
are entitled to an offset. Furthermore, parents possess a cause of action
to recover medical expenses incurred by their minor children. See Sax
v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). Because appellee's
medical bills arising from his knee injury accrued while he was a minor,
they were the legal responsibility of his mother, Christina Perez. A take-nothing judgment was entered against Perez; thus, she did not receive
an award for medical expenses in this case. Therefore, appellants are
not entitled to an offset of an amount that was never awarded.
Appellants' third issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed
this the 9th day of November, 2000.
1. Southwest Key Program, Inc., d/b/a Texas Key Program, Inc.,
owns and operates La Esperanza Home for Boys in Brownsville, Texas,
where Gil-Perez was a resident.
2. Christina Perez, appellee's natural mother and plaintiff below, is
not a party to this appeal. The jury found no past medical expenses,
and the court entered a take nothing judgment as to Christina Perez.
3. The court submitted the following liability question to the jury:
"Did the negligence, if any, of the persons named below proximately
cause the injury in question?" The jury answered "Yes" to
"SOUTHWEST KEY PROGRAM, INC. d/b/a/ TEXAS KEY PROGRAM, INC.,
its employees, agents or servants," and "No" to "CARLOS GIL[-]PEREZ."
4. We note that while appellants contend they had no duty to
provide equipment for the football game, they do not argue that they
had no duty to protect appellee, a resident of the Home, from physical
injury by providing him with adequate supervision, instruction, or
organization of other aspects of the football game.
5. See H.E.B. Grocery Co. v. Godawa, 763 S.W.2d 27, 30 (Tex. App.--Corpus Christi 1988, no writ) (slip and fall in grocery store). See also
Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex. 1985) (wheat crop
destroyed by fire when truck driven into dry wheat); Wells v. Texas Coal
& Oil Co., 164 S.W.2d 660, 662 (Tex. Comm'n App. 1942, opinion
adopted) (automobile accident); Molina v. Payless Foods, Inc., 615
S.W.2d 944, 947 (Tex. Civ. App.--Houston [1st Dist.] 1981, no writ)
(railing tipped over and injured child's hand); Southwestern Bell Tel. Co.
v. McKinney, 699 S.W.2d 629, 634 (Tex. App.--San Antonio 1985, writ
ref'd n.r.e.) (accident involving overhead telephone line); West v.
Slaughter, 384 S.W.2d 185, 188 (Tex. Civ. App.--Waco 1964, writ ref'd
n.r.e.) (plane destroyed by fire).
6. The TYC operating manual sets out that "[s]ome youth will suffer
injury; that is an inevitable part of growing up." However, the manual
adds that "[appellants'] obligation is to ensure that [they do] nothing
which contributes to or causes such injury."
7. In response to question number 1, the jury attributed no
negligence to appellee. It found Southwest Key, its employees, agents
or servants one hundred percent responsible.
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Filed 6/27/13 OneBeacon America Ins. v. Super. Ct. CA2/7
(Attached are modification order dated 6/19 and unmodified version of opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ONEBEACON AMERICA INSURANCE No. B244628
COMPANY,
(Super. Ct. No. BC327570)
Petitioner,
ORDER MODIFYING OPINION
v. [CHANGE IN JUDGMENT]
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
ROCKWELL AUTOMATION
CORPORATION, et al.,
Real Parties in Interest.
THE COURT:
IT IS ORDERED that the opinion filed herein on June 17, 2013 and modified on
June 19, 2013, be modified as follows:
On page 12, the disposition is modified to read:
“Let a peremptory writ of mandate issue directing the trial court to vacate its order
of September 14, 2012, granting the motion for summary adjudication, and to enter a new
and different order denying the motion. Petitioner shall recover its costs.”
[This modification changes the judgment.]
________________________________________________________________________
ZELON, Acting P. J., SEGAL, J.
Assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2
Filed 6/19/13
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ONEBEACON AMERICA INSURANCE No. B244628
COMPANY,
(Super. Ct. No. BC327570)
Petitioner,
ORDER MODIFYING OPINION
v. [CHANGE IN JUDGMENT]
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
ROCKWELL AUTOMATION
CORPORATION, et al.,
Real Parties in Interest.
THE COURT:
IT IS ORDERED that the opinion filed herein on June 17, 2013, be modified as
follows:
On page 12, the disposition is modified to read:
“Let a peremptory writ of mandate issue directing the trial court to vacate its order
of September 14, 2012, granting the motion for summary adjudication, and to enter a new
and different order denying the motion.”
[This modification changes the judgment.]
________________________________________________________________________
ZELON, Acting P. J., SEGAL, J.
Assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
4
Filed 6/17/13 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ONEBEACON AMERICA INSURANCE No. B244628
COMPANY,
(Super. Ct. No. BC327570)
Petitioner, (Elihu M. Berle, Judge)
v. WRIT OF MANDATE
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
ROCKWELL AUTOMATION
CORPORATION, et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING. Petition for writ of mandate. Elihu Berle, Judge.
Writ granted.
Selman Breitman, Jeffrey C. Segal and Ilya A. Kosten for Petitioner.
No appearance for Respondent.
Latham & Watkins, G. Andrew Lundberg, Karen R. Leviton, Alexandra A. Roje,
and Ashley N. Johndro for Real Parties in Interest.
_______________________
In this complex insurance litigation, OneBeacon America Insurance Company
petitions this court for a writ of mandate compelling the trial court to vacate its ruling
granting a motion for summary adjudication filed by Rockwell Automation, Inc., Meritor,
Inc., and Invensys, Inc. We issued an order to show cause why the trial court should not
be compelled to vacate its order and enter a new order denying the motion for summary
adjudication, and we now grant the petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner OneBeacon is a successor in interest to three insurance companies that
allegedly provided insurance coverage in the 1960s and 1970s to predecessor entities of
Rockwell International Company, known by the parties as “Old Rockwell.” OneBeacon
acknowledges that Old Rockwell would be entitled by operation of law to insurance
coverage under the policies issued by OneBeacon’s predecessors.
In 1988, Old Rockwell sold its measurement and flow control business to BTR
Dunlop pursuant to an asset sale agreement. That agreement was later supplemented by a
1995 agreement between Old Rockwell and BTR Dunlop concerning the allocation of
liabilities between the two entities. Through further business transactions, BTR Dunlop
became Invensys plc, the parent company of real party in interest Invensys, Inc.
In 1996, Old Rockwell conveyed its “non-aviation/non-defense” or “non-
aerospace and non-defense” businesses to Rockwell International Corporation, known as
“New Rockwell.” Old Rockwell then merged with a subsidiary of Boeing, and that
subsidiary subsequently merged with Boeing. New Rockwell underwent a series of name
changes and became Rockwell Automation, Inc., a real party in interest.
New Rockwell is alleged to have conveyed its automotive business to subsidiaries
of Meritor Automotive, Inc. in 1997 by distribution agreement. Meritor Automotive
merged with Arvin Industries, Inc. in 2000 to form ArvinMeritor, Inc., one of the real
parties in interest, which has since changed its name to Meritor, Inc.
2
Real parties in interest Rockwell Automation, Meritor, and Invensys (collectively,
the Rockwell parties”) seek insurance coverage under the policies that were issued by
OneBeacon’s predecessors to the predecessors of Old Rockwell. The Rockwell parties
are defendants and cross-complainants in the instant litigation. OneBeacon is a defendant
and cross-defendant.
The litigation has been proceeding in phases. The parties stipulated that the first
issue to be adjudicated by the trial court is the “Assignment Issue”: “Whether the several
transactions between 1988 and 1997, inclusive, involving assets of Rockwell
International Corporation, as among the parties to those transactions, assigned or
otherwise transferred any interests in or rights under any or all of the Policies to
defendants Rockwell Automation, Inc., ArvinMeritor, Inc., and/or Invensys, Inc. (the
‘Rockwell Parties’).”
On May 6, 2011, the Rockwell parties moved for summary adjudication of the
issue of duty: they sought a summary adjudication that based on the insurance policies
issued to the predecessors of the Rockwell parties, OneBeacon and the other insurers
owed the Rockwell parties the duties running from insurer to insured with respect to
asbestos claims that had been asserted against them.
After two hearings on the motion and supplemental briefing, the trial court granted
the motion for summary adjudication. OneBeacon subsequently filed the instant writ
petition seeking relief from the court’s ruling. We issued an order to show cause why the
trial court should not be compelled to vacate its ruling and issue a new and different order
denying the summary adjudication motion.
DISCUSSION
I. The Law of Summary Adjudication
“A party may move for summary adjudication as to one or more causes of action
within an action, one or more affirmative defenses, one or more claims for damages, or
3
one or more issues of duty, if that party contends that the cause of action has no merit or
that there is no affirmative defense thereto, or that there is no merit to an affirmative
defense as to any cause of action, or both, or that there is no merit to a claim for damages,
as specified in Section 3294 of the Civil Code, or that one or more defendants either
owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary
adjudication shall be granted only if it completely disposes of a cause of action, an
affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c,
subd. (f)(1).)
The party moving for summary adjudication bears the “initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact” with respect to the cause of action, affirmative defense, claim of damages,
or issue of duty that is the basis of the motion. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850 (Aguilar); see Code Civ. Proc., § 437c, subd. (p).) “A prima facie
showing is one that is sufficient to support the position of the party in question.”
(Aguilar, at p. 851.) If the moving party makes such a showing, the burden shifts to the
other party to show that a triable issue of one or more material facts exists as to the
litigated cause of action, defense, claim of damages, or issue of duty. (Id. at p. 849; Code
Civ. Proc., § 437c, subd. (p).) If the other party does not make this showing, summary
judgment in favor of the defendant is appropriate. If the other party makes such a
showing, summary judgment should be denied. On appeal, we review the trial court’s
ruling de novo. (Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214
Cal.App.4th 1534, 1548.)
II. Summary Adjudication Motion and Ruling
The Rockwell parties moved for a summary adjudication on the issue of duty:
they claimed that OneBeacon and the other insurers owed them the duties running from
insurer to insured under the insurance policies that had been issued to their predecessors
because the rights to the insurance coverage were assigned to them by the various
4
agreements conveying the business operations to them. The Rockwell parties articulated
a legal theory that, as a matter of law, the present-day concurrence of the contracting
parties as to the meaning of the agreements was conclusive on the issue of whether
assignments had occurred, and the insurers, including OneBeacon, had no legal right to
dispute the meaning ascribed to the agreements by the successors of the contracting
parties.
Pursuant to this theory, the Rockwell parties argued that only one fact was
material to the determination of whether they were assigned the insurance coverage at the
time they took over various business operations: do the parties to those transactions now
agree that the Rockwell parties were assigned insurance coverage? As evidence to
establish that no triable issue of material fact existed concerning the concurrence among
the Rockwell parties and Boeing as to their present-day construction of the contract, the
Rockwell parties submitted certifications by each real party in interest, a further
declaration from each certifying officer, and declarations from Boeing officials attesting
that each business now agrees that the contracts should be understood as assigning
insurance coverage as part of the transactions.
The trial court accepted the Rockwell parties’ argument that the present mutual
interpretation of the contract language is determinative, and concluded that OneBeacon
owes the Rockwell parties the duties running from insurer to insured under the insurance
policies that its predecessors had issued to the Rockwell parties’ predecessors. The court
noted that although the general rule is that contracts are construed in light of the
circumstances existing at the time of the making of the contract, that rule developed in
the context of parties disagreeing “as to the contractual intent of the initial parties to the
contract.” But here, the parties to the transaction agreements agreed on their
interpretation, and the court concluded that it should not override the mutual
understanding of the parties to the contracts absent circumstances in which equitable
concerns required a different result.
5
The court found that the Rockwell parties had submitted sufficient evidence to
demonstrate Boeing and the Rockwell parties’ present shared understanding that the
transaction agreements assigned them Boeing’s rights to coverage for the asbestos
liabilities at issue in the litigation, and that they had met their initial burden on summary
adjudication. The insurers’ showing in response, the trial court ruled, was insufficient to
demonstrate a triable issue of material fact “regarding Rockwell parties’ and Boeing’s
mutual current understanding to be that the Rockwell parties were assigned the specific
rights at issue in the present case.” Their evidence of statements made in another action
involved different policies, issued by different insurers, covering different businesses,
and those statements were not inconsistent with Boeing’s “current recognition that it
assigned specific rights of the policies at issue here to the Rockwell parties.” The
insurers’ evidence on the issue of what the court called “historical intent”—intent at the
time of the transaction agreements—was “immaterial,” because “the parties’ present
understanding must control.” Evidence of Boeing’s intent prior to entering the
transaction agreements was “immaterial as to what the contracting parties ultimately
decided was the meaning of the transaction agreements, and, therefore, the court
concludes that the evidence regarding Boeing’s prior musings is insufficient to raise [a]
triable issue of material fact.”
The court concluded that OneBeacon and the other insurers had not presented
evidence showing that as a matter of equity the court should depart from the general rule
that the contracting parties’ mutual understanding of the contract is conclusive on its
interpretation. At most, the court found, they had argued that the Rockwell parties could
change the intent and meaning of the transactions at any time, leading to a potentially
different understanding of the meaning of the transaction agreements at any point in the
future, but this argument was insufficient to establish a triable issue of material fact
because the insurers presented no evidence of detrimental reliance, a contrary position,
potential double recovery, or any other equitable concern.
Accordingly, the trial court concluded, the Rockwell parties had established that
they were entitled to summary adjudication of the issue of duty in their favor, although
6
the specific details of the duties owed under each policy remained to be determined later
in the action.
III. The Motion for Summary Adjudication Should Have Been Denied
A. Relevant Law on Intent and Contract Interpretation
Although OneBeacon raises a number of procedural challenges to the grant of
summary adjudication, we address the central substantive question underlying the motion
for summary adjudication: Is the mutual present interpretation of a contract by the
successors of the contracting parties determinative of the meaning of the contract as it
relates to the question of duty? While there appears to be some debate whether
California or New York law applies to this question, under either state’s law the outcome
is the same.
Under both California and New York law, the fundamental goal of contract
interpretation is to carry out the mutual intention of the parties at the time of contracting.1
California Civil Code section 1636 provides, “A contract must be so interpreted as to
give effect to the mutual intention of the parties as it existed at the time of contracting, so
far as the same is ascertainable and lawful.” In New York, “[i]t is well settled that [the
court’s] role in interpreting a contract is to ascertain the intention of the parties at the time
they entered into the contract.” (Evans v. Famous Music Corp. (N.Y. 2004) 807 N.E.2d
869, 872.) The trial court’s conclusion that the parties’ mutual present understanding as
to the meaning of contracts entered into by their predecessors conclusively establishes the
1
The parties’ intent is a question of fact when resort to extrinsic evidence is
required to ascertain their intent. (Abifadel v. CIGNA Ins. Co. (1992) 8 Cal.App.4th 145,
159; Ashland Management v. Janien (N.Y. 1993) 624 N.E.2d 1007, 1009.) One of the
agreements involved in this litigation has already been determined to be ambiguous with
respect to the assignment of coverage. We are not called upon here to determine whether
the remaining agreements are ambiguous; the Rockwell parties and OneBeacon appear to
agree that the intent of the parties on the issue of assignments cannot be determined here
from the language of the contracts, as each party predicates its arguments on the need to
look at evidence other than the contractual language.
7
meaning of those contracts contravenes this principle. Present-day concurrence between
the successors to the original parties to the contracts as to how they now contend the
contracts should be interpreted is neither equivalent to nor determinative of the
objectively manifested intent of the original contracting parties at the time they entered
into the contracts. (See Steller v. Sears, Roebuck and Co. (2010) 189 Cal.App.4th 175,
184-185 [intent of parties determined based on objective manifestations of agreement and
expressions of intent]; Brown Bros. Elec. Contrs., Inc. v. Beam Constr. Corp. (N.Y.
1977) 361 N.E.2d 999, 1001 [look to “the objective manifestations of the parties as
gathered by their expressed words and deeds” when determining whether a contract was
formed and what were the terms].)
Because the goal of contract interpretation is to carry out the mutual intention of
the parties at the time of contracting, the central question on the issue of duty here is the
mutual intention of the parties at the time of contracting with respect to the assignment of
insurance coverage, if any mutually held intent existed. The Rockwell parties’ motion
for summary adjudication was not directed toward establishing that no triable issue of
material fact existed on this issue, and the evidentiary showing did not pertain to intent at
the time of entering into the contract. Accordingly, the Rockwell parties failed to meet
their initial burden to demonstrate no triable issue of fact existed as to duty, and the trial
court should have denied their motion for summary adjudication. (Code Civ. Proc.,
§ 437c, subd. (p).)
B. Rockwell Parties’ Arguments
We are not persuaded by the Rockwell parties’ arguments for disregarding the
central precept that the meaning of the contract is the meaning that the parties ascribe to it
at the time of contracting. First, the Rockwell parties rely upon section 201(1) of the
Restatement (Second) of Contracts. Restatement (Second) of Contracts, section 201
provides that if the parties attach the same meaning to a contract or contract term, the
8
contract is interpreted in accordance with that meaning; but if the parties differ in the
meaning they attach to a contract or term thereof, it is interpreted in accordance with the
meaning attached by one of them if at the time the agreement was made that party did not
know of or had no reason to know of any different meaning attached by the other, but the
other knew or had reason to know the meaning attached by the first party. (Rest. 2d.
Contracts, § 201.) Not only does section 201, when read in its entirety rather than taking
one subdivision in isolation, appear to concern the meaning held by the parties at the time
of contracting, but also the Restatement cannot supersede California and New York law
that the intent at the time of contracting is the intent to be effectuated when interpreting a
contract. (Cal. Civ. Code, § 1636; Evans v. Famous Music Corp., supra, 807 N.E.2d at
p. 872.)
Next, the Rockwell parties rely upon Insurance Corporation of America v. Dillon,
Hardamon & Cohen (N.D. Ind. 1988) 725 F.Supp. 1461, in which the parties to an
insurance contract agreed on the amount of coverage provided by the policy per policy
year, and the insurer argued that when an insurer and insured agree on the interpretation
of a particular provision, that agreement ends all inquiry into the meaning of the contract.
(Id. at pp. 1464-1465.) While the district court did find attractive the mutual-agreement
argument advanced by the insurer, noting that it “has much to recommend it” (id. at
p. 1465), the court did not accept the insurer’s argument and treat the agreement between
the parties as conclusive. Instead, after acknowledging the persuasiveness of that
argument, the district court ruled that the agreement or disagreement of the parties was
ultimately irrelevant because the insurance contract was not ambiguous and could
reasonably be interpreted in only one way. (Id. at pp. 1465-1467.) Moreover, this
approach to contract interpretation may have appealed to the Dillon court because it was
applying Indiana law, which the court did not understand to require determination of the
intent of the parties at the time of contracting: The Dillon court described its obligation
“to ascertain and enforce the intent of the parties,” but the court did not appear to believe
itself restricted to ascertaining and enforcing the intent of the parties at any particular
point in time. (Id. at p. 1464.) A court applying California or New York law is, in
9
contrast to the Dillon court, properly focused on the intent of the parties at the time they
entered into the contract in question. (Cal. Civ. Code, § 1636; Evans v. Famous Music
Corp., supra, 807 N.E.2d at p. 872.)
Last, the Rockwell parties assert without supporting authority that the principle
that contracts are to be interpreted in accordance with the intent of the parties at the time
of contracting “simply has no application where, as here, the contracting parties are in
accord on that intent . . . .” The Rockwell parties, however, did not present evidence in
conjunction with their summary adjudication motion of any accord as to intent at the time
the contracting parties entered into the contracts regarding assignments of insurance
coverage. Their evidentiary showing was limited to establishing a shared present-day
understanding of the contracts, and they argued that evidence pertaining to intent at the
time of contracting was irrelevant and immaterial.
The Rockwell parties’ position that the contracting parties’ present day agreement
is paramount and conclusive on the meaning of the contracts with respect to assignments
fails not only because it contravenes California and New York law on the interpretation
of contracts, but also because it presents significant potential for abuse. This view
amounts to an assertion that when two parties enter into a contract that impacts the
obligations of a third party, then regardless of what the contract terms provide,2 the
parties to that contract (or their successors) may, at any point in the future, decide what
they at that juncture wish the contract to mean with respect to the third party, then compel
the third party to comply with their later-selected interpretation. The affected third party
has no recourse, no matter what the parties have later decided their earlier contract
obligated the third party to do, for to resist the latter-day agreement about the earlier
contract would make the third party an “officious intermeddler.” Or, to place this
2
It is not clear that the Rockwell parties’ argument is limited to circumstances in
which a contract’s language is ambiguous. As they maintain that “the parties to a
contract have the first and last word on what it means” and that “when the parties to a
contract agree on what it means, the courts enforce that meaning,” the logical impact of
this argument is that the parties’ present construction of any contract language, so long as
it is mutually held, could not be questioned—appears to make no distinction between
contracts that are ambiguous and contracts that are not.
10
argument in the context of the factual allegations in this case, Boeing and the Rockwell
parties can in 2011 agree to interpret their contracts dating from 1988 to 1997 as having
assigned insurance coverage rights in the subject transactions. Then, by virtue of this
2011 agreement, they may compel the insurers that issued numerous insurance policies
decades earlier to cover claims made against the Rockwell parties—regardless of what
the contracting companies intended to happen to the insurance coverage at the time they
entered into the contracts. The insurers apparently have no ability to constrain or
challenge the interpretation of the successors to the contracting parties despite the
obvious impact on their obligations, nor does the court appear to have any role except to
enforce whatever Boeing and the Rockwell parties in the present day agree about what
they would like those contracts to have accomplished with respect to assigning insurance
coverage. This cannot be the law.
We conclude that because the mutual present interpretation of a contract by the
successors of the contracting parties is not determinative of the meaning of the contract,
the Rockwell parties’ motion for summary adjudication and accompanying evidentiary
showing were insufficient to demonstrate that no triable issue of material fact existed as
to the issue of duty. (Code Civ. Proc., § 437c, subd. (p).) The trial court erred in
granting the motion for summary adjudication.3
DISPOSITION
The writ of mandate is issued directing the trial court to vacate its order of
September 14, 2012, granting the motion for summary adjudication, and to enter a new
and different order denying the motion.
3
Our conclusion that the summary adjudication was improperly granted on
substantive grounds makes it unnecessary to address OneBeacon’s claims that the
summary adjudication was procedurally improper.
11
ZELON, J.
We concur:
WOODS, Acting P. J.
SEGAL, J.
Assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
12
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108 Cal.App.2d 466 (1951)
In re JONE WELCH, a Minor. CLIFFORD HAKES et al., Respondents,
v.
SYDNEY PERKINS, Appellant.
Civ. No. 18432.
California Court of Appeals. Second Dist., Div. Three.
Dec. 28, 1951.
James M. Fizzolio and C. Thomas Fizzolio for Appellant.
Church, Church & Howard for Respondents.
WOOD (Parker), J.
Appeal from a decree adjudging that a minor is an abandoned child within the meaning of section 701 of the Welfare and Institutions Code, and from an order declaring that she is free from parental control.
Section 701 of said code provides: "The jurisdiction of the juvenile court extends also to any person who should be declared free from the custody and control of either or both of his parents. The words 'person who should be declared free from the custody and control of either or both of his parents' shall include any person under the age of 21 years who comes within any of the following descriptions: (a) Who has been left by either or both of his parents in the care and custody of another without any provision for his support, or without communication from either or both of his parents, for the period of one year with the intent on the part of such parent or parents to abandon such person. Such failure to provide, or such failure to communicate for the period of one year, shall be presumptive evidence of the intent to abandon. Such person shall be deemed and called a person abandoned by the parent or parents abandoning him."
It was alleged in the petition herein (for an order declaring the minor free from parental control) that the minor, Jone Welch, had been left in the care of Mona Tate Kramer by her parents without any provision for her support, and without communication from said parents, with the intent on the part of said parents to abandon said person for the *468 period of one year and more, "to-wit, continuously since the 9th day of January, 1948, to the time of filing this petition [February 25, 1949]." In a supplement to said petition, filed November 14, 1950, it was alleged that since January 13, 1949, upon which date Mona Tate Kramer placed said child in the home of Clifford and Peggy Hakes, the mother has not communicated with said child at the home of the Hakes and that the address and telephone number of the Hakes were well known to said mother; that since January 13, 1949, she has made no provision whatever for the support of the minor; that she has been capable of earning money for the support of said minor. The court found that the allegations of the petition and the supplement to the petition were true.
Appellant, who is the mother of the child, contends that the evidence is insufficient to establish any intention on her part to abandon the child.
Jone Welch, a girl, was born out of wedlock on September 12, 1944. In February, 1945, appellant placed her in the home of Mrs. Kramer. Appellant and Mrs. Kramer entered into a written agreement which provided that Mrs. Kramer would take full care of Jone; that appellant would pay Mrs. Kramer $21 a week in advance, appellant would assume the financial responsibility of medical care and clothes, and she would keep Mrs. Kramer notified at all times as to her address. She made the payments for the years 1945 and 1946, but the payments for the latter part of 1946 were made at irregular intervals. On May 9, 1947, appellant was in arrears in the payments for Jone's care in the sum of $277. Thereafter, in May of that year, she paid Mrs. Kramer $35, and on December 24th of that year she paid her $60. On January 3, 1948, she paid $80, and on January 9, 1948, she paid $50. No payment has been made by appellant since that date. On January 13, 1949, Mrs. Kramer placed Jone in the home of the respondents, Mr. and Mrs. Hakes, and Jone has lived there since that time.
During the first few weeks Jone lived with Mrs. Kramer, the appellant visited her on week-ends. About June, 1945, appellant and Mrs. Kramer took Jone to the Children's Hospital, and as a result of examinations it was determined that Jone had a defective hip which was a congenital condition. Jone was placed in a plaster cast which extended from her armpits to one of her ankles. She remained in the hospital about 10 days and was then removed to Mrs. Kramer's home. Appellant paid the hospital bill when Jone left the hospital. *469 Jone remained in a cast about eight months. During that time she required nursing services 24 hours a day, which services were rendered by Mr. and Mrs. Kramer. Approximately once a month it was necessary to take Jone to the hospital for medical treatment. On two occasions appellant and Mrs. Kramer took her to the hospital and the other times Mr. and Mrs. Kramer took her. During the time she was in a cast, appellant saw her four or five times.
In January, 1946, appellant married Mr. Dagmar. In May, 1946, she went to Las Vegas, Nevada, and in October, 1946, she filed a divorce complaint in Las Vegas. Later that year, when she was ill, she went to Mrs. Kramer's home and remained there two or three days as a guest. She lived in Las Vegas about eight months, and then she returned to California. In May, 1947, appellant took Jone to a birthday party and then returned her to Mrs. Kramer's home. Thereafter, Mrs. Kramer tried to communicate with appellant. Mrs. Kramer testified that she sent a registered letter to each of the addresses which appellant had given to her, and that the letters were returned. With reference to accepting registered mail, appellant testified that she "refused registered mail all along, and would still refuse any registered mail." In one of the letters, which was sent on July 8, 1947, Mrs. Kramer stated that she had tried repeatedly for about two months to locate appellant, that appellant had ignored all her requests to get in touch with her, and that Jone's board bill had reached the sum of $410. In another of those letters, which was sent on August 23, 1947, she stated, among other things, that appellant's "complete indifference to Jone and her care, health or progress, and your failure to contribute anything towards her support for months, leads me to believe the task of caring for a child is really too much for you. ... However your bill now has reached the fabulous size of almost $600.00 and something must be done. The following is a suggestion. That I adopt Jone."
On August 28, 1947, the Children's Hospital Society wrote a letter to Mrs. Kramer stating that it was enclosing a form which should be taken to the probation department "in order that we may have court consents for Jone's treatment." Thereafter Mrs. Kramer filed a petition to be appointed Jone's guardian and in October, 1947, she was appointed such guardian. She testified that it was necessary to have a guardian in order to obtain medical treatment for Jone. *470 In November, 1947, when appellant went to Mrs. Kramer's home she was told about the guardianship proceeding. On Christmas, 1947, appellant went to the Kramer home and gave clothing and other presents to Jone. At that time she and Mrs. Kramer discussed the guardianship proceeding, and appellant stated, in effect, that she objected to efforts to take her baby from her.
On January 9, 1948, appellant visited Jone at the home of Mrs. Kramer. Thereafter appellant went to San Francisco, and while there, on January 14, 1948, she wrote a letter to Mrs. Kramer in which she stated that she had sent Jone a music box, and that she was going to send money orders every Friday. She stated further in that letter that she had "been thinking over what you did about Jone [the guardianship] and I realize it was the best thing because I know me and it always takes a large jolt to put me straight. Have faith in me and I'll keep my end up and you won't be sorry ... kiss my baby for me and tell her I love her very much."
About Easter, 1948, appellant went to Mexico and stayed there 10 days. About June, 1948, Mrs. Kramer went to appellant's apartment, on Havenhurst Street in Los Angeles, and told her that she (appellant) would have to do something with the baby--that if she was not able or willing to take care of her she ought to let someone adopt her. Appellant stated that she did not want her child adopted. Thereafter appellant moved from that apartment to a larger apartment. She testified that she moved there in order to have Jone with her. On July 28, 1948, Mrs. Kramer requested that the probation department make an investigation regarding the place where the child should live. About August 1, 1948, a probation officer interviewed the appellant and made a written report of the interview. In her report the officer stated, "The mother has rented a three-room apartment which includes an adjoining outdoor play space for the child, on the assumption that she would soon have Jone in the home with her."
In August, 1948, Mr. and Mrs. Kramer went to Oregon on a vacation and took Jone with them. During their absence appellant went to their home and talked with a friend of the Kramers. The friend wrote a letter to Mrs. Kramer in which she stated that appellant apparently wanted Jone and that appellant did not believe that Jone was on a vacation with the Kramers. Upon receiving that letter, Mrs. *471 Kramer sent a letter to the appellant in which she stated, "when some months ago I finally located you on Havenhurst St., I called on you really to discuss this [Jone's care] & how you intended paying me (your bill now nearing 1400 dollars) but when I saw where and how you were living it flashed thru my mind that it was a hopeless case and Jone deserves something better & more solid--hence the question of adoption. ... However--show me your ability to give her a fair chance and I certainly will listen to reason. To suddenly wrench her away from the only home she has ever known would be cruel beyond words, but if you can prove you can care properly for her, a gradual weaning can be established. ... Your definite obligation however now is to pay your bill for her care. When I return I'll call you and we can discuss this from every angle." That letter was received by appellant. After Mrs. Kramer returned from Oregon, she and appellant had a telephone conversation. On September 12, 1948, Jone's birthday, appellant visited Jone at Mrs. Kramer's home and gave her a small ceramic horse.
On November 10, 1948, Mrs. Kramer wrote a letter to appellant in which she stated: "We have been terribly distraught and worried realizing this change must come about. One cannot live almost four years, actually sacrifice and suffer with a little girl as we have with Jone without loving her as we would our very own ... but apparently it is not to be--and we ask the privilege here--should circumstances so arise as to alter your decision, please give us the privilege of adopting Jone. As you now have this new apartment and feel able to care for her it is now necessary to face the change. ... She [Jone] knows no one but ourselves and no home but ours. ... It would be a terrible blow were she to be torn from this suddenly. ... To soften this ... we suggest you be our guest for three or four days to get acquainted with her, so we may introduce you as her mother under any title you prefer. ... Won't you call and set a date for a friendly visit, perhaps the latter part of this week." Mrs. Kramer testified that she received no reply to that letter. Appellant testified that shortly after she received that letter she telephoned to Mrs. Kramer and "told her that I wanted my daughter now and I had a place for her." A few days before Christmas, 1948, appellant telephoned to Mrs. Kramer and made arrangements to visit Jone at 10 o'clock Christmas morning. She arrived about 1 p.m. and brought gifts to *472 Jone, and she stayed there about 20 minutes. She did not mention the letter in the telephone conversation or during her visit on Christmas at the Kramer home. As above stated, on January 13, 1949, Jone went to live with Mr. and Mrs. Hakes. On July 22, 1949, appellant visited Jone, who was at Mrs. Kramer's home that day, and stayed about 20 minutes. On Christmas Day, 1949, appellant went to Mrs. Kramer's home and asked where Jone was. Mrs. Kramer replied that appellant knew that Jone was with Mr. and Mrs. Hakes. Appellant then stated that she would go to their home to see Jone, and Mrs. Kramer told her that Mr. and Mrs. Hakes and Jone were out of town. At the time of the hearing herein (November 13, 1950) appellant had not seen Jone since her visit on July 22, 1949.
On February 25, 1949, Mr. and Mrs. Hakes and Mrs. Kramer filed the petition herein for an order declaring Jone free from parental control. On July 15, 1949, the appellant herein filed a petition for a writ of habeas corpus, which was denied. Also on July 15, 1949, the appellant filed a petition for removal of the guardian, which was denied without prejudice on January 18, 1950. In May, 1950, appellant filed a second petition for removal of the guardian, and it appears that no hearing was had thereon for the reason a citation had not been issued. Prior to the hearing on the petition herein (re abandonment), Mr. and Mrs. Hakes filed a petition for adoption of Jone. Those petitions came on for hearing on the same date, November 13, 1950, and the petition re abandonment was heard and determined first. (The petition re adoption was granted at a later date.)
Appellant testified that in 1945 and 1946 she worked as a motion picture actress; she earned not less than $3,000 in 1945 and approximately $7,000 in 1946; in 1947 she worked only four days in motion pictures and earned $22 a day; in that year she collected the maximum unemployment benefits which were in excess of $300 and she lived with friends in Sherman Oaks from the middle of the summer until December; then she went to San Francisco for a few weeks and occupied an apartment of a man who was out of the city, but during that time she traveled back and forth between San Francisco and Los Angeles. She testified that in 1948 she earned barely enough to live on and she received financial assistance from her mother and also from a man friend; during that year she started to work as an apprentice dog trainer; she did not get a "set salary," she received *473 $200 or $300 from her employer and she also received tips from the customers; while working as such apprentice, she purchased an automobile--"an old jalopy" for which she made a down payment of $50; two weeks later she discovered that it needed a new motor, and she let the seller reclaim it. Counsel for petitioner asked appellant if she had attempted to secure any gainful employment instead of working as an apprentice and making no money. Appellant replied that it was an odd question--that she was desperately trying to get along and make money in her own way in a business world; that she did not approve of women working; and that she and her mother "were building a future, a kennel and a pet shop." She testified further that during 1948 she lived for four or five months in an apartment house which belonged to the man who was giving her financial assistance; she then moved into a house where she lived about eight months, and the rental of $85 a month was paid by the same man friend. She testified further that she first learned that Jone was living with Mr. and Mrs. Hakes about May, 1949, when she was served with the petition herein.
[1] Appellant asserts that the evidence is insufficient, as a matter of law, to support the decree that Jone is an abandoned child within the meaning of section 701(a) of the Welfare and Institutions Code. Said section contemplates that, in order to establish an abandonment, there must be proof that the child was left voluntarily by his parent with another, without any provision for his support or without communication from the parent for a period of one year, and with the intent on the part of the parent to abandon him. (In re Cattalini, 72 Cal.App.2d 662, 665 [165 P.2d 250].) As above shown, appellant voluntarily left Jone in the care of Mrs. Kramer. [2] The court found that she made no provision for Jone's support for a period of more than a year beginning January 9, 1948. The evidence supports that finding. Appellant agreed to pay $21 a week for Jone's support, to pay for her medical care and clothing, and to keep Mrs. Kramer informed as to appellant's address. After January 9, 1948, appellant made no payment for Jone's support, for medical care or clothing, and she failed to keep Mrs. Kramer informed as to her whereabouts. [3] The failure to provide for a minor for the period of one year is presumptive evidence of the intent to abandon the minor. (Welf. & Inst. Code, 701(a), supra.) "While this presumption may be overcome by opposing evidence the question whether an *474 intent to abandon has existed for a period of a year is a question of fact for the trial court." (In re Sanders, 88 Cal.App.2d 251, 254 [198 P.2d 523].) [4a] Appellant asserts that her failure to make payments for support was due to her financial distress. The court found that appellant was able to provide for Jone's support during the period of the alleged abandonment. As above shown, during the year following January 9, 1948, appellant went to San Francisco and she went to Mexico for 10 days; she made a down payment of $50 on the purchase of an automobile; at the time a probation officer visited her in August she was living in a three-room apartment; and she testified that later she moved into a house which was rented for $85 a month. [5] It is the province of the trial court to weigh the evidence and determine the credibility of the witnesses. (In re Creely, 70 Cal.App.2d 186, 189 [160 P.2d 870].) [4b] It cannot be said, as a matter of law, that finding was not supported by the evidence.
The said statutory presumption of intent to abandon, and the other evidence including the inference which might reasonably be drawn therefrom, are legally sufficient to support the finding of abandonment. (See In re Sanders, 88 Cal.App.2d 251, 256 [198 P.2d 523].)
[6] Appellant also contends that the court erred in considering the child's desire to remain with Mr. and Mrs. Hakes. The trial judge asked the child how she liked to live with Mr. and Mrs. Hakes, and whether she preferred to live with them or with the appellant. The issue herein was whether there was an abandonment of the child. The child's wishes, with respect to where she preferred to live, were immaterial upon that issue. [7] Irrespective of the interview of the child by the judge, if the evidence otherwise was legally sufficient to support the finding of fact as to abandonment, this court is not empowered to disturb the decree of the trial court. The evidence being legally sufficient, as above stated, this court is bound by the trial court's finding.
The decree and order are affirmed.
Shinn, P. J., and Vallee, J., concurred.
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580 F.2d 1046
U. S.v.Franks
No. 78-1069
United States Court of Appeals, Second Circuit
5/30/78
1
E.D.N.Y.
2
AFFIRMED*
*
Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23
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Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Michael J. Galloway, Appellant Appeal from the Criminal District Court 4
of Dallas County of Dallas County, Texas
No. 06-13-00158-CR v. (Tr. Ct. No. F-1054302-K). Opinion
delivered by Chief Justice Morriss, Justice
The State of Texas, Appellee Carter and Justice Moseley participating.
As stated in the Court’s opinion of this date, we find there was partial error in the
judgment of the court below. Therefore, we modify the trial court’s judgment to reflect a plea of
not true, and a finding that appellant violated conditions H, K, R and U. As modified, the
judgment of the trial court is affirmed.
We note that the appellant, Michael J. Galloway, has adequately indicated his inability to
pay costs of appeal. Therefore, we waive payment of costs.
RENDERED MAY 22, 2014
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4936
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN CARLOS ESCAMILLA-VASQUEZ, a/k/a Jose
Estrada,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6844)
______________
Submitted: July 28, 2006 Decided: September 22, 2006
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Raleigh, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Juan Carlos Escamilla-Vasquez pled guilty without benefit
of a plea agreement to reentering the United States after being
deported, 8 U.S.C. § 1326(a), (b)(2) (2000), and was sentenced to
a term of sixty months imprisonment. Escamilla-Vasquez appealed
his sentence, alleging that the district court erred in calculating
his criminal history under U.S. Sentencing Guidelines Manual
§ 4A1.1 (2002). We affirmed the sentence. United States v.
Escamilla-Vasquez, 104 F. App’x 285 (4th Cir. 2004) (No. 03-4936).
The Supreme Court later granted certiorari, vacated this court’s
judgment in light of United States v. Booker, 543 U.S. 220 (2005),
and remanded the case for further proceedings. We again affirm the
sentence.
On remand, Escamilla-Vasquez argues that the district
court plainly erred under Booker in (1) applying the guidelines as
mandatory and (2) enhancing his sentence for a prior crime of
violence in violation of the Sixth Amendment when the indictment
did not charge that his prior breaking and entering conviction was
a burglary of a dwelling.1 The government contends that the
1
The government maintains that Escamilla-Vasquez waived any
claim of error under Booker by not raising a constitutional
objection at sentencing or in his initial brief. Although the
Government correctly states the general rule, see United States v.
Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well
settled rule that contentions not raised in the argument section of
the opening brief are abandoned.”), we decline to enforce it in
light of our order directing the parties to file supplemental
- 2 -
challenged enhancement is based on the fact of a prior conviction
and is thus outside the scope of Booker.2
Under Booker, a Sixth Amendment error occurs when the
district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Booker, 543 U.S. at 245. Here, a “crime of violence,”
as used in § 2L1.2, is defined in the commentary to include
burglary of a dwelling, as well as “any offense under federal,
state, or local law that has as an element the use, attempted use,
or threatened use of physical force against the person of another.”
USSG § 2L1.2, comment. (n.1(B)(iii)). Escamilla-Vasquez concedes
that an 8-level enhancement could have been correctly given in his
briefs addressing Booker. See United States v. Washington, 398
F.3d 306, 312 n.7 (4th Cir.) (stating that “[a]lthough appellate
contentions not raised in an opening brief are normally deemed to
have been waived ··· the Booker principles apply in this proceeding
because the [Supreme] Court specifically mandated that we must
apply [Booker] ··· to all cases on direct review.”) (internal
quotation marks and citations omitted), cert. denied, 125 S. Ct.
2558 (2005); United States v. James, 337 F.3d 387, 389 n.1 (4th
Cir. 2003) (“Because the court requested the additional briefing,
this case is not governed by our rule that arguments not raised in
the appellant's opening brief are typically deemed abandoned on
appeal.”), cert. denied, 540 U.S. 1134 (2004).
2
The government also asserts that Escamilla-Vasquez admitted
the fact of a prior crime of violence by not objecting to that
characterization of his breaking and entering conviction in the
presentence report. However, we held in United States v. Milam,
443 F.3d 382, 387 (4th Cir. 2006), that a defendant’s failure to
object to an enhancement recommended in the presentence report does
not constitute an admission for Booker purposes.
- 3 -
case for a prior aggravated felony,3 but asserts that the district
court violated the Sixth Amendment by impliedly finding as a fact
that the prior breaking and entering was a crime of violence that
warranted a 16-level enhancement as recommended in the presentence
report.
Although we have not addressed this issue in a published
opinion, other courts of appeals have held that application of the
enhancement does not violate the Sixth Amendment because the
enhancement is based on the fact of a prior conviction. See United
States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir.), cert.
denied, 126 S. Ct. 2366 (2006); United States v. Perez-Ramirez, 415
F.3d 876, 877 n.2 (8th Cir. 2005); United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert. denied,
126 S. Ct. 457 (2005); United States v. Izaguirre-Flores, 405 F.3d
270, 273 n.9 (5th Cir.), cert. denied, 126 S. Ct. 253 (2005); see
also United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.)
(stating that Almendarez-Torres v. United States, 523 U.S. 224
(1998), was not overruled by Booker and remains the law), cert.
denied, 126 S. Ct. 640 (2005). Thus, we conclude that no Sixth
Amendment violation occurred in this case.
3
“Aggravated felony,” as used here, has the same meaning as
the term is given in 8 U.S.C. § 1101(a)(43) (2000). USSG § 2L1.2,
comment. (n.3(A)). The term includes a burglary offense punishable
by a term of imprisonment of at least one year. 8 U.S.C.
§ 1101(a)(43)(G).
- 4 -
While the mandatory application of the guidelines
constitutes plain error, United States v. White, 405 F.3d 208, 217
(4th Cir.), cert. denied, 126 S. Ct. 668 (2005), a defendant who
seeks resentencing on this ground must show actual prejudice, i.e.,
a “nonspeculative basis for concluding that the treatment of the
guidelines as mandatory ‘affect[ed] the district court’s selection
of the sentence imposed.’” Id. at 223 (quoting Williams v. United
States, 503 U.S. 193, 203 (1992)).
The district court plainly erred in sentencing Escamilla-
Vasquez under the mandatory sentencing guidelines scheme. White,
405 F.3d at 216-17. However, in assessing whether Escamilla-
Vasquez’s substantial rights were affected, we note that the
district court sentenced him three months above the bottom of the
guideline range, but made no other comments regarding its selection
of the sentence imposed. See id. at 223 (finding that defendant
failed to meet burden of demonstrating actual prejudice where “the
district court made certain statements suggesting that it was
content to sentence [the defendant] within the guideline range”).
Because the record contains no nonspeculative basis on which we
could conclude that the district court would have sentenced
Escamilla-Vasquez to a lower sentence had the court proceeded under
an advisory guideline scheme, we are satisfied that Escamilla-
Vasquez has failed to demonstrate that the plain error in
- 5 -
sentencing him under a mandatory guidelines scheme affected his
substantial rights.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 6 -
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09-1745-cv
Mayo v. County of Albany
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 17th day
of December, two thousand nine.
Present:
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
________________________________________________
KELLY ANN MAYO, an incapacitated person, by and through her father, JOSEPH F. MAYO,
as the proposed special guardian of the person and property,
Plaintiffs-Appellants,
v. No. 09-1745-cv
COUNTY OF ALBANY and CORRECTIONAL MEDICAL SERVICES, INC.,
Defendants-Appellees,
JAMES L. CAMPBELL, SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
SHANNON MARSHALL, CORRECTION OFFICER, IN HER INDIVIDUAL AND OFFICIAL
CAPACITY, JILL HARRINGTON, R.N., IN HER INDIVIDUAL AND OFFICIAL
CAPACITY, GLORIA COOPER, R.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY,
MARY BRUNO, R.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY, CATHY
PIENKOSKI, R.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY, TRISHA BECK,
L.P.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY, JANE DOE, AN
UNIDENTIFIED AGENT, SERVANT, AND/OR EMPLOYEE OF THE DEFENDANT,
CORRECTIONAL MEDICAL SERVICES, INC. AND MICHAEL SALZMAN, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY,
Defendants.
________________________________________________
For Appellants: JAMES E. MONROE , Dupée & Monroe, P.C., Goshen,
N.Y.
For Appellee County of Albany: SHAWN F. BROUSSEAU , Napierski, Vandenburgh &
Napierski, L.L.P., Albany, N.Y.
For Appellee Correctional Medical
Services, Inc.: DEBRA J. YOUNG , Thuillez, Ford, Gold, Butler &
Young, L.L.P., Albany, N.Y.
Appeal from the United States District Court for the Northern District of New York
(Sharpe, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiffs appeal from the district court’s grant of summary judgment to the defendants on
plaintiffs’ claims for deliberate indifference pursuant to 42 U.S.C. § 1983, breach of contract and
negligence under state law. We review the district court’s judgment de novo. See Jaramillo v.
Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). We assume the parties’ familiarity with
the facts, procedural history, and specification of issues on appeal.
2
As an initial matter, municipal liability against the County of Albany attaches only if
Mayo can demonstrate a policy, custom or practice which deprived her of a federal or
constitutional right. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also
Ciraolo v. City of New York, 216 F.3d 236, 242 (2d Cir. 2000). We also note that the Eighth
Amendment is not directly applicable to Mayo because she was a pretrial detainee. See Johnson
v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973) (overruled on other grounds). Constitutional claims
by pretrial detainees must instead be analyzed under the Due Process Clause of the Fourteenth
Amendment, which, in practice, involves the same test as that used to analyze claims by
convicted inmates under the Eighth Amendment. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.
1996). Until recently, the applicable standard was objective, requiring a lower threshold of proof
since it did not reach the defendant’s state of mind. However, as this Court has recently noted in
Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009), the Supreme Court’s decision in Farmer v.
Brennan, 511 U.S. 825 (1994), applied a subjective standard to Eighth Amendment deliberate
indifference claims, requiring evidence that the defendant “disregard[ed] a risk of harm of which
he [was] aware.” Caiozzo, 581 F.3d at 65 (quoting Farmer, 511 U.S. at 837). This Court, in
Caiozzo, resolved the ambiguity as to which test applies to Fourteenth Amendment deliberate
indifference claims by determining that the standard was indeed subjective, thereby overruling
Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990), which had earlier applied the objective standard.
See Caiozzo, 581 F.3d at 71. A plaintiff bringing a deliberate indifference claim must therefore
demonstrate that the defendant deliberately disregarded knowledge of the harm he knew he could
3
cause as a result of his actions. Id.1
To substantiate a claim of deliberate indifference, the plaintiffs must establish two
elements: that Mayo had a “serious medical condition” and that it was met with “deliberate
indifference.” Id. at 72 (internal quotation marks omitted). Thus, under Farmer (as applied to
the case at bar), Mayo must show that defendants knew of and yet disregarded excessive risk to
her health and safety, and that defendants were both “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exist[ed], and . . . also dr[e]w the
inference.” Farmer, 511 U.S. at 837; see also Caiozzo, 581 F.3d at 72. Indeed, the standard
requires a showing that defendants acted with “a state of mind that is the equivalent of criminal
recklessness.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (internal quotation marks
omitted).
To the extent that withdrawal from heroin and alcohol addictions presents a serious
medical condition, it appears undisputed that Mayo satisfied the first prong of the test. Mayo’s
claim, however, founders on the second prong. We cannot conclude that the informed decisions
to keep Mayo under active supervision, as opposed to constant supervision – a cumulative
determination after no less than three evaluations2 – was “deliberately indifferent.” At each
1
Caiozzo also reaffirmed the Court’s position that “[c]laims for deliberate indifference to
a serious medical condition or other serious threat to the health or safety of a person in custody
should be analyzed under the same standard irrespective of whether they are brought under the
Eighth or Fourteenth Amendment.” Caiozzo, 581 F.3d at 72.
2
Mayo was first evaluated upon arrest on May 13, 2006 and administered a Suicide
Prevention Screening; she was again evaluated by a nurse, who identified heroin and alcohol
addictions which prompted CMS’s doctor to order treatments and medication to address eventual
withdrawal symptoms; on the day of her suicide attempt, May 15, 2006, Mayo was evaluated a
third time by the doctor after exhibiting withdrawal symptoms.
4
evaluation, the medical personnel making the assessment came to an informed conclusion that,
despite some contraindications, Mayo was stable enough not to pose a suicide risk.
We decline plaintiffs’ invitation to adopt a per se rule requiring constant supervision for
inmate patients exhibiting symptoms of withdrawal from substance abuse in the absence of any
supportive authority. Neither can we credit plaintiffs’ contention that CMS failed to provide
adequately tailored care to Mayo’s specific needs because Mayo’s course of treatment reflected
adjustments in light of multiple evaluations and the “standing orders” in question were
handwritten instructions specifically responsive to Mayo’s case.
Plaintiffs’ reliance on 9 N.Y.C.R.R. 7003.3(h) and the related Chairman’s Memorandum
No. 17-99 is misplaced because these provisions articulate an affirmative duty to determine
whether an inmate requires additional supervision and to so provide only if it is determined
necessary. The threshold determination of what level of supervision an inmate requires in light
of his or her suicide risk remains, however, within the medical judgment of the prison medical
staff.
In light of the foregoing, we find that defendants were not deliberately indifferent to
Mayo’s medical condition, either by policy or practice, or by the care administered to Mayo, and
therefore we affirm the district court’s grant of summary judgment to defendants on this claim.
In order to substantiate a claim of negligence, plaintiffs must establish: (1) the existence
of a duty owed by the defendant to the plaintiff; (2) a breach of this duty; and (3) injury resulting
from the breach of duty by the defendant. See, e.g., Akins v. Glens Falls City School Dist., 53
N.Y.2d 325, 333 (1981). The primary inquiry is whether the injury was a reasonably foreseeable
consequence of the defendant’s actions. See Gordon v. City of New York, 70 N.Y.2d 839, 841
5
(1987). Where prison staff “know[s] or should know that a prisoner has suicidal tendencies or
that a prisoner might physically harm himself, a duty arises to provide reasonable care to assure
that such harm does not occur.” Id.
In light of the foregoing discussion, we cannot find that Mayo’s suicide attempt was a
reasonably foreseeable consequence of defendants’ actions, and we accordingly cannot find that
defendants were negligent. More specifically: (1) none of the evaluative tools employed
indicated that Mayo posed a suicide risk;3 (2) Mayo did not exhibit symptoms of withdrawal until
the day of her attempt, which, in any event, prompted a third evaluation by a doctor; (3) in
anticipation of withdrawal symptoms, Mayo was appropriately placed in a detox program; (4)
Mayo did not exhibit any suicidal ideation in contemporaneous conversations with her boyfriend
and father in the days leading to her attempt; and (5) there were no outward manifestations of
potential suicide up through the last 10 minutes before her suicide attempt. Plaintiffs’ only
evidence suggesting negligence, the expert affidavit of Dr. William B. Head, Jr., is premised on
the bare assumption, not founded in the evidence or supported by the expert’s own analysis, that
plaintiff was a suicide risk. This entirely conclusory assertion is insufficient to defeat summary
judgment. Accordingly, though plaintiffs argue that the failure to provide constant supervision in
light of Mayo’s substance addictions constitutes negligence, we again decline to adopt the per se
rule that plaintiffs advance and conclude that the district court did not err in granting summary
judgment as to this count.
Finally, as to the breach of contract claim, under New York law, a plaintiff claiming
3
The guidelines and protocols followed at the detention facility were approved by the
National Commission on Correctional Health Care, which is understood to represent the
applicable standard of care for inmates.
6
rights as a third-party beneficiary must demonstrate: “(1) the existence of a valid and binding
contract between other parties, (2) that the contract was intended for his benefit and (3) that the
benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the
contracting parties of a duty to compensate him if the benefit is lost.” State of California Pub.
Employees Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434-35 (2000) (internal quotation
marks omitted).
It is not disputed that a contract existed between the County of Albany and CMS for the
latter to provide medical services to prisoners and pretrial detainees. Nor is it disputed that Mayo
was the intended beneficiary of the contract. The main thrust of plaintiffs’ argument is that
defendants failed to provide the minimum standard of care as required by 9 N.Y.C.R.R.
7003.3(h) and the Chairman’s Memorandum. Since the Court has already determined that
defendants were neither deliberately indifferent nor negligent in the standard of care provided to
Mayo, we accordingly cannot find that there was a breach of contract due to defendants’ alleged
failure to provide appropriate care for the reasons stated above.
Plaintiffs seek to lower the evidentiary bar required to substantiate their claims by relying
on Noseworthy v. City of New York, 298 N.Y. 76 (1948). The Noseworthy doctrine’s “sphere of
operation is in the weight to be assigned to circumstantial evidence concerning disputed facts
because the more direct and proper source of this evidence no longer exists.” Kazanoff v. United
States, 945 F.2d 32, 35 n.4 (2d Cir. 1991) (internal quotation marks omitted). The Noseworthy
doctrine is inapplicable, however, because “this lesser degree of proof pertains to the weight
which the circumstantial evidence may be afforded by the jury, not to the standard of proof the
plaintiff must meet.” Holiday v. Huntington Hosp., 164 A.D.2d 424, 428 (N.Y. App. Div. 2d
7
Dept. 1990). Moreover, the primary rationale underlying the doctrine is not squarely presented
here since Mayo herself would not, in any event, have been qualified to testify as to the medical
adequacy of her treatment. At most, Mayo could have elucidated the exact events leading up to
her suicide attempt, which stands independent of the central inquiry into the adequacy of the
defendants’ medical care during her detainment.
We have considered appellants’ remaining arguments and find them to be without merit.
For the foregoing reasons, the Court AFFIRMS the district court’s grant of summary
judgment to the defendants.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
By:_________________________________
8
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EUGENE HUDSON, JR.,
Plaintiff,
v. Civil Action No. 19-2738 (JEB)
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Eugene Hudson, Jr. has been fighting a long-running, multi-front battle with
Defendant American Federation of Government Employees. The current skirmish relates to
Hudson’s membership in Local 1923, one of AFGE’s affiliates, and his annual dues. The Local
contends that it dropped him from its membership rolls after he failed to pay their dues; that
decision, in turn, stripped him of multiple rights within the organization, including the right to
run for an officer position. Plaintiff, who thought that he had already paid up, attempted to
challenge that result with AFGE. The national, however, did not step in, pointing out that
Hudson’s dispute concerned a Local issue.
Believing himself ill treated, Plaintiff brought this suit against AFGE, the Local, and the
U.S. Department of Labor. In his lengthy eight-count Complaint, Hudson accuses Defendants of
violating a number of federal statutes and the common law. In response, Defendants filed
separate Motions to Dismiss — one of which the Court granted earlier this month. See Hudson
v. AFGE, No. 19-2738, 2020 WL 2496952, at *1 (D.D.C. May 14, 2020) (concluding that sole
count against Labor was “moot and facially defective”). In seeking dismissal, AFGE and the
1
Local raise assorted arguments, including lack of subject-matter jurisdiction and failure to state a
claim. Agreeing with their positions, the Court will grant the remaining Motions.
I. Background
In the last few years, this Court has issued numerous Opinions detailing Hudson’s clashes
with AFGE and its leadership. See, e.g., Hudson v. AFGE, No. 17-2094, 2020 WL 1275685, at
*1–2 (D.D.C. Mar. 17, 2020). It will not recount the full history of the parties’ disputes but will
instead focus on those facts relevant to the instant Motions. And, as is required at this juncture,
it will draw the facts from the operative Complaint. See Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000).
Hudson has been an AFGE member since 1979. See ECF No. 25 (Corrected Amended
Complaint), ¶ 27. For most of the last forty years, he was part of Local 2452 — an AFGE
branch based in California. Id. at 5 & ¶¶ 27–28, 39–40. While a member of this affiliate,
Plaintiff rose within the Union’s ranks, serving in multiple leadership positions. Id., ¶¶ 28–32.
In 2012, Hudson reached the height of his AFGE career when he became the first black person
elected to serve as National Secretary Treasurer — the Union’s second highest office. Id.,
¶¶ 33–34. To take on his new responsibilities as NST, he left the Golden State and settled in
Maryland to be nearer AFGE’s D.C. headquarters. Id., ¶ 41. Plaintiff saw some success during
his five-year stint as NST; in 2015, for example, he was re-elected to the position. Id., ¶ 42.
Despite his triumphs, he found himself enmeshed in conflicts with several Union leaders, who
voted to remove him from his post in 2017, which removal is the subject of another ongoing suit.
Id. at 9–10.
These events, however, did not curtail Plaintiff’s interest in remaining active in Local
affairs. Id. at 5 & ¶ 45. In 2018, he sought to run for the position of Treasurer of AFGE’s Local
2
1923, a branch based in Baltimore. Id., ¶ 45. To do so, he first needed to transfer his
membership from his previous Local on the West Coast to Local 1923. Id. Plaintiff therefore
submitted a transfer application along with $50 to cover his annual dues as an active retiree
member — the membership status he reached when he turned 60 years old in 2013. Id., ¶¶ 37,
46–64. On September 24, 2018, Local 1923’s members approved Hudson’s request. Id., ¶ 68.
Some months later, in December 2018, he lost his bid to become the Local’s Treasurer.
Id., ¶ 74. He did not go away quietly, though. Shortly after the election, he filed a formal protest
within the Local, citing various “irregularities [and] violations of the law” during the election
process. Id., ¶¶ 75–76. When the Local denied his protest, he sought relief from AFGE
National. Id., ¶ 76. And when that did not pan out, he filed an administrative complaint with the
Department of Labor. Id., ¶¶ 78–81.
Matters only got worse for Plaintiff in 2019, when he became involved in another dust-up
with the Union. At the heart of the strife was whether Hudson had paid the Local’s annual dues.
In January 2019, the organization sent a letter to its retiree members seeking dues for that year.
Id., ¶¶ 82, 90; see also ECF No. 33-1 (Local 1923 Letter of Jan. 4, 2019) (requesting $50 dues).
Having received no response from Hudson, the Local followed up with another letter two months
later, reminding him to pay his dues. Id., ¶¶ 82, 90; see also ECF No. 33-2 (Local 1923 Letter of
Mar. 4, 2019). This second letter explicitly warned that if payment was not received by April 15,
2019, his “name [would] be removed from the membership roles [sic].” Mar. 4 Ltr. Hudson did
not respond to this letter either. See Cor. Am. Compl., ¶¶ 82, 90. So, on April 15, the Local
followed through on its announcement and canceled Plaintiff’s membership. Id., ¶ 90.
Hudson, for his part, alleges that he never saw these letters. Id., ¶ 82. In his view, the
Local should have sent its requests to “his email account or by certified mail.” Id., ¶ 111. At any
3
rate, Plaintiff maintains that he had already paid a portion of his 2019 dues when he submitted
his transfer application in September 2018. Id., ¶ 64. According to Hudson, the then-President
of Local 1923 advised him that his payment covered his membership for an entire twelve-month
period — that is, until September 2019. Id.
On April 23, 2019, Plaintiff finally learned that the Local had rescinded his membership.
Id., ¶ 86. Seeking to re-establish his enrollment, he sent an email to newly elected Local
President Anita Autrey along with a $50 money order three days later. Id., ¶¶ 87–88. This
attempt, however, did not move the needle. Autrey informed him that, while his “retiree dues
were paid for 2018,” he had failed to remit his 2019 dues during the designated timeframe. Id.,
¶ 90. For that reason, she explained that his “membership with AFGE Local 1923 ha[d] been
irretrievably severed.” Id. (quoting Autrey Email of Apr. 30, 2019). Within days, she returned
his money order. Id., ¶ 91.
Not so easily deterred, Hudson “appealed” this membership decision directly to AFGE
National President J. David Cox in June 2019. Id., ¶ 113. This effort met with little success.
The National President responded that the conflict involved a Local matter that was outside of
his purview. Id., ¶ 114; see also ECF No. 8-2 (Exhibits of Sept. 13, 2019) at ECF p. 68 (Cox’s
Response of June 25, 2019) (stating that “AFGE National Constitution does not provide a direct
right of appeal of a local’s decision to terminate an individual’s membership”). Cox’s inaction,
in Plaintiff’s view, not only ran contrary to the Union’s Constitution but was also at odds with
measures that the National President had taken in other cases involving similar membership
disputes. See Cor. Am. Compl., ¶¶ 115–27.
The upshot of all this was that Hudson was not a member in good standing at the Local in
2019. Id., ¶ 104. Not surprisingly, such status deprived him of a number of rights, including the
4
right to vote in Local elections, nominate candidates for office, and run and serve (if elected) as a
union delegate. Id. Plaintiff, moreover, was not permitted to attend the Local’s general
membership meetings. Id., ¶ 105. When he attempted to do so in August 2019, Autrey, “in the
presence of Local 1923 members,” told Hudson that he was “not a member in good standing”
and denied him entry. Id.
On September 12, 2019, Plaintiff sued AFGE National, the Local, Autrey, and Labor.
See ECF No. 1 (Complaint). About a week later, he filed a 57-page Corrected Amended
Complaint that contains a mishmash of allegations revolving around the Local’s decision to
rescind his membership. See Cor. Am. Compl., ¶¶ 141–215 (Counts I–VIII). That action, in his
view, violated a host of federal statutes and the common law. Id. (asserting violations of the
Labor Management Reporting and Disclosure Act, Title VII of the Civil Rights Act of 1964, and
42 U.S.C. § 1981, as well as breach of contract, breach of the duty of good faith and fair dealing,
and defamation).
In separate Motions, Defendants AFGE, Local 1923, and DOL seek dismissal of the
Complaint on two principal grounds — lack of jurisdiction and failure to state a claim. See ECF
No. 52 (AFGE National); ECF No. 58 (AFGE Local 1923); ECF 61 (Department of Labor). On
May 14, 2020, this Court granted the Government’s Motion. See Hudson, 2020 WL 2496952, at
*1. It is now ready to rule on the remaining two. As discussed below in Section III, Autrey was
never served and thus has not appeared in the litigation.
II. Legal Standard
Defendants’ Motions invoke the legal standards for dismissal under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). When a defendant brings a Rule 12(b)(1) motion to
dismiss, the plaintiff must show that the Court has subject-matter jurisdiction to hear his claim.
5
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of
Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Absent subject matter jurisdiction over a case, the
court must dismiss [the claim].” Bell v. U.S. Dep’t of Health & Human Servs., 67 F. Supp. 3d
320, 322 (D.D.C. 2014). “Because subject-matter jurisdiction focuses on the court’s power to
hear the plaintiff’s claim, a Rule 12(b)(1) motion [also] imposes on the court an affirmative
obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand
Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).
In policing its jurisdictional borders, a court must scrutinize the complaint, granting the
plaintiff the benefit of all reasonable inferences that can be derived from the alleged facts. See
Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). A court need not
rely “on the complaint standing alone,” however, but may also look to undisputed facts in the
record or resolve disputed ones. See Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.
Cir. 1992).
Further, Rule 12(b)(6) provides for the dismissal of an action where a complaint fails to
“state a claim upon which relief can be granted.” The pleading rules, however, are “not meant to
impose a great burden upon a plaintiff.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347
(2005). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court
need not accept as true, then, “a legal conclusion couched as a factual allegation” nor an
inference unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178,
193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In short, the facts
6
alleged in the complaint “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555–56.
III. Analysis
Before diving into Hudson’s claims, the Court will briefly address a threshold issue —
whether Plaintiff properly served Local 1923 and Autrey in her individual capacity. Even a
cursory review of his filings reveals that he has not done so.
As the Local rightly points out, Hudson’s attempted service was inadequate for a number
of reasons. See Local MTD at 21–23. First, he did not serve the Local with a summons actually
naming it as a defendant in the case. See Fed. R. Civ. P. 4(a)(1)(B) (stating that “[a] summons
must be directed to the defendant”); ECF No. 58-2 (Declaration of Aaron McCoy), ¶¶ 6, 10; id.,
Exh. A (Summons). Second, Plaintiff did not attach the operative pleading — the Corrected
Amended Complaint — to the summons. See McCoy Decl., ¶ 8. Instead, he included a copy of
the original Complaint, which had already been superseded at the time of service. Compare ECF
No. 38 (Proof of Service) (Oct. 15, 2019), with Cor. Am. Compl. (filed Sept. 18, 2019); see also
Gilles v. United States, 906 F.2d 1386, 1390 (10th Cir. 1990) (explaining that when amended
pleading supersedes original complaint, subsequent service of original pleading is improper).
Third, nowhere in her Proof of Service affidavit does Hudson’s server indicate that she actually
served the Local. See Proof of Service (devoid of any reference to Local 1923). Rather, she
declared that she left the relevant materials with Aaron McCoy, who “accept[ed] service of
process on behalf of the Social Sec[urity] Office.” Id. Fourth, Plaintiff has offered no proof that
he even attempted to serve Autrey in her individual capacity. See Fed. R. Civ. P. 4(e) (laying out
requirements to serve individual).
7
Unfortunately for Hudson, his Opposition does little to help his cause; in fact, it is silent
on all these shortcomings. See ECF No. 66 (Pl. Opp.). A court, as a general matter, will not
entertain a lawsuit against a defendant where service is not properly effectuated in a timely
manner. See Fed. R. Civ. P. 4(m) (setting 90-day limit); Bush v. WMATA, No. 19-930, 2020
WL 921419, at *2 (D.D.C. Feb. 26, 2020). Out of an abundance of caution, this Court will
nevertheless set out below why dismissal of the Local and Autrey is appropriate on multiple
other grounds. This seems the wiser course since a process-based dismissal could permit
Hudson to properly serve these Defendants at a later time, and the parties would be right back
where they are now.
With that issue resolved, the Court can move to the merits of the matter. As will become
plain shortly, doing so is no easy task. For Hudson, instead of setting out one claim per count,
asserts myriad intertwined claims within different counts that invoke federal statutes and the
common law against several Defendants. See Cor. Am. Compl., ¶¶ 141–215. For ease of
analysis, then, rather than evaluate the eight counts individually, the Court will group the claims
by separate type.
A. LMRDA
A common thread running through the operative Complaint is that Defendants violated
Hudson’s rights under Title I of the LMRDA’s Bill of Rights by revoking his membership and
preventing him from running for office in local elections. See Cor. Am. Compl., ¶¶ 141–61,
185–206 (Counts I–II, V–VII). As pertinent here, the LMRDA provides that union members
shall have equal rights and privileges to vote and participate in elections, express their views
freely, and be free from improper discipline. See 29 U.S.C. § 411(a)(1), (2), (5). Hudson,
accordingly, contends that he cannot be denied these membership rights.
8
His claims, however, run up against a series of roadblocks. To begin with, this Court has
already explained that it has no jurisdiction to adjudicate LMRDA claims against the Local. See
Hudson v. AFGE, No. 19-2738, 2019 WL 6683778, at *2–3 (D.D.C. Dec. 6, 2019). Relevant
here, the Act covers a “labor organization engaged in an industry affecting commerce and
includes any organization . . . in which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers.” 29 U.S.C. § 402(i). As our Circuit noted, the
statute’s “definition of ‘employer[]’ specifically excludes federal, state and local governments.”
Wildberger v. AFGE, 86 F.3d 1188, 1192 (D.C. Cir. 1996) (citing 29 U.S.C. § 402(e)); see also
Berardi v. Swanson Mem’l Lodge No. 48, 920 F.2d 198, 201 (3d Cir. 1990) (Alito, J.) (same).
Armed with this authority, this Court previously found that the LMRDA was therefore
inapplicable to the Local, which represents only government employees. See Hudson, 2019 WL
6683778, at *3.
The same cannot be said for AFGE, however, as it is a “mixed” union, “represent[ing]
both government and private sector workers.” Wildberger, 86 F.3d at 1192. This point
notwithstanding, Hudson’s LMRDA claims ultimately fare no better against AFGE, as they are
preempted. To be more specific, AFGE correctly argues that Title VII of the Civil Service
Reform Act of 1978, see 5 U.S.C. § 7101 et seq., precludes this Court from exercising
jurisdiction over Plaintiff’s claims. See AFGE MTD at 5–16.
The CSRA, which “establishes a comprehensive scheme to deal with labor relations” for
the federal government, expressly addresses membership in a federal-sector union. AFGE v.
U.S. Sec’y of Air Force, 716 F.3d 633, 636 (D.C. Cir. 2013) (quoting Dep’t of Def. v. FLRA,
685 F.2d 641, 644 (D.C. Cir. 1982)). The Act applies to Hudson, a retired federal employee,
9
who disputes his membership in Local 1923 — a labor organization of government employees
covered under the Act. Two provisions in the Act bear on Hudson’s allegations.
First, Section 7116 — with few exceptions — prohibits a labor organization from
engaging in unfair labor practices, such as denying union membership to any employee it
represents. See 5 U.S.C. § 7116(c). This provision has been interpreted to cover cases in which
a labor organization of government employees has “expel[led] a current member or den[ied]
readmission to a former member.” NFFE Local 2189 and Jonathan Jarman, 68 F.L.R.A. 374,
376–77 (Mar. 24, 2015); see also AFGE Local 987 Warner Robins, GA and Nedra Bradley, 53
F.L.R.A. 364, 368–69 (Sept. 10, 1997) (observing that provision applies to litigant who had
retired from federal employment because “retired employees can be union members and
officers”). The Act creates a pathway for those seeking to challenge a union’s decision regarding
membership. In broad strokes, they can do so by filing an unfair-labor-practice charge with the
Federal Labor Relations Authority. See 5 U.S.C. § 7105(a)(2)(G). The Authority’s General
Counsel then decides whether to dismiss or pursue the charge. See Nat’l Air Traffic Controllers
Ass’n v. Fed. Svc. Impasses Panel, 606 F.3d 780, 783 (D.C. Cir. 2010). A party “aggrieved” by
that decision can then seek judicial review in the court of appeals. See 5 U.S.C. § 7123.
In addition, Section 7120 governs the sorts of election-related grievances that Hudson
brings here. Specifically, this provision regulates officer elections in federal-sector unions. See
5 U.S.C. § 7120(a)(1) (“calling for the maintenance of democratic procedures and practices
including provisions for periodic elections to be conducted subject to recognized safeguards and
provisions defining and securing the right of individual members to participate in the affairs of
the organization”). Here, too, the Act contemplates a specific adjudicative forum for unfair labor
practices arising during the election process. That is, any complaints with respect to an election
10
“shall be filed with the Assistant Secretary [of Labor for Labor Management Relations].” Id.,
§ 7120(d). Further, nowhere does the statute or its implementing regulations vest district courts
with the jurisdiction to adjudicate or review election issues. See Celli v. Shoell, 40 F.3d 324,
327 (10th Cir. 1994) (“Neither [the CSRA] nor its implementing regulations at 29 C.F.R. parts
457 and 458 create a right of action in district court.”).
These provisions are but two examples that highlight the integrated and exclusive nature
of the Act. See AFGE, 716 F.3d at 636. Given this comprehensive scheme, it is plain that
Congress intended that individuals bringing membership and election claims of the type
governed by the CSRA must seek redress through its administrative pathway, not through the
district court. As the Supreme Court has made clear, “[E]xtra statutory review is not available to
those employees to whom the CSRA grants administrative and judicial review.” Elgin v. U.S.
Dep’t of Treasury, 567 U.S. 1, 11 (2012). To borrow from the D.C. Circuit, Hudson “‘may not
circumvent that structure’ by seeking judicial review outside the CSRA’s procedures.” AFGE,
716 F.3d at 636 (quoting Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d
963, 967 (D.C. Cir. 1990)).
It makes little difference, moreover, that he frames his claims as violations of the
LMRDA; at bottom, he is challenging purportedly unfair labor practices. See Bourdon v.
Canterbury, 813 F. Supp. 2d 104, 107 (D.D.C. 2011) (“The plaintiffs, however, may not bypass
the CSRA's comprehensive statutory scheme by framing their duty of fair representation [— i.e.,
unfair-labor-practices — ] claims as violations of the . . . LMRDA.”); see also id. at 107 n.4
(reasoning that claims against mixed unions may be preempted if such claims, in essence, allege
unfair labor practices under CSRA); Burton v. AFGE, No. 11-1416, 2012 WL 3580399, at *13
(E.D.N.Y. Aug. 17, 2012) (holding that duty-of-fair-representation — that is, unfair-labor-
11
practices — claims against “AFGE, the local, or [its] employees” were preempted under Act).
His claims are therefore preempted. See Wood v. AFGE, 255 F. Supp. 3d 190, 195 (D.D.C.
2017).
To resist this conclusion, Plaintiff advances a few arguments, but none is persuasive.
Without citing any caselaw, he first maintains that the CSRA does not apply to him because he is
a retiree of the federal government. See Pl. Opp. at 7–8; see also Cor. Am. Compl., ¶ 37
(acknowledging “active retiree” status). Yet, in several cases, courts — including the Supreme
Court — have applied the Act to “former federal employees” seeking reinstatement of their
government positions or benefits. See, e.g., Elgin, 567 U.S. at 6–8; Lampon-Paz v. OPM, 732 F.
App’x 158, 159 (3d Cir. 2018) (affirming dismissal of former federal employee’s allegations on
CSRA-preemption grounds); Bell v. Laborde, 204 F. App’x 344, 345–46 (5th Cir. 2006)
(approving district court’s decision to preclude former federal employee’s constitutional and
state-law claims under CSRA). This same rationale applies to former federal employees vis-à-
vis their unions. See Buesgens v. Coates, 435 F. Supp. 2d 1, 2–4 (D.D.C. 2006) (concluding that
it lacked jurisdiction over federal-sector retiree’s claim against his union because it was covered
by CSRA and could be brought only before Authority).
In rejoinder, Hudson points out that an FLRA regional director wrote to him, explaining
that retired federal employees are not covered under the Act; as a result, he says, he cannot travel
the CSRA administrative path. See ECF No. 80-1 (Mar. 4, 2020, FLRA Dismissal Letter). That
decision appears to be in clear tension with the cases cited above. In any event, as the letter itself
explains, Hudson can appeal this ruling to the Authority’s General Counsel and eventually to the
D.C. Circuit. See id.; 5 U.S.C. § 7123. If the ultimate outcome of those appeals is that the
12
CSRA does not apply to him because of his retiree status, he can then move to vacate the
dismissal of this action and proceed here once again.
In addition, he relies on Solis v. AFGE, 763 F. Supp. 2d 154 (D.D.C. 2011), to argue that
his LMRDA claims are viable. See Pl. Opp. at 11–12. As here, that case involved a
disagreement over an individual’s membership status and eligibility to run for office. See Solis,
763 F. Supp. 2d at 156–58. The similarities end there. Solis involved a civil action filed by
Labor, rather than one brought by the aggrieved individual, as in this case. This difference in
posture matters, as the LMRDA expressly provides DOL the right to enforce certain violations in
the district court. See 29 U.S.C. § 482(b). In addition, the election at issue in Solis was at
AFGE’s national level and did not involve a local affiliate representing only government
employees. The opposite is true here, where the gravamen of Hudson’s complaint is directed at
the Local’s membership and electoral decisions. And, as the Court has already explained, Local
1923 is exempt from the LMRDA. Since Plaintiff cannot circumvent the administrative
procedures available to him under the CSRA, the Court will dismiss Hudson’s LMRDA counts
for want of jurisdiction.
B. Contract Claims
Next up are Plaintiff’s claims for breach of contract and breach of the covenant of good
faith and fair dealing. See Cor. Am. Compl., ¶¶ 141–52, 162–72 (Counts I and III). Hudson’s
theory appears to be that Defendants should not have revoked his membership without notice.
Id., ¶¶ 148, 164–65, 168. Their failure to provide him such notice, says Plaintiff, violated the
“AFGE and Local 1923 Constitutions [and] the AFGE NEC Dues Policy.” Id., ¶¶ 146, 148.
The Court can make quick work of these counts, as they are also preempted by the
CSRA. Although Plaintiff couches his claims in terms of breach of contract and the implied
13
covenant, the alleged factual basis for these actions is the revocation of his Local membership.
See Cor. Am. Compl., ¶¶ 148, 164–65, 168. As detailed above, this is precisely the kind of
grievance that is covered by the CSRA. See 5 U.S.C. § 7116(c) (addressing membership issues).
Indeed, he is free to pursue an unfair-labor-practice claim within the Act’s statutory framework.
Id., § 7105(a)(2)(G). What he cannot do, however, is avoid those procedures by seeking judicial
review here. See AFGE, 716 F.3d at 636. These contract claims thus proceed no further.
C. Discrimination
Counts I, II, and VIII allege that Defendants violated Title VII and 42 U.S.C. § 1981.
See Cor. Am. Compl. at 42, 44, 54–55. More concretely, Hudson maintains that he was
discriminated against on the basis of race when the Local rescinded his membership and left his
name off a members-in-good-standing list provided to Labor. Id., ¶¶ 141, 153, 201–12.
According to him, moreover, AFGE is on the hook because it refused to reinstate his
membership. Id., ¶¶ 212, 214. Finally, Plaintiff alleges that Defendants’ actions were in
retaliation for prior complaints of race discrimination he lodged against AFGE. Id., ¶ 210
(referencing filing of both July 2017 EEO complaint and October 2017 discrimination suit).
In their Motions, Defendants posit that these claims are also preempted by the CSRA and
should thus be dismissed. See AFGE MTD at 14–16; Local MTD at 15. Under that statute, a
labor organization has a duty to represent “the interests of all employees in the unit it represents
without discrimination.” 5 U.S.C. § 7114(a)(1). A breach of this duty constitutes an unfair labor
practice. Id., § 7116(b)(2) (deeming it such a practice “to cause or attempt to cause an agency to
discriminate against any employee”); id., § 7116(b)(4) (prohibiting “discrimin[ation] against an
employee with regard to the terms or conditions of membership . . . on the basis of race”).
Retaliating against a member is also considered an unfair labor practice. Id., § 7116(b)(3). And,
14
as the Supreme Court has stated, “[U]nfair labor practice complaints are adjudicated by the
[Authority].” Karahalios v. NFFE, Local 1263, 489 U.S. 527, 532 (1989); cf. AFGE, Local 495
and Linda Moore, 22 F.L.R.A. 966, 975 (July 31, 1986) (noting that Authority has exclusive
jurisdiction over alleged charges that union had discriminated against member in violation of
§ 7116).
To that end, Plaintiff cannot escape the CSRA’s reach by dressing up his membership
claim with a different label — i.e., Title VII and Section 1981. See, e.g., Johnson v. Principi,
No. 03-1367, 2004 WL 2044258, at *5–7 (N.D. Ill. Sept. 3, 2004) (determining that CSRA
preempts § 1981 claim against union); see also Wisham v. Commissioner, No. 08-8926, 2009
WL 2526245, at *3 (S.D.N.Y. Aug. 19, 2009) (same).
As a fallback, Defendants argue that Plaintiff’s retaliation claim also falls short on
12(b)(6) grounds. See AFGE MTD at 24–26; Local MTD at 17–18. The Court agrees. Both
Title VII and Section 1981 forbid retaliation against employees who engage in protected activity.
See 42 U.S.C. § 2000e–3(a); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 446 (2008)
(holding that § 1981 encompasses retaliation claims). To establish a prima facie case of
retaliation, a plaintiff must show that he engaged in protected activity, that his “employer took an
adverse personnel action against [him],” and that “a causal connection exists between the two.”
Carney v. Am. Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998).
The Local contends that Hudson’s EEO complaint and 2017 discrimination lawsuit were
filed against AFGE National. See Local MTD at 18. Because it was not the target of either
effort, the Local argues that it could not have retaliated against Plaintiff as a matter of law. Id.
For its part, AFGE posits that Hudson cannot establish a causal connection between the protected
events and the alleged retaliatory act. See AFGE MTD at 25. The two, says AFGE, are
15
separated by too much time to support an inference of causation. Id. (collecting cases where
courts held that more than three months is typically insufficient to establish causation). Recall
that the purported adverse action here occurred at the earliest in June 2019, when the National
President declined to reinstate Plaintiff’s Local membership. That was over a year and a half
after Hudson filed his discrimination suit in this Court. See Cor. Am. Compl., ¶ 210.
Perhaps recognizing the writing on the wall, Plaintiff did not address any of these
discrimination arguments in his Opposition. He has thus conceded them. See Dawn J. Bennett
Holding, LLC v. FedEx TechConnect, Inc., 217 F. Supp. 3d 79, 82–83 (D.D.C. 2016) (citing
LCvR 7(b)); see also Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d
15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an
opposition to a dispositive motion and addresses only certain arguments raised by the defendant,
a court may treat those arguments that the plaintiff failed to address as conceded.”). In the end,
no matter how Defendants slice it, Hudson’s discrimination claims do not clear the dismissal
hurdle.
D. Defamation
In Count IV, Hudson alleges that there are three bases for finding Defendants liable for
defamation. First, he maintains that Autrey made a defamatory remark when she informed Local
1923 members that Plaintiff was not a member in good standing. See Cor. Am. Compl., ¶¶ 105,
177. Hudson next alleges that AFGE “ratified” this defamation when the National President did
not “direct her to retract” her statement. Id., ¶ 178. Finally, Plaintiff says that AFGE defamed
him when it provided Labor “with a list of AFGE Local 1923 members in good standing” — a
list that did not include Hudson. Id., ¶ 179. Defendants, once again, mount a two-prong attack
on this count.
16
To start, they maintain that Plaintiff’s defamation count is preempted by the CSRA. See
AFGE MTD at 11; Local 1923 at 12–13. The Court agrees. Once it looks beyond the count’s
label, it is apparent that the substance of his claim again concerns the revocation of his Local
1923 membership — a purported unfair labor practice under the CSRA. See Cor. Am. Compl.,
¶ 175 (alleging that Autrey’s statement regarding Hudson’s loss of membership was false,
slanderous, and defamatory). For that reason, he cannot bypass that Act’s statutory scheme
simply by “labelling his claim as one for ‘defamation,’” as it “would [still] be subject to
preemption.” Wood, 255 F. Supp. 3d at 196.
Even if preemption does not apply here, Defendants contend that Hudson has not cleared
the pleading bar. To make out a defamation claim under D.C. law, a plaintiff must establish four
elements: “[1] a [false and] defamatory statement, [2] publication to a third party, [3] negligence,
and [4] either that the statement is actionable as a matter of law or that publication caused the
plaintiff special harm.” Westfahl v. Dist. of Columbia, 75 F. Supp. 3d 365, 375 (D.D.C. 2014)
(citing Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005)).
In Defendants’ view, the defamation count does not even make it out of the starting gate
because they never made an untruthful statement. See AFGE MTD at 22–24; Local MTD at 18–
21. More specifically, Defendants note that Hudson had indisputably failed to pay his dues and
therefore was not a member in good standing. See Moss v. Stockard, 580 A.2d 1011, 1022 (D.C.
Cir. 1990) (declaring that “truth is an absolute defense” to defamation claim); AFGE MTD at
23–24; Local MTD at 20; see also Cor. Am. Compl., ¶ 90 (quoting Autrey’s explanation for
revoking his membership). Plaintiff may have complained about the Local’s refusal to reinstate
him, but that does not mean that he was a member at the time the statements were made.
Hudson, in any event, takes a head-in-the-sand approach. Nowhere in his Opposition does he
17
provide any further support for his defamation count or address any of Defendants’ arguments on
this score, thus conceding the claim. Putting this all together, then, the Court will dismiss the
defamation count against Defendants.
E. LMRA
In Counts V, VI, and VII, Hudson states that Defendants violated Section 301 of the
LMRDA, citing 29 U.S.C. § 185(a). See Cor. Am. Compl., ¶¶ 186, 193, 201. Section 301 of the
LMRDA, however, is actually codified at 29 U.S.C. § 461 and is a provision about trusteeship.
Acknowledging his error, Plaintiff concedes that this section is immaterial to his Complaint. See
Sur-Reply at 11.
In an attempt to rescue his suit, he recently filed a Motion to Amend his Complaint to
assert a claim under Section 301 of the Labor Management Relations Act — i.e., the LMRA, not
the LMRDA. See ECF No. 99 (Pl. Second Mot. to File Third Amended Compl.) at 1. Hudson
says that he “inadvertently omitted” the citation to the correct statute in his “first and second
amended complaints.” Id. Under Federal Rule of Civil Procedure 15(a), “[l]eave to amend . . .
‘shall be freely given when justice so requires.’” Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996). That said, courts may deny a plaintiff’s motion if it is futile — that is, “if the
amended pleading would not survive a motion to dismiss.” In re Interbank Funding Corp. Secs.
Litig., 629 F.3d 213, 218 (D.C. Cir. 2010). That is the case here.
Some background may prove useful. Section 301 of the LMRA provides a federal cause
of action for suits alleging a “violation of contracts between an employer and a labor
organization representing employees . . . or between any such labor organizations.” 29 U.S.C.
§ 185(a). Here, Plaintiff maintains that Defendants violated this provision by failing to provide
him with “due process” before removing his membership and denying him the right to run for
18
office. See ECF No. 99-1 (Proposed Third Amended Compl.), ¶¶ 261, 281, 288–89. Hudson
also takes issue with Defendants’ decision not to include his name among the list of Local
members in good standing. Id., ¶ 262. All these acts, Hudson tells the Court, violated
Defendants’ constitutions along with AFGE’s “Dues Delinquency Policy.” Id., ¶¶ 262, 281.
Plaintiff’s LMRA claims hit several jurisdictional snags. First, as several courts,
including this one, have recognized, the LMRA, just like the LMRDA, does not apply to public-
sector unions. See, e.g., Pacific Mar. Ass’n v. Local 63, Int’l Longshoremen’s &
Warehousemen’s Union, 198 F.3d 1078, 1081 (9th Cir. 1999); Richards v. Ohio Civil Serv.
Emps. Assoc., 205 F. App’x 347, 354 (6th Cir. 2006); Hudson v. AFGE, 318 F. Supp. 3d 7, 14
(D.D.C. 2018); Bourdon, 813 F. Supp. 2d at 107 n.4 (collecting cases). The Court, accordingly,
has no jurisdiction over these LMRA claims against the Local.
In addition, the CSRA once again preempts these claims against both the Local and
AFGE. Plainly, Hudson’s LMRA counts (just like his others) hinge on the loss of his Local
membership and inability to run for office. See Bourdon, 813 F. Supp. 2d at 107 & n.4 (focusing
on substance of allegations); cf. Hudson, 318 F. Supp. 3d at 13–15 (jurisdiction existed where
underlying claim concerned plaintiff’s removal from national leadership position). As set out in
greater detail above, he can challenge these grievances within the CSRA’s framework. See 5
U.S.C. §§ 7105(a)(2)(G), 7116(c), 7120(a)(1), 7120(d). As a result, he cannot get around the
CSRA by disguising his claims as violations of the LMRA. See Bourdon, 813 F. Supp. 2d at
107 (ruling that plaintiffs “may not bypass the [Act]’s comprehensive statutory scheme by
framing [unfair-labor-practices] claims as violations of the LMRA”). These claims,
consequently, are fatally defective on jurisdictional grounds.
* * *
19
Last, this Court will dismiss the entirety of Hudson’s Complaint against Autrey in her
individual capacity, thus mooting any subsequent effort to serve her and thereby revive his claim.
For one, individuals cannot be liable under several of the statutes that Plaintiff invokes. See,
e.g., Carino v. Stefan, 376 F.3d 156, 159–60 (3d Cir. 2004) (explaining that officers in labor
unions cannot be held liable under Section 301 of LMRA in their individual capacities); Smith v.
Janey, 664 F. Supp. 2d 1, 8 (D.D.C. 2009) (“[T]here is no individual liability under Title VII
. . . .”). In any event, Hudson’s claims against Autrey are substantively indistinguishable from
those he brings against the Local. That is, they are either preempted by the CSRA or do not clear
the 12(b)(6) hurdle. As such, the claims against her fail as roundly as the rest.
IV. Conclusion
The Court, accordingly, will grant Defendants’ Motions to Dismiss. A separate Order so
stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 5, 2020
20
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870 F.Supp. 451 (1994)
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for the New Connecticut Bank and Trust Company, N.A.
v.
M.F.P. REALTY ASSOCIATES, Felix T. Charney, Michael R. Wachob, and P.L. Discala.
Civ. No. 5:91CV434(TFGD).
United States District Court, D. Connecticut.
December 14, 1994.
*452 Paul Gilmore, Edwards & Angell, Hartford, CT, for FDIC.
Michael McCabe, Depanfilis & Vallerie, Norwalk, CT, for P.L. Discala.
Dennis Anderson, Zeisler & Zeisler, Bridgeport, CT, for Felix Charney, MFP Realty Associates and Michael Wachob.
DALY, District Judge.
After careful review of the parties' submissions and objections, Magistrate Judge Eagan's Recommended Ruling is hereby AFFIRMED, APPROVED, and ADOPTED.
So ORDERED.
RECOMMENDED RULING ON MOTION FOR JUDGMENT OF STRICT FORECLOSURE AFTER DEFAULT (# 49)
EAGAN, United States Magistrate Judge.
I. Background
On or about January 16, 1992, the Court entered a default against M.F.P. Realty Associates *453 (hereinafter "MFP Realty") and all subsequent encumbrancers of property located at 10 Spruce Street in Fairfield, Connecticut. The plaintiff, the Federal Deposit Insurance Corporation, as Receiver for the New Connecticut Bank and Trust Company, N.A. (hereinafter the "FDIC"), has moved for the entry of a judgment of strict foreclosure against defendant-mortgagor, MFP Realty, and all remaining defendants who have an interest in the premises subsequent to the FDIC's interest.
As the moving party, the FDIC has the initial responsibility of informing the Court of the basis for its motion for summary judgment and of identifying those parts of the record it believes demonstrate the absence of a genuine issue of material fact. See Latimer v. Smithkline and French Laboratories, 919 F.2d 301, 303 (5th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Where, as here, a motion seeking summary disposition is supported by affidavits and other documentary evidence, the party opposing that motion must set forth specific facts showing that there is a genuine, material disputed issue. See King Service, Inc. v. Gulf Oil Corp., 834 F.2d 290, 295 (2d Cir.1987). Accordingly, on the issues they dispute, the defendants must come forward with enough evidence to support a verdict in their favor. They cannot defeat the FDIC's motion merely by presenting a metaphysical doubt, conjecture or surmise concerning the facts. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Only disputes over facts that might affect the outcome of the suit will properly preclude the entry of judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Upon review of the Stipulation of Facts filed January 12, 1994 by the FDIC, MFP Realty and Felix T. Charney, and all other submissions of the parties, the Court finds the following facts. See Local Rule 9(c).
On April 20, 1987, MFP Realty and The Connecticut Bank and Trust Company, N.A. ("CBT") executed a commercial mortgage note by which MFP Realty borrowed $520,000. To secure the note, MFP Realty mortgaged to CBT 10 Spruce Street. In addition, defendants Felix T. Charney, Michael R. Wachob and P.L. DiScala jointly and severally guaranteed MFP Realty's obligation.
On September 1, 1990, MFP Realty defaulted on its payment of the installment of principal and interest due. CBT declared the entire outstanding indebtedness due and payable on December 28, 1990.
On January 6, 1991, the Comptroller of the Currency determined that CBT was insolvent and appointed the FDIC as its receiver. Thereafter, a new national banking association, the New Connecticut Bank and Trust Company, N.A. (hereinafter "New CBT") was formed, and the FDIC assigned its assets to New CBT.
New CBT commenced this foreclosure action on or about May 24, 1991. However, on July 12, 1991, the Comptroller of the Currency appointed the FDIC as Receiver of the New CBT. In its capacity as receiver of New CBT, the FDIC succeeded to all New CBT's assets and liabilities, including those which are the subject of this suit.
According to the FDIC, for the period during which New CBT conducted banking operations, it adjusted the rate on the subject loan, based upon 3% over its periodically set prime rate. Similarly, following the dissolution of New CBT and the FDIC's appointment as receiver thereof, RECOLL Management Corporation, as the FDIC's attorney-in-fact, adjusted the rate on the subject loan, based upon 3% over the prime rate of Fleet Bank, N.A., the prime rate which the FDIC has adopted as the prime rate that governs variable rate loans for the FDIC as receiver of New CBT.
Based upon similar changes in Fleet Bank's prime rate, the FDIC has identified the following interest rates are applicable to the instant action: 10.5% from November 14, 1991 through December 24, 1991; 9.5% from December 24, 1991 through July 5, 1992; and 9% from July 6, 1992 to the present. The FDIC further claims entitlement to default interest in an addition amount of one percent over and above the variable rate otherwise applicable under the note. However, the *454 FDIC has not identified the interest rates applicable between the date of default and the date New CBT was placed in receivership.
Because the Court has entered defaults against the defendants, the remaining issues in this suit relate to the amount of the debt due. According to the FDIC's motion, the following represents that defendants' outstanding obligation as of January 12, 1994:
Principal $504,136.20
Past due note interest $165,160.16
Past due default interest $ 17,476.02
Past due late charges $ 8,788.77
Property taxes paid by FDIC $ 6,917.12
Attorneys fees $ 10,982.33
Environmental fees $ 1,908.00
Appraisal fees $ 9,500.00
__________________________________________
Total as of 1/12/94 $725,213.60
Note interest per diem $ 126.03
Default interest per diem $ 14.00
See FDIC's Motion for Judgment of Strict Foreclosure After Default (filed May 11, 1994) at 6. In addition, the FDIC has filed a Bill of Costs in which it seeks sheriff's fees in the amount of $328.20 and title search fees in the amount of $150.00.
By the instant motion, the FDIC seeks a judgment of strict foreclosure on 10 Spruce Street. The FDIC has submitted an appraisal which finds the premises to have a fair market value of $325,000 as of November 16, 1993. See Affidavit of Appraiser (filed December 1, 1993).
Defendants MFP Realty and Felix T. Charney admit the accuracy of the figures computed in the parties' stipulation. See Defendants' Memorandum in Opposition to Plaintiff's Claimed Indebtedness (filed May 11, 1994) (hereinafter "Memorandum in Opposition") at 6. Nevertheless, they specifically contest their actual liability on the following portions of the aforementioned calculations: appraisal fees; environmental fees; attorney's fees; late charges; and interest and default interest. See Notice of Intent to Contest Indebtedness (filed May 9, 1994).
II. Discussion
A. Propriety of Strict Foreclosure
In Connecticut, it is within the Court's discretion whether to order foreclosure by sale or strict foreclosure. See Conn.Gen.Stat. § 49-24. It is undisputed that the present value of 10 Spruce Street does not exceed the amount presently outstanding on the note. Absent any persuasive equitable arguments to the contrary, a strict foreclosure appears appropriate. Cf. Fidelity Trust Co. v. Irick, 206 Conn. 484, 538 A.2d 1027 (1988).
B. Appraisal Fees
The FDIC claims appraisal fees in the amount of $9,500. The parties' stipulation further specifies that these fees result from three appraisals: one dated August 27, 1990 costing $3,000, one dated August 23, 1991 costing $3,000 and one dated June 2, 1993 costing $3,500.
On its face, this request seems excessive. Moreover, the defendants claim that the FDIC is not entitled under the note or mortgage to appraisal fees, and the FDIC has failed to identify any provision in the note or mortgage instruments which authorizes its recovery of such fees. In general, the Court has no duty to search the record to establish the existence or non-existence of a genuine issue of material fact. Rather, it is the FDIC's burden to affirmatively show its entitlement to recovery. See, e.g., Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.1989); Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300 (5th Cir.1988). Accordingly, the FDIC's request for appraisal fees of $9,500 is disallowed without prejudice to renew if and when it makes an application for a deficiency judgment.
C. Environmental Fees
The FDIC also requests $1,908 in charges incurred for obtaining an environmental report and evaluation of the subject property. Again, the FDIC has failed to identify any contractual basis for its request. Accordingly, the FDIC's request for environmental fees of $1,908 is disallowed without prejudice to renew if and when it makes an application for a deficiency judgment.
*455 D. Attorneys Fees
The plaintiff has claimed attorneys fees of $10,982.33. While the defendants admit that the FDIC is entitled to recover legal fees reasonably incurred in this foreclosure, they point out that the FDIC has not presented complete documentation for all fees sought.
In this Circuit, "[a]ll applications for attorney's fees, whether submitted by profit-making or non-profit lawyers, for any work done after [June 15, 1983] should normally be disallowed unless accompanied by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done." New York Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir.1983). Having failed to supply appropriate documentation, the FDIC's request for attorneys fees is disallowed without prejudice to renew if and when it makes an application for a deficiency judgment.
E. Late Charges
The FDIC seeks 37 months in late charges from September 1, 1990 through October 29, 1993, for a total of $8,788.77. This Court has held that a plaintiff may not recover late charges once demand for payment has been made upon the defendants. See The Federal Home Loan Mortgage Corporation v. Cohen, Foster & DiRienzo Associates, Ruling On Plaintiff's Motion For Deficiency Judgment, Civil No. 5:92CV45(WWE) (D.Conn. April 19, 1994). The reason is that, while a note may provide for a lender to collect late charges when an installment is not received by a due date, those installments are no longer "due" after the lender has accelerated the note and made demand upon the borrower. Id.
Here, the defendants defaulted on September 1, 1990, and CBT accelerated the debt on December 28, 1990; accordingly, under the note, the defendants are only liable for four months of late charges. Dividing the FDIC's claimed charges of $8,788.77 by 37 months results in a claimed monthly late charge of $237.53. Accordingly, the FDIC is entitled to four months worth of late charges totalling $950.14.
F. Interest and Default Interest
The commercial mortgage note provides:
If the interest rate shall be variable (the "variable interest rate"), said variable rate shall be three (3) percentage points in excess of the rate of interest announced publicly by The Connecticut Bank and Trust Company, N.A., from time to time, as said Bank's "Prime Rate," on the first day of the new option period, the effective date of such interest change, which variable interest rate shall be adjusted on a daily basis thereafter as the Prime Rate shall change from time to time.
According to the parties' stipulation the major portion of the FDIC's interest calculations are based upon 3% above the prime rate of Fleet Bank. As of May 11, 1994, the FDIC claims interest due of $165,160.16 and default interest of $17,476.02, with claimed interest per diem of $126.03 and default interest per diem of $14.00.
The defendants do not challenge the accuracy of the FDIC's computations. Instead, the gravamen of the defendants' challenge to the FDIC's claim of entitlement to the interest is that, because the note bases the interest upon CBT's prime rate, interest under the note cannot be calculated for any period after the FDIC was appointed CBT's receiver. Consequently, the defendants conclude that "[t]his Court should find that the applicable interest rate is three (3%) percent above zero and the applicable default rate is one (1%) percent above that." Memorandum in Opposition at 21-22.
On its face, the conclusion urged by the defendants does not comport with the contractual expectations of the parties or with the applicable law. Generally, when interpreting any contract, a court must do its best to give effect to the intent of the parties as evidenced by the writings. See On Site Energy Corp. v. Sperry Rand Corp., 5 Conn. App. 326, 330, 498 A.2d 121 (1985). Here, while the parties may not have foreseen the demise of CBT, they clearly anticipated that the defendant-borrowers would be liable for an amount of interest in excess of 3%. To *456 accept the defendants' interpretation of this note would, in effect, require this Court to ignore its explicit provisions regarding the application of CBT's prime rate. Accord FDIC v. Cage, 810 F.Supp. 745, 747 (S.D.Miss.1993) ("It would be unreasonable to find that the obligors under a note would escape all interest in a circumstance such as this.")
Moreover, federal law, which now governs this action, supports the conclusion that the FDIC is empowered and entitled to establish an alternate prime rate. See, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711 (1979) ("This Court has consistently held that federal law governs questions involving the rights of the United States arising under nationwide federal programs."); Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1512-13 (D.C.Cir. 1993) (Federal law applies to claim of attorney-client privilege where RTC filed petition to enforce subpoena duces tecum issued to former law firm which had connections to failed thrift.) Under 12 U.S.C. § 1821(d)(2)(B)(ii), the FDIC, as receiver, assumes the ability to "perform all functions of the institution in the name of the institution which is consistent with the appointment as conservator or receiver...." In the instant case, one such right must necessarily include the right to establish a prime rate called for under the failed institution's note.
Accordingly, several courts which have considered the issue have approved the use of the prime rate of another bank when a note becomes the asset of the FDIC. See FDIC v. Condo Group Apartments, 812 F.Supp. 694, 699 (N.D.Tex.1992). Likewise, this Court already has found that the FDIC may substitute an appropriate interest rate to apply to a loan that is based upon the prime rate of a failed bank. See, e.g., FDIC v. 272 Post Road Associates, Recommended Ruling on Plaintiff's Motion for Summary Judgment of Strict Foreclosure, Civil No. 5:91CV433(TFGD) (D.Conn. March 11, 1994); accord FDIC v. Rogers Park I, 1990 WL 482141 (W.D.Okl.1990) (Under Restatement (2d) of Contracts § 204, when parties have not agreed with respect to an essential contract term, the Court may supply one which is reasonable under the circumstances.) Absent any argument that the applied Fleet Bank prime rate is unreasonable, the Court finds that the FDIC has appropriately applied a substituted interest rate.[1]
However, the defendants aptly note that the FDIC's submissions concerning interest accrued from September 1, 1990 through January 12, 1991 are insufficient in that the FDIC has not identified the prime interest rate for CBT or the New CBT was during that period. As this Court has observed, "[t]here is simply no authority to support the argument that the defendants cannot put the FDIC to its proof as to the appropriate interest rate under the notes." FDIC v. Armstrong Mall Associates Limited Partnership, 1992 WL 175518 at *4 (D.Conn. 1992). Because the parties' stipulation leaves the Court with no way to decipher the how the FDIC derives the various interest rates applied during the period prior to its receivership of New CBT, the request for note and default interest is disallowed without prejudice to renew the request if and when it makes a motion for deficiency judgment.
Conclusion
The FDIC's Motion for Judgment of Strict Foreclosure After Default is GRANTED. The Court finds that the sum of $512,481.66, which includes principal of $504,136.20, late charges of $950.14, property taxes of $6,917.12 and sheriff and title search fees of $478.20, is due the plaintiff on the debt as of January 1, 1994, with note interest accruing *457 at $126.03 per diem and default interest accruing at $14.00 per diem.
For the purposes of this Motion for Judgment of Strict Foreclosure After Default, the Court finds the value of this premises to be $325,000.
Notwithstanding the entry of the foregoing, this motion is granted without prejudice: (a) the plaintiff's right to renew its request for interest and other fees under the note and mortgage; and (b) to the defendants' right to raise any defense regarding the validity of the plaintiff's claim for a deficiency judgment and to contest any factual finds set forth herein which may be introduced by the plaintiff on such claim for a deficiency judgment, including but not limited to the value of the premises on the date of vesting in the plaintiff.
The FDIC is hereby directed to submit to the Court a proposed order of judgment forthwith.
Any objections to this report and recommendation must be filed with the Clerk of Courts within ten (10) days of the receipt of this recommended ruling. Failure to object to this report and recommendation within ten (10) days will preclude appellate review. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure; Rule 2 of the Local Rules for United States Magistrates; Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir.1989).
Dated at Hartford, Connecticut, this 3rd day of June, 1994.
NOTES
[1] In light of the ruling that the Fleet Bank prime rate is appropriate, the Court finds it unnecessary to address the FDIC's alternate argument that Conn.Gen.Stat. § 42a-3-112(b) also may supply an applicable substituted prime rate. The Court notes, however, that § 42a-3-112(b) only applies to negotiable instruments. In a similar context, one court has held that a note which contains an interest provision which can only be determined by referring to a prime rate renders the note nonnegotiable. See Johnson v. Johnson, 244 Ill.App.3d 518, 185 Ill.Dec. 214, 614 N.E.2d 348 (1993).
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269 Cal.App.2d 573 (1969)
THE PEOPLE, Plaintiff and Respondent,
v.
JOE BENNY HINSON, Defendant and Appellant.
Crim. No. 15536.
California Court of Appeals. Second Dist., Div. One.
Feb. 11, 1969.
Donald F. Roeschke, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for Respondent.
LILLIE, J.
Defendant was convicted of burglary ( 459, Pen. Code); he appeals from the judgment and order denying motion for new trial. The purported appeal from the order is dismissed.
On December 20, 1967, around 12 a.m. as Ann Bray drove by Eddie's Discount Store on Compton Boulevard, she noticed a man crouching near some broken glass facing the window; he was reaching into the window but she could not see his hand; as she drove by he looked up, then started to run westbound. No one else was in the area. Mrs. Bray proceeded eastbound, made a right- hand turn onto Tamarind Street, drove two blocks to Almond Street and turned right; there she saw a patrol car in which an officer was talking to a man who had on the same cap and coat and who she identified as the man she saw crouching in front of the broken window; she did not then stop as she feared the man would recognize her car, but drove back to Compton Boulevard where she *576 stopped the patrol car and reported what she had seen to Officer Smith.
Around 12:30 a.m. Officer Smith saw defendant run across a parking lot behind a taco stand at the corner of Palm and Willowbrook and followed him; defendant told him he had just left a bar and was running because the officer had frightened him and he was in a hurry to get home, and identified himself as Joe Benny Hinson living at the Pride Hotel at Tamarind and Laurel. Officer Smith let defendant go, then drove to Eddie's Discount Store to check the premises; he observed the broken window and a disarranged display of watch bands, walkie-talkies and transistor radios behind it. With his partner, Officer Kiyasu, the officer drove to the Pride Hotel, went to defendant's room, knocked and entered; Officer Kiyasu advised defendant of his constitutional rights; defendant said he understood those rights and expressed a willingness to make a statement regarding the burglary. Defendant said he had been in a bar at Magnolia and Willowbrook; as he was walking home he noticed the broken glass in the store, went over to the window and looked in; he saw someone drive by, became frightened and left. The officers searched his apartment with his consent but found nothing.
Between 12:15 and 1 a.m. on December 20, 1967, Officer Neidhart, in response to a call, went to Eddie's Discount Store; he found a broken window behind which was a display of jewelry, small radios and other items; on the sidewalk to the west of the store he found a Lucine brand watch, and another Lucine watch a little farther west in the doorway of another store; he searched west to the intersection of Tamarind but found nothing. Officer Kiyasu who was in the vicinity of Palm and Willowbrook around 1 a.m., found four watches, two of which were broken apart, near the corner a walkie- talkie, and behind the taco stand on the corner, two more watches; he tried to take the fingerprints from the walkie-talkie and watch but was unsuccessful. The watches were of the same brand and type as those in the window display at Eddie's Discount Store.
Eddie Cain, owner of Eddie's Discount Store, returned to the store at 4:30 a.m. and after an inventory of the merchandise in the display window estimated roughly 50 watches, several walkie-talkies (3" x 8"), 3 radio-phonographs (8" or 10" x 12") and two radios (8" x 10") were missing; he estimated the value of the watches to be under $1,000; he *577 identified the watches and walkie-talkies returned by Officer Smith as being similar to the items taken."
Defendant testified that he went to a restaurant on Compton Boulevard, left around 11:30 p.m. and went to a tavern on Magnolia Street where he had a bottle of beer and left at approximately midnight; as he was walking down Compton Boulevard he noticed broken glass from a store lying on the sidewalk and several watches and wheels on the ground; as he bent down to look at them a car passed and the lights from the car hit him; he ran westward away from the car; he did not have any of the items he saw on the ground under the broken display window in his possession when he started to run; he was stopped by an officer in a parking lot but did not tell him of the broken window because he did not want to get involved; he did not burglarize Eddie's Discount Store and did not see anyone else do so.
[1a] The sole issue is the sufficiency of the evidence to sustain the judgment. Appellant claims there is no evidence that he entered the premises, and that the facts belie the element of intent to commit theft. [2] The factual arguments advanced in support of these contentions are arguments to be made to the trial court and have no place in an appellate court. Appellant, in effect, requests us to reweigh and reinterpret the evidence in a manner consistent with his innocence of the crime of burglary. [3] But such a determination is the function of the trier of fact; at this stage the test is not whether the evidence may be reconciled with innocence, but whether there is substantial evidence in the record on appeal to warrant the inference of guilt drawn by the trier below. (People v. Hillery, 62 Cal.2d 692, 702-703 [44 Cal.Rptr. 30, 401 P.2d 382]; People v. Saterfield, 65 Cal.2d 752, 759 [56 Cal.Rptr. 338, 423 P.2d 266].)
[4] When a judgment is attacked on the ground that the evidence is insufficient to support it, we must view the evidence and the reasonable inferences therefrom in the light most favorable to the party prevailing in the trial court. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) [5] "Burglary may be proved by circumstantial evidence; it is not necessary that a witness actually see the defendant breaking and entering the premises or in the vicinity thereof (People v. Acosta, 114 Cal.App.2d 1 [249 P.2d 316]; People v. Flynn, 73 Cal. 511 [15 P. 102])."
[6a] "Although it is necessary for the People to show that a person charged with burglary entered the premises *578 with the requisite intent, such intent is rarely susceptible of direct proof, and must, therefore, ordinarily be inferred from the facts and circumstances disclosed by the evidence (People v. Franklin, 153 Cal.App.2d 795 [314 P.2d 983])." (People v. Nichols, 196 Cal.App.2d 223, 226-227 [16 Cal.Rptr. 328].) [1b] Here the evidence unquestionably established an unlawful and forcible entry of Eddie's Discount Store. From this alone burglarious intent could be reasonably and justifiably inferred. (People v. Michaels, 193 Cal.App.2d 194, 199 [13 Cal.Rptr. 900]; People v. Stewart, 113 Cal.App.2d 687, 689 [248 P.2d 768].) [6b] When the evidence is sufficient to justify a reasonable inference that such intent existed, the judgment will not be disturbed on appeal. (People v. Nichols, 196 Cal.App.2d 223, 227 [16 Cal.Rptr. 328].)
[7a] Further, appellant argues that Mrs. Bray "could not identify the person who was by the store as Hinson [defendant]," and that if one is bent on theft he will keep some of the items instead of dropping them in the area of the premises. [8] Identity is a question of fact for the trial court (People v. Smith, 223 Cal.App.2d 388, 393 [35 Cal.Rptr. 731]; People v. Daniels, 223 Cal.App.2d 441, 443 [35 Cal.Rptr. 890]; People v. Hornes, 168 Cal.App.2d 314, 319 [335 P.2d 756]) and any claimed weakness in the identification testimony is a matter of argument to the court below and cannot be effectively urged on appeal. (People v. Williams, 53 Cal.2d 299, 303 [1 Cal.Rptr. 321, 347 P.2d 665].) [7b] Ann Bray testified that she saw a man crouched in front of the broken window reaching into it; she identified this man as the one she saw a few minutes later talking to Officer Smith. The evidence shows that soon after Mrs. Bray saw the man run from the premises, Officer Smith, who was in the vicinity, observed him running across a parking lot, stopped him and in the ensuing conversation the man identified himself as the defendant. A short time later in the Pride Hotel defendant admitted to Officers Smith and Kiyasu, and in open court he testified, that he went over to the broken window and looked in, saw someone drive by, became frightened and left. Defendant by his own testimony placed himself on the premises of Eddie's Discount Store at the time Mrs. Bray testified she saw him reaching in the window. As for having no stolen goods in his possession, there no doubt were compelling reasons why defendant dropped the small items when he fled the premises, particularly when he realized that he had been observed. [9] In any event, it is not necessary that the *579 stolen property be found in the possession of defendant. (People v. Murphy, 173 Cal.App.2d 367, 373 [343 P.2d 273].) [7c] However, the path defendant took in fleeing the store was strewn with merchandise taken from the display behind the broken window; and supporting an inference of consciousness of guilt which constitutes an implied admission, is the established fact of his hasty departure upon being observed by Mrs. Bray and his conduct on leaving the premises. (People v. Brooks, 64 Cal.2d 130, 138 [48 Cal.Rptr. 879, 410 P.2d 383].)
The judgment is affirmed.
Wood, P. J., and Fourt, J., concurred.
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(?KA^ "^ PD-1537&1538&1539&1540&1541 -15
i, /* 2_// e: COURT OF CRIMINAL APPEALS
W-fA^/i^ y, J AUSTIN, TEXAS
Transmitted 12/21/2015 4:50:14 PM
eTT'^Zy^^^l^Rjt^^ 12/22/2015 7:51:33 AM
N o. PD-1537-15, PD-1538-15, PD-1530-15, PD-1540-15, PD-1541-15 ABEL A^?|J^
y/
l/ y/ ' y • J CLERK
TO THE COURT OF CRIMINAL APPEALS
FILED IN
COURT OF CRIMINALAPPEALS
From the First Court of Appeals
Nos. 01-14-00516-CR, 01-14-00517-CR, 01-14-00518-CR, December 22,2015
01-14-00519-CR, 01-14-00520-CR abelacosta, clerk
Hugo Pachas-Luna
On Appeal from Cause Numbers
1370904, 1370905, 1370906, 1370907, 1370908
vs. From the 230th District Court
Harris County, Texas
State of Texas
Appellant's Final Motion To Extend Time
To File Petition For Discretionary Review
For Five Days, Accompanied by PDR
To The HonorableJudges Of The Court Of Criminal Appeals:
Comes Now, Hugo Pachas-Luna, and files this his Final Motion to Extend Time to
File Petition for Discretionary Review, and in support thereof, would respectfully show
the Court the following:
I.
The First Court of Appeals affirmed the trial court's judgment of guilt on October 15,
2015. Appellant's PDR was due on December 16, 2015. One previous extension was
granted.
II.
In compliance with Texas Rule of Appellate Procedure 68.2(c), this motion for
extension is timely filed within 15 days of the deadline for the PDR, and is filed
contemporaneously with the PDR. Appellant requests this extension due to the fact
that counsel for Appellant has been engaged in work in the Harris County Public
Defender's Office on many cases. The appellate division of our office has been
operating with only six attorneys when we originally had ten, which has caused a
dramatically increased caseload. Counsel has filed 25 briefs for appellants so far this
year and is struggling to clear the courts' dockets. Counsel has most recentiy been
working on the following:
'Lenin Lope% 01-13-01079-CR, reversed and set for rehearing in cause #1403196
Ruben Totten, PD-0483-15 (PDR granted)
Hugo Pachas-Lunas, 01-14-00516-CR, etc.
Michael Davila, 01-15-00560-CR
Stephen Hopper, 14-15-00371-CR
Domingo Medina, 01-15-00575-CR
Kori Henegar, 14-15-00529-CR
Craig Beat, 01-12-00896-CR
Joseph Smith, 14-15-00625-CR
Emanuel Hayes, 1408364
Andrew Jackson, 01-15-00994-CR
Counsel has been researching and writing for several trial cases assigned to the
Public Defender's Office Trial Division.
III.
Appellant's attorney requests this brief extension which is necessary so that the petition
can be thoroughly written and timely filed. This motion is not made for the purpose of
delay.
PRAYER
Wherefore, Premises Considered, Appellant prays that this Honorable Court
grants this requested extension of time to file the appellant's petition for discretionary
review in the above cause and extend the time for filing for 5 days, to December 21,
2015 or the day on which the accompanied petition is deemed filed.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
Harris County, Texas
/s/Sarah V.Wood
Sarah V. Wood
Assistant Public Defender •
Harris County, Texas
Texas Bar Number 24048898
1201 Franklin, 13th Floor
Houston Texas 77002
713.368.0016 (phone)
713.368.9278 (fax)
[email protected]
Attorney for Appellant
Certificate of Service
By my signature below, I hereby certify that a true and correct copy of the above and foregoing
Appellant's Motion to Extend Time to File Petition for Discretionary Review has been served
on the District Attorney of Harris County, Texas, by electronic delivery through the efile
system.
/s/Sarah V. Wood
Sarah V. Wood
Attorney for Appellant
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308 F.3d 133
Fred AWON, Petitioner, Appellant,v.UNITED STATES, Respondent, Appellee.
No. 00-2129.
United States Court of Appeals, First Circuit.
Heard March 6, 2002.
Decided October 25, 2002.
COPYRIGHT MATERIAL OMITTED Robert A. George for appellant.
James Francis Lang, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.
Before LYNCH, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.
LEVIN H. CAMPBELL, Senior Circuit Judge.
1
The petitioner-appellant, Fred Awon ("Awon") was convicted of arson and mail fraud arising from the orchestration, on two occasions, of the arson of a building and the submission of insurance claims. Following conviction, Awon moved for a new trial and to vacate his sentence pursuant to 28 U.S.C. § 2255 (2000), citing newly discovered evidence and a lack of federal jurisdiction. The newly discovered evidence contained in five, allegedly exculpatory affidavits. The district court, after holding an evidentiary hearing, denied both motions and, upon Awon's request, issued a certificate of appealability under 28 U.S.C. § 2253(c). Finding no error, we affirm.
I. Background
2
Awon and his father owned rental income property located at 106-108 Ames Street (the "Ames Street property") in Brockton, Massachusetts, that consisted of unimproved rental space on the first floor and two apartments on the second floor. On September 16, 1994, the Brockton Fire Department extinguished a fire in the vacant first floor space before significant damage occurred. The Awons filed a claim with their insurance company for the damage from this fire and were paid in settlement $4,171 for the damage. In the early morning hours of January 18, 1995, another fire at the building resulted in the destruction not only of the Awon's building but of three adjacent buildings as well. The Awons again filed a claim with their insurance company and negotiated a settlement of $85,000 for the loss of the building and demolition expenses, and $6,176 for lost rental income.
3
Investigation of the two fires resulted in an eight count indictment charging Awon and two co-defendants, James St. Louis and Joaquim Neves ("Joaquim") with arson and mail fraud. In Counts I through IV, Awon and James St. Louis were charged with arson, in violation of 18 U.S.C. § 844(i) (2000) (Count I), mail fraud in violation of 18 U.S.C. § 1341 (Counts II and III), and use of a fire to commit a felony, in violation of 18 U.S.C. § 844(h) (Count IV). Those four counts related to the September 16, 1994, fire and the subsequent filing of an insurance claim. Awon, James St. Louis and Joaquim were charged in Counts V through VIII with four corresponding offenses, arson (Count V), mail fraud (Counts VI and VII) and use of fire to commit a felony (Count VIII). The latter four counts pertained to the January 18, 1995, fire and the filing of the second insurance claim. Prior to trial, Joaquim pleaded guilty to Counts V, VI, and VII (Count VIII was dismissed) and, pursuant to a cooperation agreement with the government, testified at trial as a witness against his two co-defendants, Awon and James St. Louis.
A. The Trial
4
Joaquim, testifying pursuant to a plea agreement, stated at trial that, in the summer of 1994, Anse St. Louis had asked him, purportedly on Awon's behalf, if he would burn the Ames Street property. Although initially hesitant, he agreed to commit the arson and solicited the help of James St. Louis. Joaquim further testified that he had several conversations directly with Awon about the arson and the promised pay-off. According to Joaquim's testimony, Awon agreed to pay him $5,000 for committing the arson. Just prior to the first fire, however, Joaquim was detained by the Immigration and Naturalization Service ("INS") which had begun deportation proceedings against him.
5
Jorge Neves ("Jorge"), Joaquim's brother, testified at trial that while Joaquim was in INS custody, James St. Louis sought Jorge's help to burn the Ames Street property. Jorge said that James St. Louis promised that they would be paid by Awon for the arson. Jorge testified, however, that he never spoke directly to Awon regarding the fire or payment. Jorge further testified that, on September 16, 1994, he and James St. Louis spread gasoline around the first floor of the building, ignited it, and fled in James St. Louis' car. The fire was quickly extinguished. Because "nothing happened," Jorge testified that he was never paid for the arson. As the result of his cooperation and testimony, Jorge was not prosecuted for his involvement in setting the September 16, 1994, fire.
6
Joaquim testified that, after his own release from INS custody in November, 1994, he was again approached by Anse St. Louis, on behalf of Awon, with the request that he burn the Ames Street property. Joaquim said he agreed and that he again solicited James St. Louis to help him. According to Joaquim, Joaquim was to receive a cash payment for his involvement while James St. Louis had directly negotiated with Awon for the receipt of a used Ford Taurus from Awon's car dealership. On January 18, 1995, Joaquim and James St. Louis drove to the Ames Street property in the car of Joaquim's girlfriend, Sandy Casamiro, and set the building on fire. The two men returned to Joaquim's house, placed their soiled clothes in a bag, awakened Casamiro, and had her drive them to a nearby dumpster to discard their clothing. Casamiro corroborated Joaquim's testimony about the late night excursion to discard the clothing worn at the time of the arson. The next day, according to the records of Awon's used car dealership, Awon transferred a Ford Taurus to James St. Louis for $2,000. Joaquim testified that, a week later, he received $2,100 in cash from Awon.
7
Testifying on behalf of Awon, Anse St. Louis said that he never spoke with Awon or Joaquim about the burning of the Ames Street property. Awon's parents testified that they were the owners and actual parties in interest with respect to the building and that Awon's involvement was limited to responding to maintenance requests and showing the building to prospective tenants. In essence, it was their testimony that Awon had no financial stake in the property. Awon testified that he believed that Joaquim had set the fire in retaliation for Awon's refusal to post bail for Joaquim when he was in INS custody and in reaction to an argument between the two men prior to the second fire.
8
The jury found Awon guilty of all counts. James St. Louis was acquitted of the first four counts, those related to the September 16, 1994, fire, and found guilty of the remaining four counts. Awon was sentenced to a 153-month term of imprisonment, which represented a downward departure from the applicable guideline sentencing range of 198 to 217 months. Awon was also ordered to pay restitution to the Scottsdale Insurance Company in the amount of $95,788.36. This court affirmed his conviction on February 2, 1998. United States v. Awon, 135 F.3d 96 (1st Cir.1998).
B. Post-conviction Proceedings
9
On February 1, 1999, pursuant to 28 U.S.C. § 2255, Awon filed a Motion to Set Aside, Vacate, or Correct Sentence and, in an essentially duplicative pleading, he filed a motion for a new trial. In the two motions, Awon pursued identical claims: (1) that newly-discovered evidence warranted a new trial; and (2) that with respect to Count V of the indictment the government's evidence at trial was insufficient to satisfy the federal jurisdictional element of 18 U.S.C. § 841(i) (2000).1
10
The newly-discovered evidence was set out in five affidavits. In their affidavits, Jorge Neves and Joaquim Neves recanted their trial testimony implicating Awon in the fires. Joaquim averred that he had falsified his testimony in the hopes of gaining favor with law enforcement officials and avoiding deportation. Jorge disavowed any statement he made on the stand implicating Awon and stated he had fingered Awon to avoid prosecution. James St. Louis, who did not testify at trial, averred that he was solely responsible for the planning of the second fire and that Awon played no part in the arson. Roberto Neves, the brother of Jorge and Joaquim Neves, stated that he and his family were threatened by the police that if Joaquim did not implicate Awon, their sister's children would be taken away and Roberto would be jailed. Roberto also reported that Joaquim had confessed to Roberto that he, Joaquim, had lied about Awon's involvement to "save himself" and receive a lower sentence. Roberto did not testify at trial. Finally, Awon submitted his own affidavit denying any involvement in the planning or execution of the fire and averring that James St. Louis had confessed to him that he and Joaquim had set the January 18, 1995, fire.
11
The district court held an evidentiary hearing on Awon's two motions. Through counsel, Joaquim notified the court that he withdrew his affidavit and recanted the statements he had made therein. Thereafter, at the hearing, the government called Joaquim to testify. During his testimony at the evidentiary hearing, Joaquim described a four and one-half hour meeting with Awon's attorney that only ended when Joaquim agreed to sign the hand-written affidavit compiled by Awon's attorney. Joaquim stated that Awon's attorney informed him that he would not submit the affidavit to the court until Joaquim had signed and returned a typed copy of the affidavit. When Joaquim received the typed copy he discarded it and assumed the matter was closed. He reported being "surprised" when he discovered that Awon's attorney had filed the handwritten copy. Awon himself did not testify at the hearing on his two motions nor did James St. Louis or Jorge testify concerning the facts they had averred in their affidavits. Roberto, having been deported, was unavailable to testify. Although Awon's attorney was available to testify,2 he did not take the stand to counter Joaquim's description of the events leading to the submission of Joaquim's affidavit. Awon presented no other testimony or documentary evidence to support his motions.
12
The government submitted an affidavit of Emanuel Gomes, the investigating officer from the Brockton Police Department. Gomes averred that he had neither threatened the Neves family nor had he made promises regarding Joaquim's or Jorge's cooperation in the investigation. In addition, the government submitted two reports compiled by Special Agent Thomas Wlodyka ("Wlodyka") of the Bureau of Alcohol, Tobacco and Firearms.3 Wlodyka had interviewed both Joaquim and Jorge following the submission of their affidavits in support of Awon's post-conviction motions. Wlodyka reported that the brothers recanted their affidavits. Jorge stated that Awon's attorney presented him with an affidavit to sign; that Awon's attorney told Jorge that the statement was "basically what you said at the trial;" and that he did not review it prior to signing it. Joaquim's statement to Wlodyka was consistent with his testimony at the evidentiary hearing. Both men informed Wlodyka their trial testimony was truthful.
13
Following the evidentiary hearing, the district court denied both motions. The court did not consider Roberto Neves's affidavit to be "newly discovered." According to the district court, the fact that defense counsel failed to interview Roberto Neves prior to trial did not support a finding that his testimony was unknown or unavailable. Further, it found that Jorge's affidavit did not support a new trial because the portion of his trial testimony recanted in the affidavit was not critical to the prosecution's case. Thus, even if it were omitted it was unlikely to result in a different outcome for Awon. As to James St. Louis' affidavit, which was viewed with "great skepticism," the court found it incredible on its face. The district court acknowledged that Joaquim's affidavit was the most supportive of a new trial. At trial, Joaquim had provided the most damning testimony against Awon. In the end, however, it found Joaquim's testimony at trial, and his testimony at the evidentiary hearing recanting his affidavit, credible. Finally, without discussion, the district court stated that it considered Awon's argument that the government's evidence was insufficient to meet the jurisdictional element of 18 U.S.C. § 841(i) "unpersuasive."
14
The district court's order denying the two motions was filed on July 10, 2000. Awon filed a notice of appeal on August 11, 2000. This court held the appeal in abeyance pending the issuance of a certificate of appealability for an appeal of the denial of a motion under 28 U.S.C. § 2255 as required by 28 U.S.C. § 2253(c)(2). On January 3, 2001, the district court ordered a certificate of appealability.
II. Discussion
A. Motion for a New Trial
15
Awon failed to file a timely appeal from the denial of his motion for a new trial. Consequently, that appeal must be dismissed. United States v. Rapoport, 159 F.3d 1, 2 (1st Cir.1998) (stating that compliance with time limits set forth in Fed.R.App.P. 4(b) is mandatory and jurisdictional).
16
The new trial motion, brought pursuant to Fed.R.Crim.P. 33, was denied on July 10, 2000, the day the district court also denied Awon's motion to vacate sentence, brought pursuant to 28 U.S.C. § 2255. Although Awon cited the same grounds for both motions, they are subject to different time limitations for the filing of a notice of appeal. Unless the district court grants an extension of time, which it did not do here, a party must appeal within ten days from the denial of a motion for a new trial made pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Fed.R.App.P. 4(b)(1)(A); United States v. Serrano, 870 F.2d 1, 11 (1st Cir.1989). Awon filed his notice of appeal well out of time, on August 11, 2000, thirty days after the court's order denying the new trial motion.
B. Motion to Vacate Sentence
17
The only appeal properly before us is from the denial of Awon's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The issues, as identified in the certificate of appealability, are whether to vacate Awon's sentence because of the alleged newly discovered evidence in the five affidavits and whether the district court lacked jurisdiction under the federal arson statute. Bui v. DiPaolo, 170 F.3d 232, 236 (1st Cir.1999), cert. denied, 529 U.S. 1086, 120 S.Ct. 1717, 146 L.Ed.2d 640 (2000).
18
On an appeal from the denial of a § 2255 motion, we review the district court's legal determinations de novo and the court's factual findings for clear error. Familia-Consoro v. United States, 160 F.3d 761, 764-65 (1st Cir.1998).
1. Newly Discovered Evidence
19
Awon contends that the purported newly discovered evidence establishes his actual innocence. Assuming arguendo that Awon's claims of actual innocence based on the evidence in question can establish some legally cognizable basis for a motion under section 2255, the evidence proffered by Awon falls far short of demonstrating his innocence.
20
We quickly eliminate Awon's and Roberto's affidavits because they do not meet the standard for "newly discovered evidence." United States v. Desir, 273 F.3d 39, 42 (1st Cir.2001). This court has held that a defendant seeking a new trial based on newly discovered evidence must prove four elements: (1) the newly discovered evidence was unknown or unavailable at the time of trial; (2) the defendant was duly diligent in trying to discover it; (3) the evidence was material; and (4) the evidence was such that it would probably result in an acquittal upon retrial. Id. Awon failed to prove that the information was either unknown or unavailable at the time of trial.
21
The "new" information in Awon's affidavit, James St. Louis's confession to Awon that he was solely responsible for the second fire, was plainly available at the time of trial. United States v. Levy-Cordero, 156 F.3d 244, 248 (1st Cir.1998). In the affidavit itself Awon asserts that on the day after that fire James St. Louis had confessed committing the arson to him. Why Awon did not reveal the confession at trial but instead suggested that Joaquim had set the second fire is best known to him. In any event, the concealed confession of his co-defendant cannot be deemed "newly discovered."
22
Roberto's testimony was also available at the time of trial. Awon argues that he had no reason to suspect that Roberto had information germane to his defense and thus cannot be penalized for failing to unearth and present Roberto's testimony. A defendant, however, must have been duly diligent in attempting to procure exculpatory evidence prior to trial. United States v. Conley, 249 F.3d 38, 44 (1st Cir.2001). Simply because it may not have occurred to Awon and his counsel that Roberto had information regarding the crime that does not mean they were duly diligent on the facts of this case. Roberto was known to Awon as the brother of Joaquim and Jorge, the government's primary witnesses, both of whom were implicated in the crime. Roberto and his sister, Helena Neves, were interviewed by the police during the investigation. Indeed, it was Helena Neves, who was dating James St. Louis, who contacted the police and informed them that St. Louis and Jorge were involved in the arson. Moreover, the credibility of Roberto's affidavit was severely undermined, insofar as it related to conversations with Joaquim, by Joaquim's later repudiation of his own affidavit and testimony at the evidentiary hearing. Similarly, Roberto's averments that he and his family were threatened by the police were neutralized by the affidavits of Detective Thomas Enos and Special Agent Thomas Wlodyka. Enos and Wlodyka, the officers primarily responsible for investigating the arson, denied that they had threatened Roberto, or his family, with adverse consequences if they did not implicate Awon.
23
On the other hand, James St. Louis's averments in his affidavit may indeed be deemed "newly discovered." United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir.1997) (concluding that, in the context of a Rule 33 motion, a co-defendant's post-trial willingness to testify may be "newly discovered" if he had invoked 5th Amendment privilege at trial). But like the district court, we view James St. Louis's affidavit as lacking in credibility for reasons apparent on its face and from the record. Id. The trial court described James St. Louis's affidavit as incredible on its face. St. Louis averred that he had conceived, planned, and committed the arson on his own based upon his unverified hope that Awon, who had complained about the Ames Street property, would "take care of" him in the future. He further stated that, although unemployed at the time and notoriously short on cash, he had paid Awon $2,000 for the car and paid Joaquim $2,100 for his part in the arson. By the time of his affidavit St. Louis had nothing to lose by exonerating Awon. He had already been convicted and sentenced. He was in a position to say whatever he thought might help Awon, "even to the point of pinning all the guilt on [himself], knowing [he was] safe" from any increased punishment for the transaction. United States v. Montilla-Rivera, 171 F.3d 37, 41 (1st Cir.1999) (quoting United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.1992)). We accept the court's finding that St. Louis's affidavit was not credible.
24
Finally, the affidavits of Jorge and Joaquim Neves were discredited by Joaquim's additional testimony at the evidentiary hearing repudiating his own affidavit as well as other considerations. A repudiated recantation is not substantive evidence, and can be used at a new trial only to cross-examine the witness. United States v. Glantz, 884 F.2d 1483, 1486 (1st Cir.1989). The affidavits alone cannot serve to establish Awon's innocence nor, given that they were later repudiated, are they a credible basis for expecting Jorge and Joaquim to testify differently at a new trial than previously.
25
The district court supportably found that Joaquim's testimony at the trial, and at the evidentiary hearing recanting his affidavit, was credible. As noted, we review the district court's factual determinations for clear error. Our deference is even greater where, as here, the factual findings are based on credibility determinations. United States v. Rostoff, 164 F.3d 63, 71 (1st Cir.1999). In such cases, "error is seldom considered `clear' unless the credibility assessments were based on testimony which was inherently implausible, internally inconsistent, or critically impeached." Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994). Joaquim's description of the events leading up to the submission of his affidavit was plausible and unrefuted. We find no error.
26
Respecting Jorge, the district court found that Jorge's recantation of his trial testimony, even if believed, would not result in Awon's acquittal.4 Jorge had testified at trial that James St. Louis had told him that Awon would pay them in cash if they burned down the Ames Street property. Jorge never spoke to Awon directly and because the first fire was unsuccessful Jorge never received payment. The district court concluded that Jorge's second hand account of Awon's involvement had a negligible impact on the outcome. The district court's conclusion is supported by the record. Jorge's testimony focused almost exclusively on James St. Louis's involvement in the first fire. His testimony implicated Awon only tangentially. Moreover, given that James St. Louis was acquitted of the charges related to the first fire, it is unclear if Jorge's testimony had any impact on the trial's outcome.
27
Awon's claim that his sentence should be vacated and the case remanded to the district court for a new trial is meritless.
2. Jurisdiction
28
Awon also argues that the district court erred when it refused to vacate his conviction for the second fire (Count V). According to Awon the government failed to adduce sufficient evidence to establish that the building was "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce" as required by the statute. 18 U.S.C. § 844(i). As a result, Awon contends, the district court lacked subject matter jurisdiction and his conviction as to Count V should be vacated.5
29
Before we can reach the merits of Awon's argument, we must first address the government's contention that Awon procedurally defaulted his claim by failing to raise it on direct appeal. Awon concedes that he did not appeal concerning the court's jurisdiction but claims that subject matter jurisdiction can be noticed at any time.
30
Contrary to Awon's assertion, this case does not involve subject matter jurisdiction and therefore had to be raised on direct appeal. The district court had subject matter jurisdiction in this case by virtue of the fact that Awon was charged with an offense against the United States. 18 U.S.C. § 3231.6 The interstate commerce aspect of this case arises as an element of the section 844(i) offense. The statute requires the government to prove, inter alia, that the property involved in the arson was "used in interstate or foreign commerce or in an activity affecting interstate or foreign commerce." If that element is not satisfied then Awon is not guilty; but the court is not by the failure of proof on that element deprived of judicial jurisdiction. See United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir.1996) (upholding section 844(i) as constitutional after Lopez); accord United States v. Tush, 287 F.3d 1294, 1296 (10th Cir.2002), petition for cert. filed (Aug. 12, 2002) (No. 02-5940) ("The interstate commerce element of § 844(i) `is not jurisdictional in the sense that it affects a court's subject matter jurisdiction, i.e., a court's constitutional or statutory power to adjudicate a case.'"); United States v. Carr, 271 F.3d 172, 178 (4th Cir.2001) (same); United States v. Beck, 250 F.3d 1163, 1165 (8th Cir.2001) (same).
31
Awon, on appeal, attempts to argue that his procedural default should be excused because he is "actually innocent" because the evidence was insufficient to show that the interstate commerce element had been met under Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).7 We reject Awon's actual innocence argument, which suffers from a number of problems. First, his petition under § 2255 makes no claim at all of actual innocence; the government, with justification, says the claim is forfeit. Even if it had not been forfeit, it is doomed. The assertion of actual innocence to excuse a procedural default does not permit a reviewing court to simply dive into defaulted questions of the sufficiency of evidence.
32
The actual innocence exception is quite narrow and seldom used. Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir.1999). It is reserved for the extraordinary cases of "fundamentally unjust incarceration." Schlup v. Delo, 513 U.S. 298, 320-21, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
33
Even if we hypothesized that this question was correctly characterized as one of factual innocence and not legal insufficiency, see Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), this had none of the hallmarks of the usual actual innocence claim. There is no credible argument that the so-called new evidence affects the interstate commerce nexus, so this is not a situation of an actual innocence claim predicated on new evidence. Schlup, 513 U.S. at 324, 115 S.Ct. 851. Nor is this a death case in which there is a constitutional violation which has probably resulted in the imposition of a death sentence of one who is actually innocent. Dugger v. Adams, 489 U.S. 401, 411 n. 6, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). And even if we were to consider the claim of insufficiency, it is frivolous under Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985) and United States v. Medeiros, 897 F.2d 13, 16 (1st Cir.1990).
III. Conclusion
34
For the reasons state above, the decision of the district court is affirmed.
Notes:
1
18 U.S.C. § 841(i) makes arson of a building "used in interstate or foreign commerce or in an activity affecting interstate or foreign commerce" a federal offense
2
Anticipating that he might testify, Awon's attorney had obtained separate counsel to represent Awon at the evidentiary hearing
3
It is unclear from the record whether the district court considered these unsworn reports in rendering its decision. Although the district court never explicitly ruled on the matter, the government acknowledges that the court was initially hesitant to do so
4
The district court did not refer to the two unsworn reports of Agent Wlodyka which had been submitted with the government's opposition to Awon's motions in which Wlodyka stated that Jorge had recanted his affidavit filed with Awon's motion
5
We note at the start that, even if Awon's assertion were meritorious, vacating his conviction on Count V would not affect his sentence. Awon received a total term of imprisonment of 153 months. For his conviction under Count V, the district court imposed a 33 month term of imprisonment to be served concurrently with the 33 month sentence he received for his conviction under Count I. Thus, vacating his conviction and sentence pursuant to Count V would not lower his current sentence. In addition, his conviction for mail fraud pursuant to 18 U.S.C. § 1341 (Counts VI, and VII) and his conviction for use of fire to commit a felony pursuant to 18 U.S.C. § 844(h)(1) and (2) (Count VIII) were not dependent upon his conviction of arson pursuant to 18 U.S.C. § 844(i). As a result, if his conviction under Count V is vacated, his conviction under the remaining counts and his subsequent sentence is unaffected. Thus, regardless of the outcome of our analysis, Awon's 153 month sentence will remain intact
6
18 U.S.C. § 3231 provides:
The district court of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.
7
We note that Awon had ample opportunity to address the sufficiency of the evidence regarding the building's connection with interstate commerce. In fact, prior to trial, Awon filed a motion to dismiss the arson counts arguing that the Ames Street property did not have a sufficient connection with interstate commerce as required by 18 U.S.C. § 844(i). In his pretrial motion he initiated a peremptory strike at the government's evidence. The district court denied the motion. The question of whether the property was used in interstate commerce was presented to the jury as an element of the offense. The district court instructed the jury that the government had to prove, beyond a reasonable doubt, that the property "was used in or affected interstate or foreign commerce" and defined those terms commensurate with the applicable case law. Awon did not appeal from the district court's denial of his motion to dismiss, neither did he object to nor appeal from the jury instructions nor appeal from his conviction under Count V. He only raised the issue again on February 1, 1999, when he filed his motion for a new trial and his motion pursuant to § 2255. In its decision denying these motions, the district court stated, without discussion, that Awon's argument concerning the jurisdiction of the court was "unconvincing."Awon v. United States, Civil Action No. 99-10207-GAO, slip op. at 7 n. 3 (D.Mass. July 1, 2000) (citing Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000)).
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712 F.2d 740
SHIPPERS NATIONAL FREIGHT CLAIM COUNCIL, INC., NationalSmall Shipments Traffic Conference, Inc., Drug andToilet Preparation Traffic Conference,Inc., Petitioners,v.INTERSTATE COMMERCE COMMISSION and United States of America,Respondents.American Trucking Associations, Inc., Intervening Respondent.
No. 182, Docket 80-4243.
United States Court of Appeals,Second Circuit.
Argued October 4, 1982.Decided June 13, 1983.
Daniel J. Sweeney, Washington, D.C. (William J. Augello, Augello, Pezold & Hirschmann, P.C., Huntington, N.Y., Steven J. Kalish, McCarthy, Sweeney & Harkaway, Washington, D.C., on brief), for petitioners.
Evelyn G. Kitay, I.C.C., Washington, D.C. (William F. Baxter, Asst. Atty. Gen., John J. Powers, III, Kenneth P. Kolson, Dept. of Justice, John Broadley, Gen. Counsel, Kathleen M. Dollar, Associate Gen. Counsel, I.C.C., Washington, D.C., on brief), for respondents.
Kenneth E. Siegel, Washington, D.C. (Nelson J. Cooney, Washington, D.C., on brief), for intervening respondent.
Before NEWMAN, KEARSE and PRATT, Circuit Judges.
KEARSE, Circuit Judge:
1
Petitioners Shippers National Freight Claim Council, Inc., National Small Shipments Traffic Conference, Inc., and Drug and Toilet Preparation Traffic Conference, Inc., which are national associations of shippers and receivers of goods who are concerned with the responsibilities of carriers of those goods, petition for judicial review of orders of the Interstate Commerce Commission ("ICC" or "Commission") dated May 13, August 5, and September 18, 1980, and March 17, 1982, interpreting the Interstate Commerce Act ("Act"), 49 U.S.C. § 10730 (Supp. III 1979 & Supp. IV 1980), to permit a motor carrier to limit its liability for loss of or damage to property it transports, by establishment of a rate setting a deductible amount.
2
We deny the petition.
I. BACKGROUND
A. Statutory Framework
3
The ability of most common carriers subject to the Act to limit their liability for loss of or damage to property transported by them is governed by 49 U.S.C. § 10730 (Supp. IV 1980).1 Until mid-1980, § 10730 and its predecessor section provided that a carrier could, if the Commission so authorized, establish transportation rates under which its liability for the property transported would be limited to an amount, reasonable under the circumstances, agreed to in writing between the carrier and the shipper.2 The arrangement releasing the carrier from a portion of its liability in exchange for a lower transportation rate is commonly referred to as a "released rate" or "released value rate." See New Procedures in Motor Carrier Restructuring Proceedings, 359 I.C.C. 399, 427-30 (1978) ("1978 Motor Carrier Restructuring Proceedings "). Prior to July 1980, § 10730 read, in pertinent part, as follows:
4
§ 10730. Rates and liability based on value
5
The Interstate Commerce Commission may require or authorize a carrier providing transportation or service subject to its jurisdiction under subchapter I, II, or IV of chapter 105 of this title [see note 1 supra ], to establish rates for transportation of property under which the liability of the carrier for that property is limited to a value established by written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation.
6
49 U.S.C. § 10730 (Supp. III 1979). This provision applied to all interstate common carriers of property, other than water carriers, and required that Commission approval be obtained before released rates could be established.
7
In 1980, § 10730 was amended by two statutes that provided relaxed regulatory requirements for the establishment of released rates by motor carriers of property other than household goods and rail carriers. First, in June 1980, Congress passed the Motor Carrier Act of 1980, Pub.L. No. 96-296, 94 Stat. 793 (July 1, 1980), which was designed to increase competition and to reduce regulation in the trucking industry. 126 Cong.Rec. S3592 (daily ed. Apr. 15, 1980) (remarks of Sen. Packwood, one of the bill's sponsors). Section 12 of the Motor Carrier Act, which became effective on July 1, 1980, divided § 10730 into two subsections. Subsection (a) consisted of the prior § 10730 but was made inapplicable to motor carriers of nonhousehold property. The new subsection (b) allowed a motor carrier of nonhousehold property to establish released rates without prior approval of the Commission, but provided that the Commission could require the carrier to have in effect full liability rates as well.
8
Second, in October 1980, Congress passed the Staggers Rail Act of 1980, Pub.L. No. 96-448, 94 Stat. 1895 (Oct. 14, 1980), which was designed to improve financial and operating conditions of the national rail system "through financial assistance and freedom from unnecessary regulation." H.R.Conf.Rep. No. 1430, 96th Cong., 2d Sess. 80 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 3978, 4110, 4111 ("Conference Report"). Sections 211(a) and (b) of the Staggers Act, which became effective on October 14, 1980, further amended 49 U.S.C. § 10730 by (1) making § 10730(a) inapplicable to rail carriers, and (2) adding a subsection (c) applicable to rail carriers, expressly mentioning that deductibles could be provided for in the released rates. Like § 10730(b) with respect to motor carriers of nonhousehold property, § 10730(c) allowed rail carriers to establish released rates without Commission approval; unlike § 10730(b), § 10730(c) did not specify that the released rate must be "reasonable under the circumstances" and did not give the Commission power to require that full liability rates also be maintained. Section 10730, as amended by the 1980 statutes,3 reads, in pertinent part, as follows:
9
(a) The Interstate Commerce Commission may require or authorize a carrier (including a motor common carrier of household goods but excluding any other motor common carrier of property and excluding any rail carrier) providing transportation or service subject to its jurisdiction under subchapter I, II, or IV of chapter 105 of this title, to establish rates for transportation of property under which the liability of the carrier for that property is limited to a value established by written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation....
10
(b)(1) Subject to the provisions of paragraph (2) of this subsection, a motor common carrier providing transportation or service subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title may, subject to the provisions of this chapter ... establish rates for the transportation of property (other than household goods) under which the liability of the carrier for such property is limited to a value established by written declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.
11
(2) Before a carrier may establish a rate for any service under paragraph (1) of this subsection, the Commission may require such carrier to have in effect and keep in effect, during any period such rate is in effect under such paragraph, a rate for such service which does not limit the liability of the carrier.
12
(c) A rail carrier providing transportation or service subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title may establish rates for transportation of property under which the liability of the carrier for such property is limited to a value established by written declaration of the shipper or by a written agreement between the shipper and the carrier, and may provide in such written declaration or agreement for specified amounts to be deducted from any claim against the carrier for loss or damage to the property or for delay in the transportation of such property.
13
B. Events Leading to the Present Petition for Review
14
In February 1980, Interstate International, Inc. ("Interstate"), a freight forwarder engaged in assembling, consolidating, and transporting shipments of property, applied to the ICC for authority to establish released rates on shipments of used household goods. According to the application, the proposed rates were to represent a "fundamental change" in the manner of computing released rates because the basis for calculating the carrier's maximum liability would be volume, instead of the usual referent of weight. In addition, the new rates were to establish three levels of service, each of which would be accompanied by a different level of carrier liability. Plan A, which provided, inter alia, the fastest and most certain delivery times, was to limit the carrier's liability to $12,000 per unit (400 cubic feet); Plan B, which provided lesser services, was to limit the carrier's liability to $4,000, less a $25 deductible, per unit; and Plan C, which provided the least amount of service, was to limit the carrier's liability to $1,600, less a $50 deductible, per unit. A shipper was to be able to purchase coverage in excess of the amounts specified by the plan chosen.
15
Notice of Interstate's application was published in the Federal Register, 45 Fed.Reg. 17,682 (1980), but the summary of the application emphasized Interstate's proposal to base released rates on volume and did not mention that two of its three released-rate plans contained deductibles. It appears that the application was unopposed, and on May 13, 1980, the Commission's Released Rates Board approved the application, finding that "the concept of a deductible ... is reasonable under the circumstances surrounding the transportation." Interstate International, Inc., Used Household Goods, No. FF-303, at 1 (I.C.C. May 13, 1980).
16
In June 1980, the petitioners, having learned the details of Interstate's application, petitioned for reconsideration by the ICC, on the principal grounds that under common law Interstate was liable for the full extent of loss or damage to property transported by it and that deductibles were not authorized by the Interstate Commerce Act. These petitions were denied on August 5, 1980, by three ICC Commissioners acting as an Appellate Division ("Division 1"), stating, in pertinent part, as follows:
17
The appropriateness of released rates on shipments of household goods has long been recognized by the Commission. Shippers are free to assess the relative merits of Interstate International's innovative method of rating vis-a-vis the competition in making their selection.
18
Petitioners attack the concept of a deductible as inappropriate mainly because it reduces a carrier's interest in the security of freight it transports. However, this is true of all released rates since their only purpose is to reduce a carrier's liability below the actual loss or damage sustained by a shipper. In return, of course, shippers receive the benefit of reduced rates. Consequently, we find that the sought authority to establish and maintain the involved rates has been justified.
19
Interstate International, Inc., Used Household Goods, No. FF-303 (I.C.C. Aug. 5, 1980) ("Division 1 Decision "). Petitioners' request for further administrative review of the Division 1 decision was denied on September 18, 1980, by the Commission, which found petitioners' arguments "unpersuasive." Interstate International, Inc., Used Household Goods, No. FF-303 (I.C.C. Sept. 18, 1980).
20
In December 1981, petitioners petitioned the ICC for a declaratory order that 49 U.S.C. § 10730, as amended through October 1980, did not permit deductibles by carriers other than railroads. They contended that the 1980 amendments, which expressly stated that rail carrier released rates could provide for deductibles, but were silent as to the use of deductibles by other types of carriers, demonstrated that deductibles could not be approved for nonrail carriers. The Commission rejected petitioners' contentions, stating, in part, as follows:
21
An express authorization contained in one section of a statute does not imply pervasive prohibitions in other sections. See American Trucking Association v. Atchison T. & S.F. R.R., 387 U.S. 397, 411 [87 S.Ct. 1608, 1616, 18 L.Ed.2d 847] (1967). Nor can a prohibition against deductibles be read into the language of Subsections 10730(a) and (b). Subsection (a) gives the Commission broad discretion to require or authorize household goods rates under which the carrier's liability is limited to a value established by written declaration of a shipper, when that value would be reasonable under the circumstances surrounding the transportation. Broad discretion is also given the Commission to determine what is reasonable in each circumstance. Discussing the released value provision of 49 U.S.C. 20(11), the predecessor of Section 10730, a court has held that "the Commission has discretion ... to authorize any form of released value provision, so long as it finds the rates that are based on that provision to be just and reasonable under the circumstances and conditions surrounding the transportation." National Motor Freight Traffic Ass'n, Inc. v. I.C.C., 590 F.2d 1180, 1185 (D.C.Cir.1978). Moreover, there is no legitimate reason to distinguish, as petitioners attempt, between released rates and deductibles. Both have similar effects on carrier liability, although each limits it in a somewhat different fashion.
22
Accordingly, we conclude that Section 10730(a) does not limit the kind of value limitation the Commission may approve. We also note that this reasoning is consistent with the policy of the Household Goods Transportation Act of 1980, which declares that maximum flexibility on the part of the carriers in the pricing of their services best serves the shippers of household goods and allows a variety of quality and price options to meet market demands. (See Section 2(a)(3).) The same reasoning applies equally to Section 10730(b). No ban against deductibles is supported by the statutory language of that section.
We find:
23
The statutory language of 49 U.S.C. 10730 permits deductibles for released rates by written declaration of the shipper or by written agreement between shippers and motor common carriers of household goods, between shippers and other motor common carriers, and between shippers and rail carriers.
24
Petition for Declaratory Order on Deductibles in Household Goods Released Rates, No. 38752, at 4-5 (I.C.C. Mar. 17, 1982).
25
Petitioners seek judicial review in this Court of the Commission's March 17, 1982 declaratory order and its 1980 released-rate orders, urging that the Commission's decisions be vacated and that § 10730 be interpreted to prohibit use of deductibles by nonrail carriers.4 For the reasons below we deny the petition.
II. DISCUSSION
26
Petitioners contend that the Commission's decisions should be set aside on the ground that the Commission has arbitrarily and irrationally ignored pertinent canons of statutory construction and has thereby interpreted § 10730 in a manner inconsistent with the intentions of Congress. In particular, petitioners challenge the Commission's authority to allow nonrail carriers to use deductibles on the grounds that (1) since statutes in derogation of the carrier's liabilities at common law should be narrowly construed and since common law prohibited deductibles, the silence of §§ 10730(a) and (b) should not be construed as permitting deductibles; and (2) by explicitly allowing in § 10730(c) the use of deductibles by rail carriers, Congress revealed its intention to deny use of deductibles to other carriers. We reject both arguments.
A. The Common Law Argument
27
Petitioners' first argument invokes the principle that statutes in derogation of common-law duties should be construed as altering those obligations only to the extent expressly provided. They contend that since common law did not permit deductibles, the silence of §§ 10730(a) and (b) with respect to deductibles may not be construed as permitting deductibles. We find this argument unpersuasive because we are not convinced that common law did indeed prohibit a carrier and a shipper from agreeing on a rate that included a deductible.
28
At common law, absent a contrary agreement between carrier and shipper, a carrier's liability for loss of or damage to goods entrusted to the carrier was virtually unlimited; unless the loss was caused by an act of God, a public authority, a public enemy, or the shipper, or was caused by the inherent vice or nature of the goods themselves, the carrier was liable for the full extent of the loss. See, e.g., Missouri Pacific Railroad v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 1144, 12 L.Ed.2d 194 (1964), and cases cited therein. Further, under common law, courts refused to enforce an agreement between carrier and shipper purporting to relieve the carrier from all liability for loss of property occasioned by the negligence of the carrier or its servants. See Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S.Ct. 148, 153, 57 L.Ed. 314 (1913). Such exculpatory contracts were held to violate public policy because they would tend to invite carelessness on the part of the carrier.
29
Nevertheless, common law did recognize as enforceable an agreement between carrier and shipper whereby the carrier's liability for loss of property, including loss occasioned by its own negligence or that of its servants, was not entirely eliminated but was merely limited, so long as the limitation was granted by the shipper in consideration for a lower rate of freight than would reasonably be charged for the carrier's unlimited liability. Hart v. Pennsylvania Railroad, 112 U.S. 331, 340, 5 S.Ct. 151, 155, 28 L.Ed. 717 (1884); see also Boston & Maine Railroad v. Piper, 246 U.S. 439, 444, 38 S.Ct. 354, 355, 62 L.Ed. 820 (1918); George N. Pierce Co. v. Wells, Fargo & Co., 236 U.S. 278, 284, 35 S.Ct. 351, 353, 59 L.Ed. 576 (1915); Adams Express Co. v. Croninger, supra, 226 U.S. at 509-10, 33 S.Ct. at 153. The rationale for enforcing contracts that limited the carrier's liability in such cases was that the carrier was entitled to know the extent of its potential liability for loss of the property and to be compensated in proportion to the risk assumed. Hence the contractual limitation on the carrier's liability was viewed not as the carrier's attempt to exonerate itself from losses negligently caused by it, but rather as the agreement of carrier and shipper in advance on the maximum compensation the shipper would recover should the property be lost or damaged, with the freight rate keyed to the size of the carrier's risk. As the Supreme Court explained in Hart v. Pennsylvania Railroad, supra:
30
The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practised on the shipper, should be upheld. There is no violation of public policy.
31
112 U.S. at 340-41, 5 S.Ct. at 155-56.
32
According to Hart, "the proper test to be applied to every limitation of the common-law liability of a carrier [is] its just and reasonable character." Id. at 342, 5 S.Ct. at 156. Accordingly, so long as the limitation of liability was the result of a "fair, open, just and reasonable agreement" between carrier and shipper, entered into by the shipper "for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of risk," Adams Express Co. v. Croninger, supra, 226 U.S. at 509-10, 33 S.Ct. at 153, and the shipper was given "the option of higher recovery upon paying a higher rate," Boston & Maine Railroad v. Piper, supra, 246 U.S. at 444, 38 S.Ct. at 355, the agreement was enforceable at common law.
33
Petitioners argue that these permissive common-law principles do not govern the instant proceeding because a deductible is in essence an exoneration from, rather than a limitation of, liability. The practical accuracy of petitioners' characterization will depend, of course, on the size of the deductible in relation to the intrinsic worth of the property. If the deductible is $50 and the property is worth that amount or less, the effect of choosing the deductible would be to exonerate the carrier from any liability for loss. If the property is worth more than the deductible amount, however, there is no qualitative difference between use of the deductible and use of the more common released rate establishing the shipper's maximum recovery. As the Commission recognized, the "only purpose [of either] is to reduce a carrier's liability below the actual loss or damage sustained by a shipper." Division 1 Decision, supra. Using a deductible, the shipper agrees to forgo recovery of the first X dollars of its loss, whereas under the more common released-rate agreement the shipper agrees to forgo recovery of the last Y dollars of its loss. Either formulation would permit the carrier to limit its liability. We are aware of no authority holding that an agreement for a deductible is unenforceable at common law, and if the agreement were fair and reasonable, were entered into by the shipper in order to gain a lower transportation charge, and the shipper had the option of paying a higher charge to obtain greater coverage, we see no basis for inferring that such an agreement would be unenforceable at common law. Indeed, since "the proper test to be applied to every limitation of the common-law liability of a carrier [is] its just and reasonable character," Hart v. Pennsylvania Railroad, supra, 112 U.S. at 342, 5 S.Ct. at 156 (emphasis added), even agreement on a deductible that exceeded the intrinsic worth of the property might have been enforced at common law if the shipper could thereby have obtained a low freight rate and had the option of paying a higher, reasonable, rate to avoid the deductible.5
34
In sum, we disagree with petitioners' premise that an agreement for a released rate including a deductible would necessarily have been unenforceable at common law. Accordingly, we do not view the Commission's authorization of the use of the deductible as a derogation of the common-law liability of the carrier.
B. The Statutory Construction Argument
35
Petitioners contend that the "plain meaning" of the explicit provision in § 10730(c) for use of deductibles by rail carriers is that Congress intended to prohibit use of deductibles by all other carriers. Mere incantation of the plain meaning rule, however, cannot substitute for meaningful analysis, New York State Commission on Cable Television v. FCC, 571 F.2d 95, 98 (2d Cir.), cert. denied, 439 U.S. 820, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978); see American Trucking Associations v. ICC, 656 F.2d 1115, 1120 (5th Cir.1981), and our analysis of the Interstate Commerce Act prior to 1980 and of the 1980 amendments persuades us that Congress did not intend to prohibit use of deductibles by nonrail carriers.
36
We commence our statutory inquiry with the Act as it was interpreted prior to the 1980 amendments, and we find in the history of the Act nothing to indicate that Congress intended at any time after 1916 to restrict carriers' ability to limit their liability through released rates. Although a restrictive intention had been manifested earlier,6 in 1916 Congress explicitly authorized the Commission to approve released rates. Congress did not at that time specify what form these limitations of liability might take, and it did not in the intervening years seek in any way to circumscribe the Commission's discretion to approve particular types of contractual limitations on the carrier's liability.
37
In these circumstances, both the Commission and the courts have construed the Commission's authority broadly, ruling that whether to permit or prohibit proffered types of limitations was a matter committed to Commission discretion. For example, in Rules, Regulations, and Practices of Regulated Carriers with Respect to the Processing of Loss and Damage Claims, 340 I.C.C. 515 (1972), the Commission stated as follows:
38
[T]he legislative history of section 20(11) [the predecessor of § 10730] shows that its adoption developed mainly as the result of the situation in which railroads published rates with extremely low released values with the practical result that shippers had a choice of rates in name only because the full actual value rates were too high to be used. In this respect, therefore, the Congress chose to leave it solely in our discretion whether to grant exceptions to the common law rule of full liability based upon the reasonableness and adequacy of a shipper's recovery for loss or damage to cargo in the light of a reduction in the freight charges.
39
Id. at 591 (emphasis added). Similarly, in National Motor Freight Traffic Association v. ICC, 590 F.2d 1180 (D.C.Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2822, 61 L.Ed.2d 275 (1979), the court of appeals affirmed a Commission order that approved a new form of released-rate agreement, noting that
40
the Commission has discretion under § 20(11) [the predecessor to § 10730] to authorize any form of released value provision, so long as it finds the rates that are based on that provision to be just and reasonable under the circumstances and conditions surrounding the transportation.
41
Id. at 1185 (footnote omitted). See also Household Goods Carriers' Bureau v. ICC, 584 F.2d 437, 441 (D.C.Cir.1978) ("We cannot substitute our judgment for that of the Commission in determining what exceptions to carrier liability beyond those at common law are dictated by the national transportation policy.").
42
While none of these decisions ruled on released rates that included deductibles,7 we agree with the Commission's analysis, see Division 1 Decision, supra, that there is no difference in principle between a deductible, which establishes a floor figure for the shipper's recovery, and an arrangement that sets a ceiling.8 Either is designed to reduce the carrier's liability below the shipper's actual loss, and we are aware of no authority, legislative, regulatory, or judicial, expressing the view that such a reduction may not be achieved through the use of deductibles.9
43
We conclude that Congress's decision to entrust the approval of transportation rates limiting carrier liability to the Commission without any statutory directive confining it to specific types of limited-liability arrangements left the Commission, prior to the 1980 amendments to § 10730, with authority to approve the use of deductibles in the event that a carrier proposed them and the Commission found them to be reasonable.
44
We do not view the 1980 amendments as having deprived the Commission of the authority to permit use of deductibles. As discussed in Part I.A. above, subsections (a) and (b) of § 10730 took substantially their present form with the passage of the Motor Carrier Act in June 1980. Nothing in the legislative history of the Motor Carrier Act suggests that Congress then intended to forbid use of deductibles as a method of limiting a carrier's liability. Indeed, the contrary is suggested. In furtherance of the Motor Carrier Act's general goal of increasing competition in the industry, see H.R.Rep. No. 1069, 96th Cong., 2d Sess. 3 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2285 ("Motor Carrier Act Report"), § 12 of the legislation, which modified § 10730, was specifically designed to "foster more competition in the pricing of transportation service," id. at 26, reprinted in 1980 U.S.Code Cong. & Ad.News at 2308. It was envisioned that the availability of a variety of released rates would enhance price competition and reduce the rates a shipper would pay.10 The variety was likened to greater and lesser amounts of insurance coverage, with the shipper to have the option to forgo coverage entirely, as it might wish to do for property of low value, in order to obtain a lower freight rate. The Motor Carrier Act Report described the thrust of § 12 as follows:
45
Permitting released value rates increases the range of choices available to the shipping public. With a full value rate, a shipper pays one price for two distinct services which are tied together, the actual linehaul of a commodity from one point to another and full insurance on the commodity on that movement. Released rates, in effect, allow the shipper to pay a lesser price for hauling the goods and a separate agreed-upon price for whatever amount of insurance the shipper desires. Consequently, if the commodities are of low value or if the shipper wants to take the risk, the shipper may want only partial insurance or none at all. Having this option should reduce the total price the shipper must pay for the transportation.
46
Id. at 25-26 (emphasis added), reprinted in U.S.Code Cong. & Ad.News at 2307-08.
47
Thus, while the crux of petitioners' complaint is that the practical effect of a deductible for property of low value is to deprive the shipper of any recovery, this appears to be precisely one of the options Congress sought, in the Motor Carrier Act, to have available.
48
Nor do we view Congress's passage of the Staggers Rail Act several months later, with its express recognition that rail carriers could use deductibles, as reason to believe that Congress intended--either when it passed the Motor Carrier Act or when it passed the Staggers Act--to deny deductibles to nonrail carriers. There is nothing to suggest that in passing the railroad legislation Congress believed it was taking away an existing option from nonrail carriers. And there is no indication that either house of Congress conceived of deductibles as a newly available option. Indeed there is some reason to believe that they considered deductibles already authorized.
49
The original Senate version of the railroad legislation, S. 1946, 96th Cong., 1st Sess. (1979), approved by the Senate on April 1, 1980, would have amended § 10730 to permit railroads to establish released rates without Commission supervision and without reference to the "just and reasonable under the circumstances" test. The released-rate language used in S. 1946, i.e.,
50
establish rates for the transportation of property under which the liability of the carrier for such property is limited to a value established by written declaration of the shipper or by written agreement between the carrier and the shipper,
51
was virtually identical to the language of § 10730 as it then existed. Deductibles were not explicitly mentioned, but at least one witness before the Senate Committee that held hearings on S. 1946 in 1979 had expressed the view that the released rates could include deductibles: "We assume that, in permitting liability to be limited 'to a value established' by agreement, the provision permits the parties to agree to deductibles since that is a common insurance practice." 1 Railroad Transportation Policy Act of 1979: Hearings on S. 1946 Before the Senate Comm. on Commerce, Science, and Transportation, 96th Cong., 1st Sess. 603 (1980) (supplemental statement of William H. Dempsey, President of the Association of American Railroads).
52
The origin of the express reference to deductibles was the House of Representatives version of the railroad legislation, H.R. 7235, 96th Cong., 2d Sess. (1980), first approved by the House on September 9, 1980, which proposed the same relaxations with respect to released rates as appeared in S. 1946, but also specified that the released rates could include a deductible. In the Senate, when the two versions of the railroad legislation, which differed in many other respects as well, were about to be sent to conference, there was discussion of some of the other differences between the two bills, 126 Cong.Rec. S12,915-16 (daily ed. Sept. 18, 1980), but the reference in H.R. 7235 to deductibles occasioned no comment. It is a permissible inference that the Senate viewed the difference as one of form, and had agreed with the view that deductibles were implicitly permitted by S. 1946, and hence by § 10730 as it then existed.
53
The Conference Committee eventually recommended adoption of H.R. 7235's treatment of released rates, Conference Report, supra, at 102-03, reprinted in 1980 U.S.Code Cong. & Ad.News at 4134-35, and this was the version that eventually was approved by both houses of Congress. We find no suggestion, however, that Congress believed that adoption of the House language mentioning deductibles constituted a change in the law.11 The Conference Report described the released rate provision as follows:
54
To provide both shippers and railroads with greater rate-service options the Act permits the establishment of lesser liability requirements than presently assured by law.
55
Conference Report, supra, at 82, reprinted in 1980 U.S.Code Cong. & Ad.News at 4113. The use of deductibles was indeed not "assured" under prior law, because all released rates were subject to Commission approval, and the ICC had been reluctant to approve any type of released rates for railroads even when there was no opposition.12 See S.Rep. No. 470, 96th Cong., 1st Sess. 32 (1979). But if Congress had viewed deductibles as a form of limitation of liability that the Commission could not have authorized, we would have expected the Conference Report to mention deductibles as a feature not then "available" under the law, rather than simply not "assured."
56
Finally, nowhere in the legislative history do we find any indication that Congress believed it was denying deductibles to carriers other than railroads. So far as we have been able to determine, in discussing the Motor Carrier Act the legislators never discussed released rates for railroads; and in discussing the railroad legislation they never discussed the released-rate structure for motor carriers. Given the absence of any cross-discussion, it hardly seems reasonable to make the "vast leap," urged by petitioners, from the "particular authorization" of deductibles for railroads to "a pervasive prohibition" for nonrail carriers. American Trucking Associations v. Atchison, Topeka & Santa Fe Railway, 387 U.S. 397, 411, 87 S.Ct. 1608, 1616, 18 L.Ed.2d 847 (1967).
57
The petition for review is denied.
58
GEORGE C. PRATT, Circuit Judge, dissenting.
59
My colleagues find no difference "in principle" between a deductible and a released value, and thus conclude that since 1916 Congress has intended a deductible to be a permissible released value limitation under 49 U.S.C. § 10730. As a result they have permitted carriers of household goods, despite contrary statutory language, to disclaim liability for loss, theft, or damage to a householder's property up to the deductible amount. Since I cannot accept their analysis of § 10730, their premise that a deductible is a released value, or the "license to steal" that they grant to carriers of household goods, I dissent.
I.
60
The issue before us is not whether a deductible should be permitted as a means of limiting carriers' liability--a decision for Congress and not this court--but rather, whether Congress has authorized deductibles for carriers of used household goods in 49 U.S.C. § 10730(a). My colleagues perceive a continuous congressional intent to authorize deductibles that began in 1916. They discern this intent despite a contradictory statutory history that led to the 1916 amendment, despite emphatic statutory language to the contrary, despite the structure and language of the current statute, and despite the absence of any showing that anyone had ever, prior to 1980, advanced the idea of using deductibles in the context of carriers' liability.
61
I can find nothing in Congress's language up to 1916 to suggest anything but disapproval of a deductible or any form of limitation of liability that would exempt the carrier from responsibility for the initial dollars of every loss or damage to the shipper's property. If, as my colleagues believe, Congress in 1916 intended to authorize a deductible, it chose strange language indeed to express that intent.
62
In the relevant portions of the 1916 statute, set forth in the margin,* Congress expressed its basic disapproval of limitations on a carrier's liability: "any such limitation" regardless of form was declared "to be unlawful and void". As an exception to this blanket prohibition, Congress permitted rates that included carefully defined released values as long as they would "have no other effect than to limit liability and recovery to an amount not exceeding the value" declared by the shipper or agreed by the parties to be the "released value" of the goods. This language is precise and readily includes released values. Only by extreme, and in my view unjustified, generalization can it fairly be said to include deductibles.
63
In relevant part the statute remained in its 1916 form until 1978 when Congress enacted Public Law No. 95-473, entitled "An Act To revise, codify, and enact without substantive change the Interstate Commerce Act and related laws subtitle IV of title 49, United States Code, 'Transportation' ". 92 Stat. 1337. This 1978 act was merely a recodification of the prior statutes included in the Interstate Commerce Act. Congress expressly negated any intention to change prior law:
64
Sections 1 and 2 of this Act restate, without substantive change, laws enacted before May 16, 1978, that were replaced by those sections. Those sections may not be construed as making a substantive change in the laws replaced.
65
Pub.L. No. 95-473, § 3, 92 Stat. 1337, 1466 (1978).
66
To replace and restate the elaborate 1916 prohibition against agreements limiting carriers' liability, Congress provided in § 10730 that the Commission may require or authorize a carrier
67
* * * to establish rates for transportation of property under which the liability of the carrier for that property is limited to a value established by written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation (emphasis added).
68
49 U.S.C. § 10730(a).
69
By Congress's command, this language of § 10730 "may not be construed as making a substantive change" in the prior law, which had expressly declared any limitation of liability to be unlawful and void except an agreement limiting liability and recovery "to an amount not exceeding the [declared or released] value." Thus, Congress in 1978 continued to authorize limitations of liability, but only in terms of an established value of the goods. Since deductibles have nothing to do with the value of the goods, it follows that Congress did not intend in 1978 to permit deductibles.
70
Furthermore, one would think that if Congress had perceived its intent in 1978 as the majority perceives it now--to permit deductibles as well as released values--Congress would have expressed that intent specifically, just as it did two years later. In 1980 Congress passed three amendments substantially revising the Interstate Commerce Act, one of which did specifically authorize deductibles for railroads. When read together, these three amendments simply and directly confirm that Congress did not intend to authorize deductibles in the transportation of household goods, the specific issue now before the court.
71
Prior to 1980 Congress had applied the same statute, § 10730, to various types of carriers, including railroads, motor carriers of household goods, and other motor carriers. All three of these carriers (1) needed advance approval of their rates, (2) were permitted to offer rates under which the carrier's liability was "limited to a value" established by declaration or agreement, and (3) were required to establish limiting values that were "reasonable under the circumstances surrounding the transportation." 49 U.S.C. § 10730 (Supp. II 1978). The 1980 amendments divided § 10730 into three subsections, one for each of these carriers, and treated each carrier differently with respect to these three requirements.
72
The "Staggers Rail Act," Pub.L. No. 96-448, 94 Stat. 1895, passed October 1, 1980, no longer required railroads either to have their rates approved in advance, or to establish released values that were reasonable. Railroads were specifically authorized to use deductibles, which were described as "specified amounts to be deducted from any claim against the carrier for loss or damage to the property or for delay in the transportation of such property." Pub.L. No. 96-448, 94 Stat. 1911; 49 U.S.C. § 10730(c) (Supp. IV 1980).
73
The "Motor Carrier Act of 1980," Pub.L. No. 96-296, 94 Stat. 793, passed June 20, 1980, released motor carriers of other than household goods, like the railroads, from the requirement of advance approval of rates. Congress continued the authorization for released value rates and the requirement that their declared or agreed values be reasonable. Unlike the railroads, these carriers were not expressly authorized to use deductibles. 49 U.S.C. § 10730(b) (Supp. IV 1980).
74
In the "Household Goods Transportation Act of 1980", Pub.L. No. 96-454, 94 Stat. 2011, passed September 30, 1980, Congress was significantly more restrictive with carriers of household goods than it was with the other carriers. Unlike the railroads and other motor carriers, it continued to require advance approval of rates by the commission. Unlike the Staggers Act and the Motor Carrier Act, the Household Goods Transportation Act continued to require advance approval of rates by the commission. Unlike the Staggers Act, it required that the released values be reasonable, and did not expressly authorize deductibles. 49 U.S.C. § 10730(a) (Supp. IV 1980).
75
My colleagues' interpretation of the amended § 10730, insofar as they find deductibles included in the released value provisions, distorts the plain language of the statute and renders the deductible provision in subsection (c) surplusage, thereby violating the elementary canon of construction that courts must give effect to every word in a statute. Bird v. United States, 187 U.S. 118, 124, 23 S.Ct. 42, 44, 47 L.Ed. 100 (1902); Platt v. Union Pacific R.R. Co., 99 U.S. 48, 58, 25 L.Ed. 424 (1878). It also frustrates some of the policy aims Congress sought to achieve in the 1980 amendments.
76
If, as the majority holds, the commission is now properly exercising some latent authority to approve deductible limitations for carriers of household goods covered by subsection (a), it would seem to follow from the identical language in the Motor Carrier Act, codified at 49 U.S.C. § 10730(b), and taken from the same source in the 1916 statute, that Congress must also have intended to permit the other motor carriers to offer rates including a deductible, without first obtaining commission approval. Indeed, the commission has so held. See Decision on Petition for Declaratory Order on Deductibles in Household Goods Released Rates, No. 38752, at 4-5 (I.C.C. Mar. 17, 1982). However, the Motor Carrier Act itself suggests just the opposite, because it restricts sharply any attempt by the commission to deregulate the trucking industry in defiance of the statute. In section 3 of the Act, Congress specifically admonished that
77
* * * the Interstate Commerce Commission should be given explicit direction for regulation of the motor carrier industry and well-defined parameters within which it may act pursuant to congressional policy; that the Interstate Commerce Commission should not attempt to go beyond the powers invested in it by the Interstate Commerce Act and other legislation enacted by Congress; and that the legislative and resulting changes should be implemented with the least amount of disruption to the transportation system consistent with the scope of the reforms enacted.
78
Pub.L. No. 96-296, 94 Stat. 793 (1980). The house report to the Motor Carrier Act cautioned the commission "to stay within the powers specifically vested in it by the revised law." H.R.Rep. 1069, 96th Cong., 2d Sess. 11 (1980) reprinted in 1980, U.S.Code Cong. & Ad.News 2283, 2293.
79
Despite this rather clear language, the majority reasons that prior to 1980, Congress "entrust[ed] the approval of transportation rates to the Commission without any statutory directive," and finds nothing in the 1980 amendments "as having deprived the Commission of the authority to permit the use of deductibles." Such a permissive, broad reading of § 10730 seems inconsistent with the narrow interpretation both enacted and urged by Congress, and it substantially undermines Congress's attempts to rein in the commission.
80
Even were I to disregard Congress's strong historical leanings toward prohibiting limitations of carriers' liability, the language that Congress used in 1980 to restructure these three branches of the industry would still convey to me an intention that rail carriers should have deductibles, but motor carriers should not. And when I read these amendments in light of Congress's earlier hostility to limitations of liability, this intention becomes inescapably clear.
II.
81
Central to my disagreement with the majority is their premise that deductibles do not differ from released value limitations. The majority artfully defines the released value provision in subsection (a) of § 10730 to include both released value limitations and deductibles, and therefore can logically conclude that § 10730(a) permits the commission to approve rates with a deductible limitation. However, the term "released value" has a specific and narrower meaning, which in light of prior case law and common sense cannot fairly be read to include a deductible.
82
As my colleagues acknowledge, the common law considered void, as against public policy, any agreement or limitation that insulated a carrier from liability for its own negligence or for the willful acts of its employees. And I acknowledge that the common law recognized an exception for agreements, known as released value limitations, whereby "the carrier's liability for loss of property, including loss occasioned by its own negligence or that of its servants, was not entirely eliminated but was merely limited," at p. 746, to a stated value in consideration for a lower rate. See Adams Express Co. v. Croninger, 226 U.S. 491, 512, 33 S.Ct. 148, 154, 57 L.Ed. 314 (1913). We disagree over whether a deductible is the same as a released value.
83
They are not the same, and the differences are significant. When liability is limited to a released value, the carrier is fully liable for all loss or damage up to the agreed or declared value of the shipment; when a loss occurs the shipper is estopped from asserting that the value of the shipped goods exceeded what he had declared in advance. As the Supreme Court noted in Adams Express, supra,
84
It is not in any proper sense a contract exempting him from liability for the loss, damage, or injury to the property, as the shipper describes it in stating its value for the purpose of determining for what the carrier shall be accountable upon his undertaking, and what price the shipper shall pay for the service and for the risk of loss which the carrier assumed.
85
Adams Express Co. v. Croninger, supra at 512, 33 S.Ct. at 154, quoting Bernard v. Adams Express Co., 205 Mass. 254, 259, 91 N.E. 325, 327 (1910). The common law's intolerance of agreements exonerating carriers for their own negligence or misconduct was thus relaxed in recognition of the obvious fact that the cost of transporting goods was inextricably bound to the risks that carriers must assume for their damage or loss. By fixing a maximum value in advance, the carrier could know what degree of care was required, and the shipper was assured of recovery of his losses up to the amount declared.
86
A deductible has a different effect, because it exonerates the carrier from all liability up to the deductible amount. A deductible does not discourage carrier negligence or theft: it imposes no liability on the carrier for many losses and excuses at least part of every loss. In contrast, a limitation based on a released value encourages care because it imposes some liability on the carrier for every loss. Thus, it is simply not accurate to say there is no difference "in principle" between a deductible and a released value limitation.
87
In Hart v. Pennsylvania R.R. Co., 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717 (1884), which the majority quotes approvingly, at p. 746, the Supreme Court carefully analyzed why a released value did not contravene the common law prohibition against limitations on a carrier's liability, (at p. 746).
88
The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value.
89
Hart v. Pennsylvania R.R. Co., 112 U.S. at 340-41, 5 S.Ct. at 155-56.
90
The majority interprets this analysis of released value limitations to authorize deductibles because there is no "qualitative" difference between them "in principle". However, the following sentence-by-sentence breakdown of the Supreme Court's analysis demonstrates that a deductible is not the same as a released value, "in principle" or otherwise:
91
Released Value Deductible
(As described in Hart, 112
U.S. at 340-41 [5 S.Ct. at
155-56].)
"The limitation as to value has A deductible is designed to
no tendency to exempt from exempt from liability for
liability for negligence." negligence."
"It does not induce want of A deductible does induce want
care." of care and even petty theft.
"It exacts from the carrier the A deductible exacts from the
measure of care due to the carrier no care up to the
value agreed on." deductible amount.
"The carrier is bound to Below the deductible value the
respond to that value for carrier is exempt from its
negligence." negligence.
"The compensation for carriage The compensation for carriage
is based on that value." is not directly related to the
amount of a deductible.
"The shipper is estopped from A deductible is unrelated to the
saying that the value is greater. value of the articles.
The articles have no greater
value, for the purposes of the
contract of transportation,
between the parties to that
contract."
"The carrier must respond for The carrier is exempt from
negligence up to that value." liability up to the deductible
amount.
92
In short, because of the fundamental differences between them, deductibles cannot be permitted as simply another form of released value.
III.
93
By enacting the Household Goods Act of 1980--which the majority has not mentioned, even though this case involves carriers of household goods--Congress demonstrated its concern for the problems faced by the relatively unsophisticated shipper of household goods. As noted by the house committee:
94
[T]hese shippers usually move only once or twice in their lives and, consequently, lack thorough understanding of the industry and sufficient clout to negotiate with it. Their situation is made more vulnerable by the fact that the moves involve all of their personal possessions, which often are of a fragile nature.
95
H.Rep. No. 96-1372, reprinted in 1980 U.S.Code Cong. & Ad.News 4271, 4272. The committee further noted, that the household goods moving industry "is the single most frequent subject of consumer complaints to the Interstate Commerce Commission," id., and that approximately half of those complaints relate to the loss or damage of goods--precisely the area where a deductible has its primary impact. In order better to protect consumer shippers of household goods, Congress authorized several new devices, including written binding estimates of charges, guaranteed pick-up and delivery times backed by penalties or per diem payments for delay, as well as provisions for informal dispute settlement programs to be established by carriers of household goods for the purpose of resolving shipper disputes in a fair, expeditious, and inexpensive manner. The amendment also restructured the penalty provisions of the act relating to the transportation of household goods in order to "place new emphasis on the need for carriers to minimize shipper harm and to encourage compensation when harm does occur." Id. at 4285.
96
Thus, Congress demonstrated in 1980 a major change in its approach to the regulations of household goods carriers. It added several new protections for the consumer, but carefully balanced them by eliminating some unnecessary regulation of the carriers. The majority, however, ignores this change and by today's decision significantly skews Congress's carefully crafted program for protecting movers of household goods. By reaching back to 1916 to discover a latent intent to authorize deductibles, one that was neither expressed nor exercised in the ensuing sixty years, the majority undermines the legislature's newly enhanced concern for householders. As petitioners colorfully argue, because the particular tariff under review grants the carriers a "license to steal" from each householder up to the deductible amount, it thereby removes much of the added consumer protection that Congress sought to create.
97
The petition for review should be granted and the commission's order should be vacated.
1
The jurisdictional provisions of the Act are contained in chapter 105, 49 U.S.C. §§ 10501-10562 (Supp. IV 1980), which gives the Commission jurisdiction over most transportation by interstate rail, rail-water, and pipeline carriers (Subchapter I); by interstate motor carriers (Subchapter II); by interstate water carriers (Subchapter III); and by interstate freight forwarder services (Subchapter IV). Section 10730 governs all of these except water carriers
2
The section governing carriers' ability to limit their liability was numbered 10730 in 1978 by the Revised Interstate Commerce Act, Pub.L. No. 95-473, 92 Stat. 1337 (1978), which recodified the Interstate Commerce Act without substantive revision. H.R.Rep. No. 1395, 95th Cong., 2d Sess. 4 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 3009, 3013. Prior to the recodification, the provision had been codified as part of 49 U.S.C. § 20(11) (1976) (carrier may be authorized "by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property")
3
In 1980 Congress also enacted legislation with respect to the transport of household goods. See Household Goods Transportation Act of 1980, Pub.L. No. 96-454, 94 Stat. 2011 (Oct. 15, 1980). This statute retained the restrictions of the pre-1980 § 10730 with respect to motor carriers of household goods notwithstanding its elimination of other federal regulation
4
Petitioners initially had petitioned this Court for judicial review of the released-rate orders in December 1980. That petition was withdrawn in order to permit petitioners to seek declaratory relief from the Commission or legislative relief from Congress
5
On the other hand, a sizeable deductible in connection with small shipments, unaccompanied by the option for greater coverage at a higher rate, would undoubtedly have been disapproved at common law and would likely be disapproved by the Commission, which in 1978 expressed its "concern[ ] about the small shipper who cannot [absorb losses due to increased risk in conjunction with released rates] and who, therefore, requires that the carrier accept greater liability." 1978 Motor Carrier Restructuring Proceedings, supra, 359 I.C.C. at 433. Thereafter, prior to the 1980 amendments to § 10730, the Commission promulgated rules requiring that any small shipments tariff containing released rates include a rate under which the carrier would assume full common carrier liability and requiring that the released and full value rates be reasonable and bear a reasonable relationship to one another. Released Rates in Conjunction with a Small Shipments Tariff, 362 I.C.C. 614, 617 (1980)
6
In 1906, Congress had passed the Carmack Amendment to the Interstate Commerce Act, ch. 3591, sec. 7, 34 Stat. 584, 593-95 (1906), which provided that no contract, rule, receipt, or regulation could exempt a carrier from full liability. The courts, however, read this directive as nothing more than a codification of common-law principles, and they continued to uphold reasonable released-rate agreements, reasoning that such arrangements were not exemptions from liability but "agreement[s] as to the method by which the carrier would have to account to the shipper in case of loss." Mulcahy, Motor Carrier Cargo Liability--An Overview, 49 I.C.C.Prac.J. 257, 260 (1982) (citing, inter alia, Adams Express Co. v. Croninger, supra ). Congress responded in 1915 by passing the first Cummins Amendment, ch. 176, 38 Stat. 1196 (1915), which prohibited all released-rate arrangements except in the case of goods that were concealed and whose character was unknown to the carrier. Within a year, however, Congress determined that the first Cummins Amendment was too restrictive; it passed the second Cummins Amendment, ch. 301, 39 Stat. 441 (1916), which returned to the common-law practice of permitting released rates, but permitted such arrangements only if authorized by the ICC
7
We are unimpressed by petitioners' observation that prior to the Interstate application, the Commission had never approved a rate that included a deductible. The Commission represents, and there is no contrary indication in the record, that no carrier had ever before sought such approval
Nor, however, are we influenced by the Commission's contention that in 1978 Motor Carrier Restructuring Proceedings, supra, 359 I.C.C. at 434, it had "indicated ... that [deductibles] clauses are an acceptable and legitimate means of limiting carrier liability." (ICC brief at 34.) We find the reference to deductibles in that report rather ambiguous, and since the Commission's characterization is made in a litigation document rather than an administrative order of the type to which we would ordinarily feel constrained to defer, see, e.g., National Motor Freight Traffic Association v. ICC, supra, 590 F.2d at 1185, we place no reliance on the report or the Commission's characterization of it.
8
Petitioners argue that a deductible is fundamentally different from the traditional released rate because the latter represents the value of the property shipped, whereas the former is a predetermined amount to be subtracted from that value. This contention misperceives the thrust of the term "value" in § 10730. The reference in that section to "a value established by written declaration of the shipper, or by written agreement," is not a reference to the intrinsic worth of the property but rather to the maximum compensation that the parties agree the shipper may recover for a loss. Cf. George N. Pierce Co. v. Wells, Fargo & Co., supra, 236 U.S. at 285, 35 S.Ct. at 353 ("[T]he legality of the contract does not depend upon a valuation which shall have a relation to the actual worth of the property."). Likewise at common law there was no requirement that the agreed "value" have any relation to the property's intrinsic worth. See id. at 283-85, 35 S.Ct. at 353-54; see also Hart v. Pennsylvania Railroad, supra, 112 U.S. at 341, 5 S.Ct. at 156 (shipper and carrier may agree to liquidated damages)
9
We disagree with petitioners' contention that in Secretary of Agriculture v. United States, 350 U.S. 162, 76 S.Ct. 244, 100 L.Ed. 173 (1956), the Supreme Court ruled that deductibles were an unlawful limitation of the carrier's liability. At issue before the Court was the ICC's approval of a tariff that included a 3% "claims tolerance" to be deducted from every claim against a railroad with regard to transportation of eggs. (We note parenthetically our disagreement with petitioners' characterization of these "tolerances" as a type of deductible, and note also that the characterization contradicts petitioners' own argument (see note 7 supra ) that the Commission had never before 1980 approved a deductible.) The Supreme Court reversed the district court's approval of the ICC order solely on the ground that the ICC had failed to support its decision with "findings upon which [the Court] can say that the Commission's conclusion was reasonably based." Id. at 167, 76 S.Ct. at 248. The Court expressly declined to consider the shippers' argument that such "tolerances" were a forbidden form of limitation of liability. Id. at 165-66, 76 S.Ct. at 246-47
10
Like the Motor Carrier Act and the Staggers Rail Act, the Household Goods Transportation Act, Pub.L. No. 96-454, 94 Stat. 2011 (Oct. 15, 1980), sought to establish "maximum carrier flexibility in pricing." H.R.Rep. No. 1372, 96th Cong., 2d Sess. 5 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4271, 4275
11
Petitioners rely on an ICC report to Congress one year after the 1980 amendments were enacted as support for their proposition that deductibles were not permitted before the Staggers Rail Act was passed. The report contained the following statement:
A second change made by the Staggers Act was to permit deductibles. Prior to the Staggers Act, released rates were rates lower then [sic ] full value rates which carried a limitation on the amount of damages recoverable in the event of loss or damage. Released rates may now specify a deductible in addition to the stated limitations on the amount recoverable.
Rail Carriers Cargo Liability Study, Ex Parte No. 403, at 8-9 (I.C.C. Oct. 9, 1981), as quoted in Petitioners' brief at 18 n. *. While this 1981 statement might be read as indicating the belief that petitioners ascribe to the Commission, such a reading is squarely contradicted, insofar as nonrail carriers are concerned, by the Commission's 1980 rulings on Interstate's application to use deductibles and on petitioners' requests for reconsideration, and its 1982 ruling on petitioners' request for a declaratory order, all quoted in Part I.B. supra. We think it more likely that the statement reflected the practical fact that, as recognized by the Senate, the ICC had been hesitant prior to the 1980 amendments, even when there was no opposition, to approve any sort of released rates by railroads. See S.Rep. No. 470, 96th Cong., 1st Sess. 32 (1979).
12
These factors and Congress's desire to "assure" that deductibles would be permitted may provide a clue to why Congress would take pains to specify that railroads were entitled to use deductibles if it believed that deductibles were a form of limitation of liability the Commission previously could have authorized. By simply eliminating the ICC's authority to review railroads' released rates, Congress removed the uncertainty inhering in the subjection of those rates to administrative review. But that simple elimination of ICC review also made it less certain that released rates would pass muster on judicial review. Under the prior regulatory scheme, if the Commission had approved a released rate including a deductible, a reviewing court would likely have deferred to the Commission's discretion and upheld the limitation of liability, see, e.g., National Motor Freight Traffic Association v. ICC, supra; without that layer of administrative insulation between the railroad and a court reviewing its released-rate structure, however, the outcome of judicial review would be a good deal less certain. Thus, it may well be that in explicitly mentioning deductibles Congress simply meant to "assure" that this type of liability limitation, which had not previously been used, would not be set aside by the courts on the basis of its novel form
*
[A]ny common carrier * * * shall be liable to the lawful holder [of a receipt or bill of lading] for any loss, damage, or injury to such property caused by it * * *, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier * * * from the liability imposed; and any such common carrier * * * shall be liable to the lawful holder of said receipt or bill of lading * * * for the full actual loss, damage, or injury to such property * * *, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading * * *; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void; * * * Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, * * *; second, to property * * * concerning which the carrier shall have been or shall be expressly authorized * * * to establish and maintain rates dependent upon the value declared in writing by the shipper and agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, * * *
49 U.S.C.A. § 20(11) (West 1951).
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817 F.2d 103Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Earl Verlo PILKENTON, Defendant-Appellant.
No. 86-7719.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 10, 1987.Decided April 23, 1987.
Before RUSSELL, WIDENER and HALL, Circuit Judges.
Earl Verlo Pilkenton, appellant pro se.
Thomas Jack Bondurant, Jr., Office of the United States Attorney, for appellee.
PER CURIAM:
1
A review of the record and the district court's opinion discloses that this appeal from its order refusing relief under 28 U.S.C. Sec. 2255 is without merit. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court. United States v. Pilkenton, CR. No. 85-36; C/A No. 86-421-R (W.D. Va., Oct. 24, 1987).*
*
We also find no merit in appellant's claims that his counsel was ineffective (1) because of a conflict of interest, (2) because he failed to bring appellant's file to the sentencing hearing, and (3) because he failed to argue that appellant's sentence should have been less than the one imposed on his codefendant. The record reveals that appellant waived any potential conflict of interest between himself and his attorney. Moreover, appellant cannot demonstrate the required degree of prejudice to meet the test of attorney ineffectiveness under Strickland v. Washington, 466 U.S. 668 (1984)
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590 F.2d 336
U. S.v.Stephens
No. 78-5264
United States Court of Appeals, Sixth Circuit
12/13/78
1
E.D.Ky.
AFFIRMED
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118 F.3d 1
UNITED STATES of America, Appellee,v.Tariq PERVAZ, Defendant, Appellant.UNITED STATES of America, Appellee,v.Jimmie ALZAMORA, Defendant, Appellant.
Nos. 96-1535, 96-1536.
United States Court of Appeals,First Circuit.
Heard March 3, 1997.Decided June 24, 1997.
William J. Murphy, Providence, RI, for appellant Tariq Pervaz, Thomas G. Briody, Providence, RI, for appellant Jimmie Alzamora.
Sheldon Whitehouse, United States Attorney, Providence, RI, with whom Andrew J. Reich, Assistant United States Attorney, was on brief for appellee.
Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.
BOWNES, Senior Circuit Judge.
1
Defendants/Appellants Jimmie Alzamora and Tariq Pervaz were indicted and charged with seven counts of fraud and related activities involving access devices to telephone calls transmitted by cellular phones, in violation of 18 U.S.C. §§ 1029(a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), and § 1029(b)(2) (conspiracy to commit offenses).
2
There was a hearing in the district court on a motion to suppress filed by Alzamora and Pervaz. The suppression motion was denied. Alzamora and Pervaz entered conditional pleas of guilty to all seven counts of the indictment, reserving their right to appeal the district court's denial of the suppression motion.
3
Alzamora was sentenced to fourteen months imprisonment and ordered to pay restitution in the amount of $190,275.33. Pervaz was sentenced to eighteen months imprisonment and ordered to pay restitution in the same amount as Alzamora--$190,275.33. Both defendants appeal their convictions and the restitution order. Pervaz has not filed a brief on appeal; he has chosen to rely on the brief filed by his co-defendant Alzamora. Except as noted otherwise, we treat both defendants as one in this opinion.
STANDARD OF REVIEW
4
The applicable standard of review has been set forth in detail in Ornelas v. United States, --- U.S. ----, ---- - ----, 116 S.Ct. 1657, 1661-63, 134 L.Ed.2d 911 (1996). We condensed that teaching in the recent case of United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir.1997):
5
In reviewing a denial of a suppression motion, the district court's ultimate legal conclusion, including the determination that a given set of facts constituted probable cause, is a question of law subject to de novo review. See Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996); United States v. Zayas-Diaz, 95 F.3d 105, 111 n. 6 (1st Cir.1996). The district court's findings (if any) of historical facts--"the events which occurred leading up to the ... search," Ornelas, --- U.S. at ----, 116 S.Ct. at 1661--must be upheld unless they are clearly erroneous. See id. at ----, 116 S.Ct. at 1663; Zayas-Diaz, 95 F.3d at 111 n. 6. A reviewing court must "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, --- U.S. at ----, 116 S.Ct. at 1663. But "the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to ... probable cause" is a mixed question of law and fact which we review de novo. Id. at ---- - ----, 116 S.Ct. at 1661-63.
THE FACTS
A) Background
6
Defendants were convicted of taking part in a telephone "cloning" operation. Some background information is necessary. Cellular phones transmit messages by radio waves, not wires. Telephone companies, e.g., AT & T, Sprint, and MCI, offer their customers the use of an access device number called a mobile identification number (MIN), which allows customers to make and receive both local and long distance telephone calls through their cellular telephone carriers, e.g., Cellular One, Mobile Communications, SNET, and COMCAST. Cellular telephone customers are also assigned Electronic Serial Numbers (ESN) for their phones. Both MINs and ESNs are access devices within the meaning of the statute, 18 U.S.C. § 1029(e)(1).
7
Cellular telephone subscribers are assigned a combination of an MIN and an ESN to access cellular service. The MIN/ESN combination number also is used by the carrier for billing its cellular phone subscribers. The MIN/ESN access combination is programmed on "Erasable Programmable Read Only Memory" (EPROM) located on a computer chip which is part of the circuitry of the telephone.
8
A cellular telephone "cloning" operation is a scheme to defraud in which MIN/ESN combinations issued to subscribers are stolen and reprogrammed on a nonsubscriber's cellular telephone so as to obtain use of the subscriber's account. The cloning is accomplished by attaching the nonsubscriber's cellular phone to a personal computer through a specially designed interface cable. The cable, used with customized cloning software, gains access to the "EPROM" computer chip and the stolen MIN/ESN number is programmed onto the computer chip in the nonsubscriber's cellular phone. Customers pay those running the fraudulent scheme a fee to use the stolen MIN/ESN numbers to make local, long distance or international phone calls which are billed to the stolen account. The fee is, of course, less than the regular rates. The subscriber does not know that his access number is being used by others until he gets his telephone bill.
B) Suppression Hearing Evidence
9
At the outset of our rehearsal of the evidence adduced at the suppression hearing, we caution the reader that the dates of conversations and events are an important factor in our determination whether the employees of Cellular One of Boston (COB) were acting as government agents. The case, for our purposes, begins on September 13, 1995, when employees of Southern New England Telephone Company (SNET) and Cellular One of Rhode Island (CORI) informed the U.S. Secret Service that a disproportionately large number of international telephone calls were being made from a cellular phone (or phones) located in Cranston, Rhode Island.
10
The Secret Service, through Special Agent James Barnard, called CORI the next day (September 14) for further information and talked to Dan Mott, a service technician. Mott told Barnard that a number of the international calls had been made with MINs which were not in the calling area to which the MINs were ordinarily designated. Barnard was further informed by Mott that the calls were being made through one cellular phone location. Barnard asked if Mott had any equipment that could pinpoint the exact site of the calls; Mott said that he did not have such equipment.
11
On September 14, 1995, Barnard called the Secret Service Office in Boston and inquired whether it had any site-location equipment. He was told that it did have such equipment but that it was not available. Barnard was also told that COB might be able to help him.
12
Barnard called COB later the same day (September 14) and talked to Ron Anderson. He explained the situation and asked if COB had equipment that could locate the source of the cloned calls. Barnard advised Anderson that COB customers were among those being defrauded by the cloning operation. Anderson told Barnard that COB had equipment that would help locate the exact source of the calls, but that he would have to check with COB's legal department to see whether the equipment could be used in Rhode Island. After being told by Anderson that COB's customers were being defrauded, COB's legal department advised Anderson that the tracking equipment could be used in Rhode Island. Instead of calling Barnard back as promised, Anderson and two other COB employees went to Cranston, Rhode Island, the afternoon of September 14 in a van carrying the tracking equipment.
13
The frequencies used to make the international calls were obtained by Anderson from SNET. Using these frequencies, Anderson and his crew proceeded in the van to the general source area of the calls. The tracking equipment was then put into operation. Anderson and the two other men (Dan Valios and Rick Wade) monitored the frequency of the cellular phone calls and also listened to telephone conversations. Wade testified that they could have determined the source of the phone calls without listening to the phone conversations, but that the audio interception established that the tracking equipment was working properly. He also testified that the intercepted conversations were not in English and that none of those in the van understood what was being said. After driving around Cranston for about half an hour, the tracking equipment pointed to two adjacent houses as the probable source site. Wade got out of the van and using a hand-tracking device pinpointed the source of the calls as the left side of the first floor of a multi-family dwelling with the address of 156-158 Woodbine Street.
14
Anderson called Agent Barnard after the source phone site had been pinpointed and informed Barnard of what had been done. The following day, September 15, Barnard applied for and obtained a warrant to search the apartment on the left side of the building at 156 Woodbine Street, Cranston, Rhode Island. The warrant was executed on September 15. Federal agents arrested defendants on the premises and seized a number of cellular telephones, computer equipment and other evidence of the cloning operation.
THE ISSUES
15
Before we address the main issues--whether COB's employees were acting as government agents, and the legality of the search warrant--we consider two issues raised by the government. The first is the government's argument, not raised in the district court, that because neither defendant had a privacy interest in the apartment searched, neither had standing to challenge the legality of the warrant. The government argues that it had no duty to assert a lack of privacy interest below because defendants had the burden of proving it. We are reluctant to allow the government to trap an unwary defendant by raising a lack of privacy interest for the first time on appeal unless it is absolutely clear that the defendant had no privacy interest in the premises, vehicle, or container searched. See United States v. Soule, 908 F.2d 1032, 1034-36 (1st Cir.1990); United States v. Miller, 636 F.2d 850, 853-54 (1st Cir.1980).
16
This is not such a case. The following facts can be fairly found or inferred from the record: Defendant Pervaz leased the premises. He and defendant Alzamora were friends or, at least, partners in crime. Alzamora moved into the apartment where the fraudulent phone calls were made and remained there several days with the blinds drawn. Both defendants were in the apartment when the warrant was executed. These facts are not sufficient for us to decide the privacy question one way or the other.
17
In Combs v. United States, 408 U.S. 224, 226-27, 92 S.Ct. 2284, 2285-86, 33 L.Ed.2d 308 (1972), the Court held that where the court of appeals had found no standing and the government had not challenged defendant's standing in the district court, the issue should be remanded to the district court so the defendant could have an opportunity to show standing. In United States v. Bouffard, 917 F.2d 673 (1st Cir.1990), the government conceded standing in the district court and on appeal, but a privacy interest was not apparent on the record. We held: "Considerations of fundamental fairness warrant remand in order to afford the defendant an opportunity to attempt to establish the requisite expectation of privacy." Id. at 677. There are cases in other circuits that are directly critical of the government's failure to address standing in the district court. In United States v. Dewitt, 946 F.2d 1497, 1500 (10th Cir.1991), the court held: "The government offers no excuse for its failure to raise the standing issue in a timely fashion at the suppression hearing. Accordingly, the argument is waived." The court relied on Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In United States v. Morales, 737 F.2d 761, 763 (8th Cir.1984) (footnote omitted), the Eighth Circuit held:Despite appellant's failure to prove that he had a legitimate expectation of privacy in room 141, we nonetheless find that because of the inconsistent positions the government has taken at trial and on appeal concerning appellant's alleged disclaimer of knowledge of the key, the government has lost its right to challenge appellant's standing.
18
If the privacy question was vital, we would, at the very least, remand to the district court for factual findings. Because, however, it is not, we will assume standing for purposes of this appeal.
19
The other argument the government makes is purely legal: There was no violation of the Electronic Communications Privacy Act because locating a transmitter broadcasting on a radio frequency does not constitute "intercepting" a communication under the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2510 et seq. We are aware that there are cases holding that users of cellular phones are not protected by the Fourth Amendment. See In Re Askin, 47 F.3d 100, 104 (4th Cir.1995); United States v. Smith, 978 F.2d 171, 174-76 (5th Cir.1992). The operative facts in these cases, however, took place before the provision in 18 U.S.C. § 2510(1) expressly excluding the radio portion of a cordless telephone communication from the protection of the Act was deleted by amendment in 1994. See Pub.L. No. 103-414 § 202(a)(1). Moreover, in the instant case, more took place than just locating the source of a radio frequency; those tracking the broadcast frequency listened to the actual conversations being transmitted. This appears to be covered by the Act. We see no point, however, in deciding what appears to be a thorny question not necessary to our decision. We follow the district court's lead and assume, without deciding, that the Act applies.
A) Issues Raised by Defendants
20
The first issue is whether the employees of Cellular One of Boston (COB) were acting as government agents when they tracked the radio frequency of the cloned cellular phone. Under 18 U.S.C. § 2511(2)(a)(i), it is not unlawful for the employee of a provider of wire or electronic communication services whose facilities are used in the transmission of wire or electronic communication, "to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service...." The following subsection, (2)(a)(ii), authorizes such employees "to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications...."
21
It is evident that COB's employees, on learning from Secret Service Agent Barnard that COB customers were being defrauded by the cloning operation, had a statutory right to track the radio frequency of the cloned phone. If the COB employees were government agents, however, the requirements of the Fourth Amendment would override statutory authority.
22
The question remains, were the employees acting as agents of the government? See United States v. Mendez-de Jesus, 85 F.3d 1, 2-3 (1st Cir.1996) (Fourth Amendment does not apply to private action unless private party acted as agent or instrument of government.)
23
Various tests have developed for determining whether a private entity has acted as a government agent. For example, see United States v. Pierce, 893 F.2d 669, 673 (5th Cir.1990). The Sixth Circuit in United States v. Lambert, 771 F.2d 83 (6th Cir.1985) has stated the rule as follows:
24
A person will not be acting as a police agent merely because there was some antecedent contact between that person and the police. United States v. Coleman, 628 F.2d at 965 [(6th Cir.1980)]. Rather, two facts must be shown. First, the police must have instigated, encouraged or participated in the search. Id. Second, the individual must have engaged in the search with the intent of assisting the police in their investigative efforts.
25
Id. at 89. The Ninth Circuit has held that, "two of the critical factors in the 'instrument or agent' analysis are: (1) the government's knowledge and acquiescence, and (2) the intent of the party performing the search." United States v. Walther, 652 F.2d 788, 792 (9th Cir.1981). In United States v. Attson, 900 F.2d 1427, 1433 (9th Cir.1990), the Ninth Circuit added a gloss to its rule:
26
[A] party is subject to the fourth amendment only when he or she has formed the necessary intent to assist in the government's investigative or administrative functions; in other words, when he or she intends to engage in a search or seizure. However, under this test, the fourth amendment will not apply when the private party was acting for a reason that is independent of such a governmental purpose.
27
In United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir.1996), the Tenth Circuit requires that the government must "affirmatively encourage or instigate the private action." This is determined by "the totality of the circumstances."
28
We think that any specific "standard" or "test" is likely to be oversimplified or too general to be of help, and that all of the factors mentioned by the other circuits may be pertinent in different circumstances: the extent of the government's role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests.
29
Our review of the suppression hearing evidence and the district court's findings of historical facts is made through a lens adjusted for clear error viewing. It is probably true that there would have been no search made by COB employees were it not for Agent Barnard's telephone call inquiring about equipment for locating the source of the transmissions and informing COB that its customers were being defrauded. But there is no evidence that Barnard authorized the search or even knew about it. COB employee Anderson in answer to Barnard's query about whether COB had source-location equipment said that it did, but he would have to check with the legal department to see if it could be used in Rhode Island. Anderson told Barnard that he would call him back. He did not do so. Instead, he and the other two employees went to Cranston, Rhode Island, and started tracking the radio signals on their own. Their motivation was that COB's customers were being defrauded. Barnard was ignorant of what was transpiring. COB had a statutory right to investigate and search for the sources of the radio transmitted phone calls. It had a legitimate independent motivation for its search: to prevent a fraud from being perpetrated on its customers. That is the purpose of 18 U.S.C. § 2511(2)(a)(i) and (ii).
30
Our combined clear error review of the historical facts and de novo review of the district court's conclusion compels a holding that there was no government action in this case.1
B) The Affidavit and Search Warrant
31
We next consider defendant's claim that the search-warrant affidavit submitted by Special Agent Barnard lacked probable cause. Keeping in mind the standard of review, we have examined the eight-page affidavit meticulously.
32
Paragraph 1 identifies the affiant and explains that his routine duties include "the investigation of violations of federal laws pertaining to the unauthorized use of access devices." The next paragraph, (2), describes the premises to be searched. This will be discussed in detail in the next part of the opinion.
33
Paragraph 3 states that the government (Secret Service) has been conducting an investigation of a telephone fraud scheme in Cranston, Rhode Island. The next paragraph gives the names and addresses of individuals with whom the affiant had spoken in the course of the investigation.
34
Paragraph 5 explains the use of MIN numbers as an access device, which we have already covered in the Facts section of this opinion. In paragraph 6, the affiant expresses his belief that individuals are using telephones at the location described in paragraph 2 to commit a telecommunications fraud scheme. This paragraph goes on to state that individuals have "captured" valid MIN and ESN numbers "into mobile telephones" "and are using these numbers fraudulently to make telephone calls internationally by way of telephone credit card account numbers."
35
Paragraph 7 explains that the MIN/ESN combination is programmed on "Erasable Programmable Read Only Memory (EPROM)", located on a computer chip within the general circuitry of the telephone. Paragraph 8 describes a cellular telephone cloning operation. This has already been set forth in the Facts section of this opinion.
36
Paragraph 9 describes a "call sell" operation by which a customer pays a fee for making long-distance phone calls which are billed to the stolen credit card account numbers. Paragraph 10 recites that long-distance calls are being made by unidentified individuals from 156 Woodbine Street, Cranston, Rhode Island, from "cloned" cellular phones. It is then stated:
37
After accessing a long distance carrier the individual enters a credit card number to which to bill the international call. Subsequently, the individual defrauds the mobile telephone company of the revenues due them for air time and defrauds the issuing credit card company for revenues due them for tolls. The defrauded company will have to issue the subscriber a credit for the fraudulent billing, thereby, incurring the monetary loss.
38
Paragraph 11 states in effect that Secret Service Agent John Enright received information from Cheryl Maher, Fraud Manager of Cellular One Rhode Island, that individuals were using "cloned" phones "to access long distance carriers such as MCI, Sprint and AT & T and are using credit card telephone numbers to make international calls." Paragraph 12 recites a telephone call received by Agent Barnard from Jan Mott, a Cellular One technician, giving him essentially the same information recited in paragraph 11. Paragraph 13 recites further information received from Mott. It concludes: "Mott stated that since the telephone calls were mostly being made from one site (site 29) it indicated that the caller was not mobile but was stationary."
39
Paragraph 14 states that on September 14, 1995, Agent Barnard (affiant) spoke with Secret Service Agent Rodriguez of the Financial Crimes Division of the Secret Service. Rodriguez told him that when a caller using a cellular phone accesses a credit card company such as MCI, Sprint or AT & T through an access number, the credit card number used is not recorded by Cellular One. Paragraph 15 recites briefly the same facts we have described fully in the government-agency section of this opinion.
40
Paragraph 16 states that Rick Wade, an employee of Cellular One, had its telephone switch office monitor the international telephone calls from Cranston, Rhode Island.2 This established that twenty-five telephone numbers were identified as originating from 156 Woodbine Street, Cranston, Rhode Island. The total time of the calls was 151 hours, normally billed at $.75 per minute. The calls continued over a 24-hour period. Paragraph 17 states that Maher (Fraud Manager of Cellular One Rhode Island, see paragraph 11), provided a partial list of telephones that appear to have been cloned and are being used in the Cranston, Rhode Island, area. The numbers are listed.
41
Paragraphs 18, 19, and 20 recite the experience and training of the affiant. Paragraph 21 is the affiant's "probable cause" statement.
42
Based on our de novo review of the affidavit and the facts leading to the district court's conclusion that there was probable cause to issue the warrant, we hold that there was probable cause for issuing the search warrant.
43
The next issue is the validity of the warrant. Defendant claims that the warrant was defective because it inaccurately described the place to be searched. The warrant affidavit described the premises to be searched as follows:
44
I make this affidavit in support of a search warrant for the two bedroom first floor apartment of the residence located at 156 Woodbine Street, Cranston, Rhode Island, further described as a three story, wood framed building with a yellow front, brown trim and brown sides. The number 156 appears on a post next to the door on the left as one faces the building. On the first floor are two apartments which are accessed through the door marked 156. The apartment for which this warrant is sought is the two bedroom apartment on the left side of the first floor.
45
The pertinent part of the search warrant states:
In the Matter of the Search of
46
(Name, address or brief description of premises, property or premises to be searched)
Two bedroom first floor
47
apartment of the residence SEARCH WARRANT
48
located at 156 Woodbine CASE NUMBER:
St., Cranston, RI, further 1:95-M-020816
49
described as a three story,
50
wood framed building with
51
a yellow front, brown
52
trim and brown sides.
53
TO: Any Special Agent of the Secret Service and any Authorized Officer of the United States
54
Affidavit(s) having been made before me by James M. Barnard who has reason to believe that ____ on the person of or x on the property or premises known as (name, description and/or location)
55
Two bedroom first floor apartment of the residence located at 156 Woodbine St., Cranston, RI, further described as a three story, wood framed building with a yellow front, brown trim and brown sides. The number 156 appears on a post next to the door on the left as one faces the building. On the first floor are two apartments which are accessed through the door marked 156. The apartment for which this warrant is sought is the two bedroom apartment on the left side of the first floor.
56
Defendants argue that the warrant did not meet the particularity requirement of the Fourth Amendment. They point out correctly that the number 156 was on the left post at the top of the stairs leading to the entrance landing and that the number 158 was on the right post at the top of the stairs. It is stated in defendant's brief at page 26: "But the warrant does not indicate which direction one must face in determining right from left." This statement is not correct. The warrant states: "The number 156 appears on a post next to the door on the left as one faces the building." (Emphasis added).
57
Defendant also argues that, because of the two different address numbers, those executing the warrant should have called the Magistrate and clarified what apartment was to be searched. The record of the suppression hearing establishes conclusively that Agent Barnard knew exactly what apartment was to be searched and proceeded directly to it. Barnard testified in effect as follows.
58
There were two entrance doors to the building containing the apartment to be searched. There were two posts on either side of the steps when you get to the entrance landing. The post on the right-hand side of the steps as one faced the building had the number 158 on it. The post on the left side carried the number 156 on it. Barnard entered the building through the 156 door entrance. He took a short step to the right and proceeded down a hallway to an apartment on the left side of the first floor of the building. This apartment had the number 156A on the door. This was the apartment that was searched.
59
One of defendants' arguments is that the defendants actually lived at 158 Woodbine Street, not 156. The number on the door of the apartment searched--156A--effectively refutes this claim.
60
We find and rule that an objective law enforcement officer would not be confused by the two different address numbers and that the particularity requirement of the Fourth Amendment was met. The only confusion was that sown by the attorneys for the defendants at the suppression hearing.
61
Even, however, if the address given in the warrant may have been somewhat suspect our circuit case law teaches that any uncertainty raised by the two address numbers did not invalidate the search warrant.
62
The leading case in this circuit on the adequacy of the description of the location to be searched is United States v. Bonner, 808 F.2d 864 (1st Cir.1986). In Bonner we stated:
63
The manifest purpose of the particularity requirement of the Fourth Amendment is to prevent wide-ranging general searches by the police.
64
The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient "to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched."
65
Id. at 866 (citations omitted). In Bonner the affidavit contained a detailed physical description of the premises to be searched and its address. The address, however, was omitted from the warrant. We upheld the validity of the warrant, stating:
66
We hold that the Bonner residence was described with sufficient particularity, and although the address was inadvertently omitted, there was no reasonable probability that another premises might be mistakenly searched; thus, the search warrant was valid.
67
Id. at 867. Three subsequent cases have relied on the Bonner analysis and holding: United States v. Cunningham, 113 F.3d 289 (1st Cir.1997); United States v. Estrella, 104 F.3d 3, 9 (1st Cir.1997); United States v. Hinds, 856 F.2d 438, 441 (1st Cir.1988). This precedent seals the issue.
68
We are aware, of course, that the district court decided the warrant issue on the basis of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We do not reach the Leon approach, and therefore, there is no need to discuss defendant's claim of lack of good faith by the searching officers.
69
Defendant also claims that the district court abused its discretion when it raised the issue of the accuracy of Cellular One's Boston Tracking Equipment, but then denied defendant's motion to have the equipment independently examined. The record of the suppression hearing discloses that this is not exactly what happened. The district court questioned COB employee Wade about how the source-location was determined. She asked Wade "to tell us how the equipment works in order for you to be able to make the determination in laymen's terms." Wade then explained what he did and how the equipment worked. The court then asked further questions about what Wade did, and what he did or did not tell Barnard. The court's examination of Wade ended with the following colloquy:
70
Q. So that before the warrant issued, you hadn't shown the equipment to the Government agents and explained how you were able to isolate the signal?
71
A. I don't believe I did.
72
Q. Did they ever ask you what kind of equipment you were going to use to do this?
73
A. No.
74
Q. Did they ever ask you the reliability of the equipment you were going to use?
75
A. No.
76
We construe the court's questions, not as evincing doubt on its part as to the reliability of the tracking equipment, but as seeking what information about the equipment had been given to the government, which was very little.
77
We agree with the district court that the motion came too late for consideration. Under Fed.R.Crim.P. 16(a)(1)(C) defendant had a right to inspect the tracking equipment prior to trial. Clearly, defendant never thought about inspecting the equipment until the court's last question to Wade. This was too late. We have examined the record carefully and there is nothing to even suggest that the tracking equipment was unreliable in any way. We hold that the district court did not err in denying defendant's motion.
78
The final issue is whether the district court erred in determining the amount of loss. The district court ordered each defendant to pay restitution in the amount of $190,275.33. This sum represented the amount that the defrauded telephone companies would have been paid if the calls had been made legitimately. Under U.S.S.G. § 2B1.1, application note 2 states in pertinent part: "Loss means the value of the property taken, damaged, or destroyed. Ordinarily, when property is taken or destroyed the loss is the fair market value of the particular property at issue." The pertinent part of note 3 states: "For the purposes of subsection (b)(1), the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information."
79
Defendants assert that the amount used was erroneous because it "reflects both the costs associated with processing the calls and a profit margin for the various cellular phone carriers and providers." No cases are cited for this novel proposition. Defendants rely on the following sentence in application note 2 of U.S.S.G. § 2B1.1: "Loss does not include the interest that could have been earned had the funds not been stolen."
80
We are not persuaded. We do not think that profit can be equated with interest. Profit is an ingredient of the fair market value of goods or services that can be sold and purchased.
81
We discern no error, plain or otherwise, in the district court's determination of the amount of restitution.
82
The judgment of the district court is affirmed.
1
Ornelas called for de novo review of the district court's conclusion that a given set of historical facts rose to the level of probable cause. --- U.S. at ----, 116 S.Ct. at 1659. The Court did not specifically decide whether a similar de novo standard should be applied to the legal question at issue here: whether a private entity has acted as a government agent for Fourth Amendment purposes. Because the defendants' appeal fails even under the more searching de novo standard, we assume without deciding that the Ornelas de novo standard applies
2
It is clear from Wade's testimony at the suppression hearing that this was done after the apartment at 156 Woodbine Street had been pinpointed as the source of the cloned calls
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76 So.3d 872 (2010)
EX PARTE ELVIN EARL DARBY II.
Nos. 1081152, (CR-07-1432).
Supreme Court of Alabama.
January 15, 2010.
DECISION WITHOUT PUBLISHED OPINION
Cert. denied.
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227 U.S. 504 (1913)
BACON, DOING BUSINESS AS WABASH ELEVATOR,
v.
PEOPLE OF THE STATE OF ILLINOIS.
No. 76.
Supreme Court of United States.
Argued December 6, 1912.
Decided February 24, 1913.
ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.
*509 Mr. Walter Bachrach, with whom Mr. Moritz Rosenthal and Mr. Joseph W. Moses were on the brief, for plaintiff in error.
Mr. Louis J. Behan and Mr. Gustavus J. Tatge, with whom Mr. Francis S. Wilson was on the brief, for defendant in error.
*510 MR. JUSTICE HUGHES, after making the above statement, delivered the opinion of the court.
*511 Did the enforcement of the local tax upon the grain in the elevator of the plaintiff in error amount to an unconstitutional interference with interstate commerce?
The Supreme Court of Illinois was of the view that if the grain was in transit in interstate commerce it was exempt from local taxation. In its opinion, that court said: "The sole question presented by this record is, was the grain upon which the tax was levied in transit on April 1, 1907? If it was so in transit it was not liable to be taxed while passing through the State to its destination. On the other hand, if it was not in transit but had a situs in this State it was subject to taxation under state authority." In this view of the issue, the court sustained the recovery of the amount of the tax.
It is now contended, however, by the defendant in error that the question thus defined was an immaterial one; that even if the property was in transit and was the subject of interstate commerce, it was nevertheless liable to assessment, in common with the other personal property of the plaintiff in error, because he was a resident of the State and the property was within the limits of the county where the assessment was made.
This argument proceeds upon a misconception of the ground upon which the power to tax articles actually moving in interstate transportation is denied to the States. That denial rests upon the supremacy of the Federal power to regulate interstate commerce. Its postulate is the necessary freedom of that commerce from the burden of such local exactions as are inconsistent with the control and protection of that power. The fact that such a burden is sought to be imposed by the State of the domicile of the owner, upon property moving in interstate commerce, creates no exception. That State enjoys no prerogative to make levy upon such property passing through it, because it may belong to its citizens. They, as well as others, are under the shelter of the commerce *512 clause. The question is determined not by the residence of the owner but by the nature and effect of the particular state action with respect to a subject which has come under the sway of a paramount authority.
This is clearly shown by the reasoning of the decisions which define the limits of the state taxing power with respect to property about to leave the State of its origin or while it is on its way to its destination in another State. In Coe v. Errol, 116 U.S. 517, the question was whether the products of a State, in that case timber cut in the forests of New Hampshire, though intended for exportation to another State and partially prepared for that purpose by being deposited at a place or port of shipment, was liable to be taxed like other property within the State. The claim of immunity by reason of the fact that it was owned by non-residents was at once disposed of. "If not exempt from taxation for other reasons," said the court (id., p. 524), "it cannot be exempt by reason of being owned by non-residents of the State. We take it to be a point settled beyond all contradiction or question, that a State has jurisdiction of all persons and things within its territory which do not belong to some other jurisdiction." The case was put upon the same basis as though the timber had been owned by residents of New Hampshire, and the question was treated as being one with respect to the point of time at which goods produced within the State, which are the subject of exportation to another State, cease to be liable to state taxation. It was concluded that these articles could be taxed by the State until, but not after, they had been actually started in the course of transportation to another State or had been committed to a carrier for that purpose.
The court said: "This question does not present the predicament of goods in course of transportation through a State, though detained for a time within the State by low water or other causes of delay, as was the case of the *513 logs cut in the State of Maine, the tax on which was abated by the Supreme Court of New Hampshire. Such goods are already in the course of commercial transportation, and are clearly under the protection of the Constitution. And so, we think, would the goods in question be when actually started in the course or transportation to another State, or delivered to a carrier for such transportation." (Id., p. 525.)
After pointing out the importance of clearly defining, so as to avoid all question, the time when state jurisdiction over the commodities of commerce begins and ends, and after commenting on the established rule as to the power of taxation with respect to goods which had come to their place of rest within the State, for disposal and use (Woodruff v. Parham, 8 Wall. 123; Brown v. Houston, 114 U.S. 622), the court thus restated its conclusion, in language applicable generally to the products of the State without distinction with respect to ownership by residents or non-residents: "But no definite rule has been adopted with regard to the point of time at which the taxing power of the State ceases as to goods exported to a foreign country or to another State. What we have already said, however, in relation to the products of a State intended for exportation to another State will indicate the view which seems to us the sound one on that subject, namely, that such goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey. We think that this must be the true rule on the subject. It seems to us untenable to hold that a crop or a herd is exempt from taxation merely because it is, by its owner, intended for exportation. If such were the rule in many States there would be nothing but the lands and real *514 estate to bear the taxes. Some of the Western States produce very little except wheat and corn, most of which is intended for export; and so of cotton in the Southern States. Certainly, as long as these products are on the lands which produce them, they are part of the general property of the State. And so we think they continue to be until they have entered upon their final journey for leaving the State and going into another State." (Id., pp. 527, 528.)
In General Oil Company v. Crain, 209 U.S. 211, the owner of the property, which was sought to be subjected to an inspection tax in Tennessee, was a Tennessee corporation. The property was oil contained in the company's tanks at Memphis. It was contended that the oil in these tanks was in transit from the place of manufacture in Pennsylvania to the place of sale in Arkansas and that the holding of it in Memphis was merely for the purpose of separation, distribution and reshipment, and was for no longer time than required by the nature of the business and the exigencies of transportation. The court considered the question from the standpoint of the general power of the State to tax. The oil was held to be taxable, but not upon the ground that its owner was domiciled in Tennessee. It was recognized that if the oil were actually in transit it would not be taxable. But it was found not to be in movement through the State; it had reached the destination of its first shipment and was held at Memphis for the business purposes and profits of the company. The principle applied was that announced in American Steel & Wire Co. v. Speed, 192 U.S. 500. See Kelley v. Rhoads, 188 U.S. 1, 5, 7; Diamond Match Co. v. Ontonagon, 188 U.S. 82, 93-96.
We come then to the question whether the grain, here involved, was moving in interstate commerce so that the imposition of the local tax may be said to be repugnant to the Federal power.
*515 The following facts are shown by the agreed statement: The grain had been shipped by the original owners who were residents of southern and western States, under contracts for its transportation to New York, Philadelphia and other eastern cities which reserved to the owners the right to remove it from the cars at Chicago "for the mere temporary purposes of inspecting, weighing, cleaning, clipping, drying, sacking, grading or mixing, or changing the ownership, consignee or destination" thereof. While the grain was in transit it was purchased by Bacon, the plaintiff in error, who succeeded to the rights of the vendors under the contracts of shipment. He was represented at the points of destination by agents through whom he disposed of grain and other commodities on the eastern markets, and the grain in question was purchased by him solely for the purpose of being sold in this way and with the intention to forward it according to the shipping contracts; it was not his intention to dispose of it in Illinois. Upon the arrival of the grain in Chicago, Bacon availed himself of the privilege reserved and removed it from the cars to his private elevator. This removal, it is said in the agreed statement of facts, was for the sole purposes of inspecting, weighing, grading, mixing, etc., and not for the purpose of changing its ownership, consignee or destination. It is added that the grain remained in the elevator only for such time as was reasonably necessary for the purposes above mentioned, and that immediately after these had been accomplished it was turned over to the railroad companies and was forwarded by them to the eastern cities in accordance with the original contracts of transportation. No part of the grain was sold or consumed in Illinois. It was while it was in Bacon's elevator in Chicago that it was included in the assessment as a part of his personal property.
But neither the fact that the grain had come from outside the State nor the intention of the owner to send it to *516 another State and there to dispose of it can be deemed controlling when the taxing power of the State of Illinois is concerned. The property was held by the plaintiff in error in Chicago for his own purposes and with full power of disposition. It was not being actually transported and it was not held by carriers for transportation. The plaintiff in error had withdrawn it from the carriers. The purpose of the withdrawal did not alter the fact that it had ceased to be transported and had been placed in his hands. He had the privilege of continuing the transportation under the shipping contracts, but of this he might avail himself or not as he chose. He might sell the grain in Illinois or forward it as he saw fit. It was in his possession with the control of absolute ownership. He intended to forward the grain after it had been inspected, graded, etc., but this intention, while the grain remained in his keeping and before it had been actually committed to the carriers for transportation, did not make it immune from local taxation. He had established a local facility in Chicago for his own benefit and while, through its employment, the grain was there at rest, there was no reason why it should not be included with his other property within the State in an assessment for taxation which was made in the usual way without discrimination. Woodruff v. Parham, supra; Brown v. Houston, supra; Coe v. Errol, supra; Pittsburgh & Southern Coal Co. v. Bates, 156 U.S. 577; Diamond Match Co. v. Ontonagon, supra; American Steel & Wire Co. v. Speed, supra; General Oil Co. v. Crain, supra.
The question, it should be observed, is not with respect to the extent of the power of Congress to regulate interstate commerce, but whether a particular exercise of state power in view of its nature and operation must be deemed to be in conflict with this paramount authority. American Steel & Wire Co. v. Speed, supra, pp. 521, 522. Thus, goods within the State may be made the subject of a *517 non-discriminatory tax though brought from another State and held by the consignee for sale in the original packages. Woodruff v. Parham, supra. In Brown v. Houston, supra, the coal on which the local tax was sustained had not been unloaded, but was lying in the boats in which it had been brought into the State and from which it was offered for sale. In Pittsburgh & Southern Coal Co. v. Bates, supra, coal had been shipped from Pittsburgh to Baton Rouge in barges which, to accommodate the owner's business, had been moored about nine miles above the point of destination. The coal while remaining on the barges under these conditions was held subject to taxation. In General Oil Co. v. Crain, supra, the oil which had been brought from Pennsylvania to Memphis, a distributing point, was held in tanks, one of which was kept for oil for which orders had been received from Arkansas, Louisiana and Mississippi prior to the shipment from Pennsylvania, and which had been shipped especially to fill such orders. The tank was marked "Oil Already Sold in Arkansas, Louisiana and Mississippi." The local tax upon this oil, which remained in Tennessee only long enough (a few days) to be properly distributed according to the orders, was sustained.
In the present case the property was held within the State for purposes deemed by the owner to be beneficial; it was not in actual transportation; and there was nothing inconsistent with the Federal authority in compelling the plaintiff in error to bear with respect to it, in common with other property in the State, his share of the expenses of the local government.
Judgment affirmed.
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786 P.2d 476 (1989)
The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of A.M. and C.M., Children,
and Concerning S.M., Respondent-Appellee, and
G.M., Respondent-Appellant.
No. 88CA0487.
Colorado Court of Appeals, Div. V.
August 24, 1989.
Rehearing Denied September 21, 1989.
Certiorari Denied January 8, 1990.
Julee Wilets, Asst. County Atty., Aurora, and Rebecca Parker, Asst. County Atty., Littleton, for petitioner-appellee.
Jo Dell Coning, guardian ad litem.
Karen S. Johnson, Denver, for respondent-appellee.
Ruston, Boyer & Ruston, P.C., Lloyd L. Boyer, Denver, for respondent-appellant.
Opinion by Judge HUME.
The father, G.M., appeals an order and the ensuing dispositional judgment that adjudicated his daughters, A.M. and C.M., dependent and neglected. The mother, S.M., does not appeal, but has filed a brief on appeal joining the People's position. We reverse and remand.
After the parents' marriage was dissolved by a Wyoming decree in 1979, the mother continued to reside in Wyoming, and the father moved to Colorado. The divorce decree awarded custody of A.M. and C.M. to the mother, but she later allowed *477 both children to reside in Colorado with their father.
In October 1987, A.M. reported to authorities that she had been physically and sexually abused by her father, and that she previously had been sexually abused by her mother's boyfriend in Wyoming. A petition in dependency and neglect was later filed with leave of court naming the father and the mother as respondents. The petition alleged that the children were dependent and neglected because A.M. "has been abused; that said abuse consists of sexual assault or molestation of the child by respondent [father]; that the child also reports that she was sexually assaulted in her mother's home in Wyoming; [and] that the children lack proper parental care through the actions or omissions of respondents."
At an initial hearing, a district court referee advised the parents of their rights and the possible consequences if the petition should be sustained. Upon the parents' request, the referee appointed separate counsel for the father and the mother. The referee further ordered that the temporary legal custody of both children remain in the Arapahoe County Department of Social Services. Subsequently, the parents, through their respective counsel, demanded a trial by jury at the adjudicatory hearing.
However, on the date set for the adjudicatory hearing, the mother, through her counsel, informed the district court that she wished to make a "no fault" admission to the allegations of the petition. The court then advised the mother of her rights, including her right to a trial by jury, and obtained her acknowledgement that by admitting the allegations in the petition she waived those rights.
After advising the mother of the possible consequences of her admission, the court found that she waived her rights voluntarily, knowingly, and intelligently. Over the father's objection, the court allowed the amendment of the petition by the addition of language that the alleged abusive conduct and lack of parental care had occurred "through no fault of respondent mother." Upon accepting her "no fault" admission, the court refused the father's request to cross-examine the mother and did not receive any other evidence on the issue of dependency and neglect.
Relying on People in Interest of P.D.S., 669 P.2d 627 (Colo.App.1983), the court entered an order adjudicating the children dependent and neglected. At the dispositional hearing, the court entered an order adopting a treatment plan, thus making the decision final for purposes of appeal. The father now appeals the adjudicatory order and the final dispositional judgment.
I.
The father initially contends that the adjudication must be reversed because the petition was facially defective and untimely filed. We disagree.
A.
Section 19-3-206, C.R.S. (1988 Cum. Supp.) provides that in dependency and neglect proceedings, "the petitioner shall be represented by a county attorney, special county attorney, or city attorney of a city and county." Former C.R.J.P. 1, then in effect, provided that such proceedings "shall be conducted according to the Colorado Rules of Civil Procedure" when they are not governed by the C.R.J.P. or by The Colorado Children's Code. C.R.C.P. 11 requires every pleading of a party represented by counsel to be signed by an attorney of record.
Here, the verified dependency petition was signed only by a caseworker for the Arapahoe County Department of Social Services rather than by counsel who represented that department. The father contends that this formal defect rendered the petition invalid and that the court's error in denying his motion to dismiss requires reversal of the adjudication. We are not persuaded.
Section 19-3-308(4)(b), C.R.S. (1988 Cum. Supp.) requires a county department of social services to investigate all reports of child abuse and neglect and authorizes the department to "file a petition in the juvenile *478 court or the district court with juvenile jurisdiction" on behalf of an abused child "if the department reasonably believes an incident of abuse ... has occurred." Moreover, § 19-3-501(1), C.R.S. (1988 Cum. Supp.) authorizes the department to inform the juvenile court of its belief that an abused child appears to be within its jurisdiction, and further provides that the court may then authorize the filing of a dependency petition after such further investigation as the court might deem necessary. Finally, § 19-3-501(2)(a), C.R.S. (1988 Cum. Supp.) provides that upon receipt of a preliminary investigation report made by the county department of social services indicating child abuse, the juvenile court shall authorize and may direct the filing of a dependency and neglect petition.
Here, a preliminary investigation was made by the county department of social services upon an abuse report made by a peace officer. The department, in turn, took A.M. into protective custody, notified the court, and arranged a timely shelter hearing before the court. At the conclusion of that hearing, and after considering the department's preliminary investigation report, the court authorized the filing of a dependency petition and ordered that A.M. remain in the protective custody of the department.
The department was in fact represented by the assistant county attorney at all proceedings before the court. Also, that attorney entered her appearance for the department on the record in open court, thus satisfying the requirements of § 19-3-206, C.R.S. (1988 Cum.Supp.). See former C.R. J.P. 4(a) (1984 Repl.Vol. 7B).
Thus, any error in the department's failure to follow the requirement of C.R.C.P. 11 for an attorney's signature was harmless under the circumstances appearing here, and does not require reversal.
B.
The father also contends that, because the petition was not filed within seven working days after A.M. was taken into protective custody, the court was without subject matter jurisdiction over the dependency and neglect proceedings. Again we disagree.
C.R.J.P. 7(c), as then in effect, provided that if a dependency and neglect petition "is not filed within seven working days ... after a child is taken into custody ... said child shall be released upon order of court...." Cf. C.R.J.P. 4, as now in effect (petition must be filed within 10 working days unless otherwise directed by the court).
Here, A.M. was taken into temporary protective custody on October 24, 1987, and the shelter hearing was held on October 26, 1987, at which time the court authorized the filing of a dependency and neglect petition. The petition was subsequently filed on November 13, 1987.
The father did not object to the continuation of the out-of-home placement order beyond the seven-day limit, nor did he request that the children be released from protective custody. After the petition was filed, he did object to the particular foster home in which the children were placed, but he did not object to their remaining in protective custody. However, he now contends that the violation of C.R.J.P. 7 deprived the court of subject matter jurisdiction.
Contrary to the father's contention, compliance with C.R.J.P. 7 is not a jurisdictional prerequisite to the commencement of juvenile proceedings. That rule provides its own remedy for its violation: release of the child from the temporary custodial order in the absence of good cause shown for a reasonable extension. The purpose of the rule is to avoid unnecessarily prolonged out-of-home custodial care for children pending the filing of a formal juvenile petition. The rule is not, however, self executing. Either an interested party must move the court for an order for a child's release from custody, or the court may, sua sponte, order such release.
Even if the court orders the release of a child from protective shelter or detention pending the filing of a juvenile petition, the People's right to file a petition is unaffected, and the court's jurisdiction over the *479 subject matter of such a late-filed petition is unimpaired. See P.F.M. v. District Court, 184 Colo. 393, 520 P.2d 742 (1974).
Thus, we conclude that the court did not err in denying the father's motion to dismiss the dependency and neglect petition for the People's non-compliance with C.R. J.P. 7(c).
II.
The father next contends that the court erred in entering an order adjudicating the children dependent and neglected without conducting an adjudicatory hearing before a jury. We agree.
The purpose of an adjudicatory hearing is to determine whether the factual allegations in the dependency and neglect petition are supported by a preponderance of the evidence, and whether the status of the subject child or children warrants intrusive protective or corrective state intervention into the familial relationship. See §§ 19-3-102 and 19-3-505(1), C.R.S. (1988 Cum. Supp.); People in Interest of O.E.P., 654 P.2d 312 (Colo.1982).
Section 19-3-502(5), C.R.S. (1988 Cum. Supp.) requires that the petitioner in a dependency and neglect proceeding name as a party respondent any parent alleged to have abused or neglected the child or children whose status is at issue. A respondent parent has the right to a jury determination whether disputed factual averments of a dependency petition are proved at the adjudicatory hearing. Section 19-3-202, C.R.S. (1988 Cum.Supp.).
Any respondent parent may elect to waive his or her jury right, and may confess, stipulate, or elect not to contest part or all of the allegations in a dependency petition. If the court accepts such confessions, stipulations, or admissions, then the People may be relieved from the burden of proving such admitted averments at the adjudicatory hearing. However, such an admission by one parent is not necessarily dispositive of allegations disputed by other named respondents.
Here, the mother admitted that A.M. had been assaulted in her home in Wyoming and did not contest that the children lacked proper parental care through no fault of her own. She also purported to admit that A.M. had been abused by having been sexually assaulted or molested by the father. The mother's admissions were not made under oath, and no evidence was taken by the court to substantiate them. The record contains no factual basis for the mother's purported knowledge concerning the "admitted" lack of proper parental care in the father's home, or concerning the alleged assault on A.M. by the father.
Thus, although the court did not err in accepting the mother's admissions, we conclude that those admissions, while binding upon her, were legally insufficient to sustain the petition's averments concerning the children's then existing status in the face of the father's denial.
The father, as physical custodian of the children, had denied that the children lacked proper parental care in his home or that he had assaulted or molested A.M. He also had independent rights to require that the petition's factual averments be proven by a preponderance of credible evidence before a jury, and he did nothing to forfeit or surrender those rights. Essential allegations of the petition remained in dispute after the acceptance of the mother's admission, and resolution of those issues required a proper hearing prior to the entry of an adjudicatory order. See § 19-3-505, C.R.S. (1988 Cum.Supp.).
The trial court's reliance on People in Interest of P.D.S., supra, to support the adjudicatory order, is misplaced. In that case, both parents had admitted that P.D.S. was dependent or neglected, but the mother's was a "no fault" admission. While she had admitted P.D.S.'s dependent or neglected status, she had done so pursuant to a stipulation that she was not "at fault" in causing that status. Subsequently, she objected to the court's order for her participation in a court-ordered treatment plan for P.D.S., because the child had not been adjudged dependent or neglected "as to her." Under those circumstances, we held that adjudications are not made "as to" individual parental faults, but only to determine *480 the status of the child. Since both parents had admitted P.D.S.'s dependent and neglected status, the adjudication was sustained. We did not there decide that one respondent parent's "no fault" admission is automatically sufficient to support an adjudication of dependency or neglect in the face of the other respondent parent's denial of the allegation in the dependency petition.
To the contrary, in People in Interest of T.R.W., 759 P.2d 768 (Colo.App.1988), we held that a non-custodial parent's "no fault" admission was an insufficient basis to sustain a dependency adjudication when a jury found that the petition's allegations of abuse by the custodial parent were "not sustained" by evidence presented at an adjudicatory hearing. In that case we noted that the allowance of such an adjudication would permit dependency and neglect proceedings to be used for manipulative purposes by one parent against the interests of the other to the possible detriment of the best interests of the children.
Here, both children had resided with the father for a considerable period prior to commencement of these proceedings. It was the father's alleged misconduct toward A.M. that precipitated the filing of the petition, and the present status of the children involved their alleged lack of parental care in the father's home environment.
Also, despite the mother's claim that she was the children's legal custodian, she had allowed them to reside with the father and was not directly involved in their routine care and control in his home. The mother's minimal involvement with the children's present status was underscored by the department's recommendation, and the court's adoption, of a treatment plan that essentially allowed her to "opt out" of active participation in various individual and family counseling and therapy programs. The treatment plan was designed to reintegrate the children into the father's home, and the mother's home was not considered as a placement alternative.
The father's denial of the children's alleged status and of the underlying facts alleged in support of that status was simply ignored by the court. By basing the adjudication solely upon the mother's "no fault" admission, the court effectively denied the father his day in court, deprived him of the opportunity to require the presentation of and to challenge evidence offered to sustain the petition, to confront and cross-examine the mother as to the basis for her ostensible belief as to the children's present status, and to present evidence controverting the petition's allegations. Yet, despite having been denied those fundamental rights, the father's home and his relationship with his children were made the focus of the state's intrusive intervention under the treatment plan. Under these circumstances, the adjudicatory order and the ensuing dispositional judgment cannot stand.
III.
We reject the father's contention that the court lost jurisdiction over the subject matter of this action by its failure to hold an adjudicatory hearing within 90 days after the petition was filed, and by holding the dispositional hearing more than 45 days after entry of the adjudicatory order. See People in Interest of S.B., 742 P.2d 935 (Colo.App.1987).
The trial court's order adjudicating A.M. and C.M. dependent and neglected and the ensuing dispositional judgment are reversed. The cause is remanded with instructions that the court conduct an adjudicatory hearing before a jury to resolve the issues framed by the allegations contained in the petition and the father's denials as provided by law.
CRISWELL and REED, JJ., concur.
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FILED
NOT FOR PUBLICATION APR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
K. S.; et al., No. 10-15099
Plaintiffs - Appellants, D.C. No. 3:06-cv-07218-SI
v.
MEMORANDUM *
FREMONT UNIFIED SCHOOL
DISTRICT,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted March 14, 2011
San Francisco, California
Before: PAEZ, BERZON, and BEA, Circuit Judges.
In this Individuals with Disabilities Education Act (“IDEA”) lawsuit, K.S.
appeals the district court’s grant of summary judgment in favor of the defendant
Fremont Unified School District (the “District”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
To be eligible for federal education funding, the IDEA requires a state to
have policies and procedures in place to ensure that “[a] free appropriate public
education is available to all children with disabilities residing in the State.” 20
U.S.C. § 1412(a)(1)(A). The IDEA does not require that the state adhere to any
particular educational approach. See Adams v. Oregon, 195 F.3d 1141, 1145 (9th
Cir. 1999). Rather, the IDEA requires that the state’s program provide specialized
instruction “supported by such services as are necessary to permit the child ‘to
benefit’ from the instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 189 (1982).
1. K.S. first contends that the district court erred in giving deference to the
ALJ’s 40-page original decision and subsequent 29-page remand decision.
Specifically, K.S. alleges that the district court acted as a “rubber stamp” with
regard to the administrative law judge’s (“ALJ”) credibility determinations and
findings that K.S. made meaningful progress in achieving the educational and
occupational goals established in K.S.’s individualized education plans (“IEPs”)
for the years in question. We conclude, however, that the district court did not
abuse its discretion by giving due weight to the detailed decisions of the ALJ. See
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891–92 (9th Cir. 1995).
Here, the ALJ found that the District’s IEPs were consistent with IDEA’s
objectives because they were effectively tailored to K.S.’s unique needs, and were
2
based upon accepted teaching principles in the field of autism education. These
findings are consistent with the opinions of several of the experts who testified at
the administrative hearings that K.S.’s IEPs were appropriate and resulted in
meaningful benefit for K.S. given her cognitive impairment. See, e.g., Testimony
of Dr. Bryna Siegel Admin. R. at 4271–72.
2. Next, K.S. argues that K.S.’s IEPs failed to provide a “meaningful” benefit
as required by the IDEA. See J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951
(9th Cir. 2010) (“The proper standard to determine whether a disabled child has
received a free appropriate education is the ‘educational benefit’ standard set forth
by the Supreme Court in Rowley.”). In light of all the record evidence, the district
court’s findings are sufficient to support its conclusion that the District’s IEPs
provided “some educational benefit” for K.S. given her severe cognitive
impairment. Rowley, 458 U.S. at 200–01; see also Adams, 195 F.3d 1149–50.
Stated differently, the record evidence supports the district court’s conclusion that
K.S.’s IEPs addressed her unique educational needs and provided appropriate goals
to achieve some educational benefit. See 20 U.S.C. § 1414(d).
3. K.S. also contends that the district court overlooked the District’s failure to
assess her cognitive capacity. This argument lacks merit, as the record evidence
demonstrates that the District attempted to assess K.S.’s cognitive ability but was
3
unable to do so because of her distractibility and her limited ability to maintain
social interaction. Contrary to K.S.’s argument, the evidence shows that the IEP
teams were aware of K.S.’s cognitive impairment, and properly accounted for her
limited cognitive abilities in developing her IEPs.
4. K.S. contends an IQ score is a “legal prerequisite” to a determination that a
student is cognitively impaired. Thus, K.S. argues that because neither the district
nor her private testers were able to obtain an IQ score for her, the ALJ’s
determination that K.S. was cognitively impaired and could not make greater
progress towards her IEP goals was legal error. This contention is without legal
basis. The ALJ’s determination that K.S. had a cognitive disability was valid
based on expert testimony, her results on alternative cognitive tests, her IEPs, and
her progress reports from school. See 20 U.S.C. § 1414(b)(2)(B) (local education
agency “shall not use any single measure or assessment as the sole criterion for
determining whether a child is a child with a disability or determining an
appropriate educational program for the child”).
5. K.S. argues that the District’s educational program, as reflected in the IEPs,
violated the IDEA because it was not based on Applied Behavior Analysis therapy
techniques. In Adams, we found that an eclectic approach similar to the one used
by the District here met the IDEA’s substantive requirements. See Adams, 195
4
F.3d at 1145. We need not decide whether the District made the best decision or a
correct decision; we need only decide whether its decision satisfied the
requirements of the IDEA. In doing so, we “must be careful to avoid imposing
[the court’s] view of preferable education methods upon the State.” Rowley, 458
U.S. at 207. Given the deference we must extend to school officials to tailor an
educational program to the needs of the child, we conclude that the District’s IEPs
met the IDEA’s substantive requirements. See J.W. ex rel. J.E.W. v. Fresno
Unified Sch. Dist., 626 F.3d 431, 450 (9th Cir. 2010).
6. K.S. argues that the district court’s remand order was legal error because it
contravened the “snapshot rule” recognized in Adams. Specifically, K.S. contends
that the remand order allowed the ALJ to use findings from the 2009 hearing to
conclude that, during the relevant years at issue, K.S. had a cognitive impairment.
We disagree. In Adams, we considered whether the district court erred in using a
student’s subsequent progress as a measure of an IEP’s adequacy. 195 F.3d at
1149. Here, neither the district court nor the ALJ relied upon any subsequent
progress by K.S. to determine whether K.S.’s IEPs were appropriate. Rather, the
court’s and the ALJ’s findings regarding K.S.’s cognitive capacity were based on
the documentary and testimonial evidence from the school years at issue.
5
Accordingly, we conclude that the district court did not err in remanding K.S.’s
case to the ALJ for further proceedings.
7. Finally K.S. contends that the ALJ was biased. As support for this
argument, K.S. relies on the handwritten notes the ALJ took during the hearings.
Contrary to K.S.’s assertion, there is nothing in the ALJ’s notes to show that he
exhibited bias toward K.S. or reached a final decision before the conclusion of the
case. Rather, the ALJ’s notes simply detail his impressions during the hearings.
Moreover, the ALJ’s two detailed decisions demonstrate that his review of this
case was thorough, well-reasoned, and supported by a preponderance of the record
evidence.
AFFIRMED.
6
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"pile_set_name": "FreeLaw"
} |
331 F.3d 1189
Louis NAPIER, Plaintiff-Appellant,v.Karen J. PRESLICKA, Jacksonville Sheriff's Officer, Sandra M. Pomeroy, Jacksonville Sheriff's Officer, # 6720, Defendants-Appellees.
No. 00-13064.
United States Court of Appeals, Eleventh Circuit.
May 27, 2003.
Randall C. Berg, Jr. (Court-Appointed), Florida Justice Institute, Inc., Miami, FL, for Plaintiff-Appellant.
T.A. Delegal, III, Delegal & Merrett, Scott Douglas Makar, Assistant General Counsel, Appellate and Local Government Law Division, Office of General Counsel, Jacksonville, FL, for Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Florida (No. 00-00156-CV-J-20A); Harvey E. Schlesinger, Judge.
ON PETITION FOR REHEARING EN BANC
(Opinion Dec. 10, 2002, 11th Cir., 314 F.3d 528)
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
BY THE COURT:
1
The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Petition for Rehearing En Banc is DENIED.
2
BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:
3
I believe the issue in this case merits en banc consideration. While in prison, Napier filed a § 1983 suit against two deputies based on activities which occurred months before the events leading to his present confinement. Thus his lawsuit has nothing to do with the circumstances of his present incarceration. The Napier panel interpreted 42 U.S.C. § 1997e(e), a provision of the 1995 Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"), to bar Napier's claim, holding that when § 1997e(e) states that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury," the word "custody" refers to any instance of "Miranda custody," including prior, unrelated arrests. See Napier v. Preslicka, 314 F.3d 528, 532-34 (11th Cir. 2002). This unjustified expansion of § 1997e(e) to prevent prisoners from seeking remedies for violations that predate and have no relation to the events leading to their current incarceration finds little support in the language, structure or history of the PLRA. The panel's holding also conflicts with this Court's previous interpretations of § 1997e(e) and has troubling implications that reach far beyond the specific facts of this case. Accordingly, I believe that en banc review of the panel's decision is warranted to reconsider the appropriate reach of § 1997e(e).
I. The Panel's Holding Finds Little Support in the Language, Structure, or History of the PLRA
4
The starting point for statutory interpretation is the language of the statute itself. United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999) (citing Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)). When the meaning of a statute is unambiguous, there is no need to examine legislative history, since "we do not resort to legislative history to cloud a statutory text that is clear." Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). When a statute is unclear or ambiguous, however, resort to legislative history is required. Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991); Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Moreover, whether statutory language is clear or ambiguous cannot be determined apart from its circumstances. "In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). Accord Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) ("We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme."); Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) ("The meaning of statutory language, plain or not, depends on context."); DBB, Inc., 180 F.3d at 1281 ("We do not look at one word or term in isolation, but instead we look to the entire statutory context.").
5
The Napier panel's interpretation of 42 U.S.C. § 1997e(e) runs counter to these well-established principles. Section 1997e(e) states that:
6
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
7
42 U.S.C. § 1997e(e). The key word for our purposes is "custody." Does its extension include arrests occurring years before the events leading up to a prisoner's current incarceration, so that, for example, an individual who was falsely arrested in 1996 and subsequently convicted and imprisoned for unrelated conduct in 1999 would be precluded from seeking relief for the 1996 violation? Or did Congress intend "custody" in the context of § 1997e(e) to refer merely to "prison custody," as its antecedent "a prisoner confined in a jail, prison, or other correctional facility" implies?
8
Relying on "the plain language" of § 1997e(e), the Napier panel opts for the former, vastly more expansive interpretation, holding that the word "custody" in § 1997e(e) encompasses all of a prisoner's prior arrests, whether or not they are related his current confinement "in a jail, prison, or other correctional facility." Napier, 314 F.3d at 532-34. In my judgment, this holding depends on interpreting a statutory word out of its context in exactly the manner cases such as Brown & Williamson Tobacco Corp., Bailey, Gardner, and DBB, Inc. warn against.
9
The panel's decision involves two steps. First, the panel presumes that Congress used "custody" in § 1997e(e) "in the settled sense" to mean "Miranda custody" or any "`formal arrest or restraint on freedom of movement.'" Id. at 532-33 (quoting Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). Accordingly, the panel finds that § 1997e(e) applies to prisoner lawsuits that allege injuries suffered while in custody "even if such custody occurred outside prison walls." Id. at 533. Second, because § 1997e(e) "by its plain language does not provide a temporal restriction on the custodial episode to which it relates," the panel determines that its scope extends even further to include prior, unrelated arrests, such as Napier's. Id. at 533-34.
10
The panel's reasoning is unsupported and unpersuasive. As the panel implicitly concedes, "custody" as it occurs in § 1997e(e) is plainly ambiguous.1 Indeed, the government's attorney repeatedly acknowledged this ambiguity at oral argument.2 Further, this Court has repeatedly assumed that "custody" as it is used in § 1997e(e) refers to prison custody.3 The panel's "plain language" argument would imply that these paraphrases are not only incorrect but inconceivable.4
11
Moreover, the panel's reliance on "the settled legal meaning" of "custody" is misplaced.5 Unlike the word "brought," which this Court noted in Harris had a "long history of established meaning," 216 F.3d at 974, the judicial definition of "custody" has been anything but settled. Instead, it has been fluid and context-dependent.6 Since there is no single, settled legal meaning of "custody," the notion that Congress should be credited with knowing and applying that meaning is inapposite.
12
Rather than invoke the plain meaning doctrine where it does not apply, thereby expanding the scope of a statute Congress may have meant to apply more narrowly, this Court should candidly acknowledge that § 1997e(e) as written is open to several different interpretations, only some of which would preclude Napier's lawsuit. It should then apply a different interpretive canon to determine which of those competing interpretations is most plausible. This case is a textbook example of the principle that the meaning of an ambiguous word is known by its companions—the doctrine of noscitur a sociis. Both the Supreme Court and this Court have frequently relied on this commonsense principle to ascertain the meaning of ambiguous statutory provisions "in order to avoid the giving of unintended breadth to the Acts of Congress." Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961). See, e.g., Gutierrez v. Camacho, 528 U.S. 250, 255, 120 S.Ct. 740, 145 L.Ed.2d 747 (2000); Gustafson v. Alloyd Co., 513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995); Clay v. Riverwood Intern. Corp., 157 F.3d 1259, 1266 (11th Cir. 1998); City of Delray Beach, FL v. Agriculture Ins. Co., 85 F.3d 1527, 1534 (11th Cir.1996). The panel neglects to do likewise because it insists that the meaning of § 1997e(e) is clear "without reference to the other parts of the statute." Napier, 314 F.3d at 533. But whether a statutory provision is clear or ambiguous cannot be determined apart from its context. See Brown & Williamson Tobacco Corp., 529 U.S. at 132, 120 S.Ct. 1291; Bailey, 516 U.S. at 145, 116 S.Ct. 501; Gardner, 513 U.S. at 118, 115 S.Ct. 552; DBB, Inc., 180 F.3d at 1281. The panel's reliance on the plain meaning doctrine to justify interpreting § 1997e(e) apart from the remaining provisions of 42 U.S.C. § 1997e puts the cart before the horse.
13
In his dissent to the panel's decision, Judge Propst reviewed each of the major provisions of § 1997e and found that, viewed as a whole, they suggest that Congress intended "in custody" in § 1997e(e) to mean at least "prison custody," if not "prison custody related to the present incarceration." Napier, 314 F.3d at 535. I agree with this conclusion, which is only reinforced when § 1997e(e) is read in light of the PLRA's legislative history. There is no evidence that Congress meant the PLRA to restrict lawsuits unrelated to prison conditions. All of the examples of frivolous litigation cited in the record involve prison conditions; none involves custody occurring "outside prison walls," let alone arrests unrelated to a prisoner's current confinement. See 141 Cong. Rec. S7498-01 (daily ed. May 25, 1995) (Statements of Senators Dole and Kyl); 141 Cong. Rec. S14408-01 (daily ed. Sept. 27, 1995) (Statements of Senators Dole, Hatch, Kyl, and Abraham); 141 Cong. Rec. S14754-01 (daily ed. Dec. 4, 1995) (Conference Report on H.R.2076).7
14
In sum, the Napier panel's expansive interpretation of § 1997e(e) finds little support in the language, structure, or history of the PLRA. By confining itself to examining a particular statutory word in isolation, the panel unjustifiably disregards the "`fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.'" Brown & Williamson Tobacco Corp., 529 U.S. at 133, 120 S.Ct. 1291 (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)). Read in context, § 1997e(e) is plainly ambiguous; furthermore, its most plausible interpretation suggests Congress meant "custody" to refer to prison custody. The PLRA's legislative history reinforces this conclusion, casting further doubt on the panel's dubious interpretation.
II. The Panel's Holding Conflicts with This Court's Previous Interpretations of § 1997e(e)
15
As indicated, the panel's holding that the "plain meaning" of § 1997e(e) precludes equating "custody" with "prison custody" or treating "suffered while in custody" as synonymous with "suffered while incarcerated" or "suffered while confined in a jail, prison, or other correctional facility" conflicts with this Court's previous interpretations of § 1997e(e). See Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317 (11th Cir.2002) (interpreting § 1997e(e) to preclude only lawsuits relating to prison conditions); Harris v. Garner, 216 F.3d 970, 979-80 (11th Cir.2000) (en banc) (paraphrasing "suffered while in custody" as "suffered while confined"); Harris v. Garner, 190 F.3d 1279, 1284-85 (11th Cir.1999) (paraphrasing "suffered while in custody" both as "suffered while they were prisoners" and as "suffered while they were incarcerated"). Mitchell in particular appears in direct conflict with Napier, further warranting en banc review.
16
In Mitchell, a federal prisoner sued cigarette manufacturers in state court on state law claims. After defendants removed to federal court, the district court dismissed the suit because the prisoner did not allege a physical injury as required by § 1997e(e). The Eleventh Circuit reversed, holding that " § 1997e(e) does not apply to prisoner lawsuits unrelated to prison conditions filed in state court based solely on state law and removed by defendants to federal court based on diversity jurisdiction." Mitchell, 294 F.3d at 1312. By its very language, this holding does not extend to all state law-claims removed from state court on the basis of diversity jurisdiction, but only to such claims that are "unrelated to prison conditions." Id. The Court made the importance of this qualification quite clear:
17
Mitchell raises several challenges to the district court's application of § 1997e(e) to this matter. The only contention that is dispositive, however, is his argument that § 1997e(e) does not apply to actions that were removed from state court. We agree, insofar as the action filed in state court by Mitchell solely alleged state-law claims unrelated to prison conditions.
18
Id. at 1315 (emphasis added).
19
After Mitchell, a defendant sued in state court on state law claims related to prison conditions who removes to federal court is not automatically precluded from moving to dismiss. For example, a government contractor responsible for providing prisoner meals who is sued for mental injury allegedly caused by serving tasteless or rotten food is not necessarily barred by Mitchell from removing to federal court and moving to dismiss, since the alleged injury relates to prison conditions. Hence the qualification "unrelated to prison conditions," which Mitchell uses on three separate occasions, see id. at 1312, 1315, 1317, is properly considered part of that case's holding, which does in turn conflict with Napier.
III. The Panel's Holding Has Troubling Implications That Reach Far Beyond the Specific Facts of This Case
20
In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Supreme Court held that a parolee was in custody within the meaning of 28 U.S.C. §§ 2241, a provision of the federal habeas corpus statute. Likewise, in Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), the Supreme Court held that a person released on his own recognizance was in custody within the meaning of 28 U.S.C. §§ 2241(c)(3) and 2254(a). See also Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). Hence, as we observed in Duvallon v. Florida, 691 F.2d 483 (11th Cir.1982), "[i]n the context of habeas proceedings, the `in custody' requirement may also be met where a petitioner is on probation, parole, or bail." Id. at 485 (citing Hensley, 411 U.S. at 349, 93 S.Ct. 1571).
21
As a result of these decisions, the Napier panel's already expansive interpretation of § 1997e(e) has troubling implications that reach far beyond the narrow confines of this case. In particular, as Judge Propst warns in his dissenting opinion, the panel's holding implies that prisoners could be precluded from enforcing violations of their civil rights that occurred while they were released on probation, parole, or bail. For example, a prisoner would be unable to sue her employer in federal court for mental injury associated with sexual harassment or racial discrimination, if the alleged injury occurred while she was "in custody" by virtue of an unexpired term of probation or parole, or while she was released on bail. Napier, 314 F.3d at 536 (Propst, J., dissenting).
22
This is just one of many such examples. If the panel is correct, then prisoners could be prevented from pursuing an indefinite number of legal claims, against both public and private actors, having absolutely nothing to do with the conditions of their current incarceration. For example, they would be precluded from seeking recovery for mental injury stemming from humiliating, torturous, or otherwise illegal pre-detention searches and interrogations, as well as from, inter alia, false imprisonment, defamation, invasion of privacy, intentional infliction of emotional distress, malicious prosecution, breach of contract, and many similar claims. I do not believe Congress intended to negate such rights. "[I]f Congress had intended this one provision at § 1997e(e)" to have these profound effects, "it would have clearly said so." Id. at 537, n. 6 (Propst, J., dissenting).
IV. This Issue is Exceptionally Important and Warrants En Banc Review
23
According to Rule 35 of the Federal Rules of Appellate Procedure, en banc review is warranted if such a hearing "is necessary to secure or maintain uniformity of the court's decisions" or "involves a question of exceptional importance." F.R.A.P. 35. Eleventh Circuit Rule 35-3, our companion to F.R.A.P. 35, likewise describes en banc consideration as a procedure intended to alert the entire court to "a precedent-setting error of exceptional importance" or "a panel opinion that is allegedly in direct conflict with precedent of the Supreme Court or of this circuit." 11th Cir. R. 35-3. In my judgment, Napier involves exactly the type of errors these rules are intended to address.
24
For the forgoing reasons, I respectfully dissent from the Court's denial of rehearing en banc in this case.
Notes:
1
As the panel majority acknowledges, "custody" as it occurs in § 1997e(e) could refer to any formal arrest or restraint on freedom of movement related to a prisoner's current incarceration (first interpretation), or it could refer to any such arrest or restraint relatedor unrelated to his current incarceration (second interpretation). Napier, 314 F.3d at 532-34. Additionally, it also could refer to a prisoner's current "prison custody," i.e., to his current incarceration in what § 1997e(e) terms "a jail, prison, or other correctional facility" (third interpretation). Id. at 532. As Judge Propst observes in his dissenting opinion, "custody" also could refer to any prison custody, i.e., to a prisoner's current or previous confinement in a correctional facility (fourth interpretation). Id. at 535. Finally, in light of Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and its progeny, § 1997e(e)'s custody requirement could conceivably be satisfied where a petitioner alleges injuries that were suffered while he was released on probation, parole, or bail (fifth interpretation). Id. at 536. Only under the second interpretation—which the panel majority insists is mandated by § 1997e(e)'s "plain language"—would Napier's lawsuit necessarily be precluded.
2
See tape of oral argument in Napier v. Preslicka, No. 00-13064, 9/11/02.
3
See, e.g., Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317 (11th Cir.2002) ("We conclude that § 1997e(e) does not apply to prisoner lawsuits unrelated to prison conditions filed in state court based solely on state law and removed by defendants to federal court based on diversity jurisdiction."); Harris v. Garner, 216 F.3d 970, 979-80 (11th Cir.2000) (en banc) ("Because section 1997e(e) applies only to claims filed while an inmate is confined, it does not prevent a former prisoner from filing after release a monetary damages claim for mental and emotional injury suffered while confined, without a prior showing of physical injury."); Harris v. Garner, 190 F.3d 1279, 1285 (11th Cir.1999) ("In light of the overwhelming clarity of the statutory text, we join the Seventh Circuit in holding that section 1997e(e) applies only to prisoners who are incarcerated at the time they seek relief, and not to former prisoners who seek damages for injuries suffered while they were incarcerated.") (emphases added).
4
The panel attempts to defend its conclusion that § 1997e(e)unambiguously precludes lawsuits by prisoners for injuries suffered during arrests unrelated to their present confinement by reasoning that had Congress intended otherwise, it could have drafted § 1997e(e) more clearly:
One could argue that the phrase "in custody" is meant to refer to the present custody, that custody for which the prisoner is in fact currently a prisoner, or that the phrase "in custody" is meant to refer, without reference to the other parts of the statute, to past or present instances of custody. The first interpretation might reflect a narrow purpose of the PLRA to reduce frivolous prison condition litigation, those suits brought by prisoners to challenge what they view as unacceptable or, indeed, unconstitutional circumstances of their present confinement. However, the first interpretation is not supported by the plain language of the statute.... Congress could have drafted the statute to say "while thus imprisoned" or "while in that custody" or "during the aforementioned confinement" to specifically tie the clause in question to the antecedent in order to ensure that the first interpretation was followed. Even more simply, Congress could have used "while imprisoned" as it uses "prisoner" earlier in the statute if its intent was to limit the claims subject to the PLRA to those arising from harm accrued only in that limited venue.
Napier, 314 F.3d at 533. The argument is plainly fallacious. That Congress could have drafted a less ambiguous statute does not prove that this statute is unambiguous. Moreover, the panel's reasoning is invalid even on its own terms. Had Congress replaced "while in custody" with any of the panel's proposed substitutions, then that phrase's extension would be fixed by its antecedent, "confined in a jail, prison, or other correctional facility." In that case, however, what the panel calls "the first interpretation" of § 1997e(e), according to which "custody" is meant to refer to "that custody for which the prisoner is in fact currently a prisoner," id., would not be ensured but excluded, since such custody would (normally) not occur during confinement "in a jail, prison, or other correctional facility." Simply put, if Congress intended related but not unrelated arrests to fall within the scope of § 1997e(e), it necessarily would prefer that provision's current language to any of the panel's proposed alternatives.
5
"Congress is presumed to know the settled legal meaning of the terms it uses in enacted statutes and to use those terms in the settled sense."Napier, 314 F.3d at 532.
6
Compare, for example,Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (equating custody "for purposes of receiving Miranda protection" with "formal arrest or restraint on freedom of movement") with Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) (holding that a person released on his own recognizance was "in custody" within the meaning of 28 U.S.C. §§ 2241(c)(3) and 2254(a)); Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (same); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding that a parolee was "in custody" within the meaning of 28 U.S.C. §§ 2241); McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934) (equating custody with incarceration or detention in prison); and Wales v. Whitney, 114 U.S. 564, 571, 5 S.Ct. 1050, 29 L.Ed. 277 (1885) (equating custody with "any physical restraint," including "[w]ives restrained by husbands, children withheld from the proper parent or guardian, [and] persons held under arbitrary custody by private individuals").
7
The PLRA was introduced in May 1995 by Senators Dole and Kyl as Senate Resolution 866. In his remarks, Senator Dole made clear that the target of the proposed legislation was frivolous lawsuits involving prison conditionsSee 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (Statement of Senator Dole) ("Prisoners have filed lawsuits claiming such grievances as insufficient storage locker space, being prohibited from attending a wedding anniversary party, and yes, being served creamy peanut butter instead of the chunky variety they had ordered."). Senator Kyl reiterated this limitation in his remarks by relying on a Justice Department report on § 1983 litigation entitled "Challenging the Conditions of Prisons and Jails." See 141 Cong. Rec. S7498-01, S7527 (daily ed. May 25, 1995) (Statement of Senator Kyl). Senator Kyl also placed into the record two newspaper editorials describing the rationale of the Dole-Kyl bill. The first, a column published in The Wall Street Journal, referred exclusively to "suits initiated by people claiming a deprivation of their rights while in prison." 141 Cong. Rec. S7498-01, S7527 (daily ed. May 25, 1995) (Article from The Wall Street Journal) (Attached to the Congressional Record) (emphasis added). The second, an editorial appearing in the Tucson Citizen, listed sixteen examples of the type of frivolous prison lawsuit that the Arizona statute on which the Dole-Kyl bill was modeled was intended to deter, all of which involved prison conditions. See 141 Cong. Rec. S7498-01, S7527-28 (daily ed. May 25, 1995) (Article from the Tucson Citizen) (Attached to the Congressional Record).
In Harris, this Court observed that "[b]ecause Congress enacted [the] PLRA as a rider to an appropriations bill, floor debate is more indicative of legislative intent than it otherwise would be." 216 F.3d at 977 n. 5 (quoting Alexander v. Hawk, 159 F.3d 1321, 1325 n. 8 (11th Cir.1998)). We also said that "[t]he statements of Senators Dole and Kyl are due special consideration, because they ... were the architects of the PLRA." Id.
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IN THE COURT OF APPEALS OF IOWA
No. 19-1834
Filed April 15, 2020
IN THE INTEREST OF C.Z.,
Minor Child,
D.Z., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Daniel M. Northfield, Urbandale, for appellant mother.
Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Assistant
Attorney General, for appellee State.
Erin Mayfield of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
2
BOWER, Chief Judge.
A mother appeals the termination of her parental rights to her child, C.Z.1
She contends termination of her parental rights is not in the child’s best interests
and asks for an extension of time to achieve reunification with the child. On our
de novo review, see In re A.M., 843 N.W.2d 100, 110 (Iowa 2014), we conclude
termination of the mother’s parental rights is in the child’s best interests.
The mother became involved with the department of human services (DHS)
with respect to her older child, M.C., in March 2017 after police responded to a
domestic-violence call. On April 25, police were twice called to the home; first for
a report of on-going domestic violence, and later when the paternal grandfather
reported the mother was “drunk and high on meth,” and he was concerned about
her three-year-old child. The child was removed from the parents’ home in May
and adjudicated a child in need of assistance (CINA) due to the parents’ domestic
violence and substance-abuse problems. Services were offered to address the
mother’s issues of domestic violence and alcohol and methamphetamine abuse.
Over the next several months, the mother did not consistently participate in
the services provided by DHS or comply with the terms of her probation. She
continued to use methamphetamine and abuse alcohol. In January 2018, the
mother was unsuccessfully discharged from treatment services at the House of
Mercy (HOM) for failing to provide required urinalyses (UAs) and for inconsistent
attendance. The mother was arrested on theft charges twice. A report of probation
violations was filed, recommending a residential-treatment program. In March, she
1 The State did not seek to terminate the father’s parental rights in these
proceedings.
3
again admitted using drugs and was upset when her probation officer requested
she begin inpatient treatment. The mother’s mental-health therapist reported she
had been “sporadic with attendance.” The mother periodically attended visits with
M.C. She continued to struggle with substance abuse, mental health, and housing.
On June 17, the mother’s rights to M.C. were terminated pursuant to Iowa Code
section 232.116(1)(h) and (l)2 (2018)—she was pregnant at the time.
The mother again began inpatient substance-abuse treatment at HOM on
August 24. Unfortunately, she was unsuccessfully discharged one month later
because she could not follow through with program expectations. The mother was
in jail three times between June and October while pregnant with C.Z.
C.Z. was born in November and the infant’s umbilical cord tested negative
for illegal substances. Due to the recent termination of the mother’s parental rights
to M.C. and her history of substance abuse, C.Z. was placed in foster care after
discharge from the hospital.
A family team meeting was held on November 26. Notes from the meeting
state:
[The mother] reports that she has been clean for over 100 days. [The
mother] had a substance abuse evaluation at [HOM] on 10-30-18.
They recommended outpatient treatment. [The mother] began
outpatient treatment at HOM. She has individual treatment on
Tuesdays and groups on Sundays. [The mother] has to call daily for
random UAs at HOM. [The mother] reported that she feels like she
is doing great. She said that who she was before is not who she is
2The juvenile court found the mother has a severe substance-related disorder and
presents a danger to self and others as evidenced by prior acts. The court
specifically found: “The mother’s ongoing substance abuse clearly presents a
danger to herself. The court is extremely concerned she may be seriously injured
or killed. . . . She desperately needs a long term treatment program and will not
be available to parent for a long time.”
4
now. [The mother] relayed that having resolved her criminal charges
has reduced much of her stress.
The mother had visits with the child four times per week for one hour until
December. The child was adjudicated a CINA on December 18. DHS was unable
to contact the mother from December 18, 2018, to January 15, 2019.
The case worker spoke with the mother on January 15, 2019, at which time
the mother indicated she was so depressed she could not get out of bed and cried
all the time but was not seeing anyone for counseling. The case worker provided
the mother with therapy resources and later spoke with the Family Safety, Risk
and Permanency (FSRP) provider about helping the mother make a mental-health
and medication-management appointment. Initially, the mother engaged in
substance-abuse treatment at the HOM; however, she was not consistently
meeting with her providers and was not providing drug screens as requested. The
mother saw her child on January 16. Despite the FSRP worker’s efforts at setting
up visits between mother and child and to assist the mother in setting up medical-
management and counseling sessions, the mother struggled to attend visits and
did not follow through with mental-health treatment.
The child’s placement in foster care was confirmed by dispositional order.
The mother did not appear at the hearing and the court was informed there was
an active warrant for her arrest. The mother had not been participating in
substance-abuse treatment, had lost her job, and was in temporary housing.
In February, the mother informed her case worker she was working on
obtaining bail money and evidence to support that she was not guilty of the crime
that led to the arrest warrant. She told the case worker she was planning on turning
5
herself in once she obtained those two things. The mother did not take advantage
of the case worker’s offer to assist.
A permanency hearing was scheduled for April 1. The mother did not
appear and her attorney reported there were active warrants for her arrest. The
hearing was rescheduled for April 11. In a permanency order filed in May, the
court specifically found: “The mother has stopped participating in all services. The
mother still has an active warrant out for her arrest” on multiple charges. The court
ordered the State to file a petition to terminate the mother’s rights.
The mother was arrested on April 17 and was released from jail on June 14.
On June 17, the mother called her FSRP provider and requested that visits resume
with C.Z. On June 24, her DHS case worker advised the mother that in order to
re-initiate visits, she must set up Child-Parent Psychotherapy since she had not
seen the child since January.
The termination hearing was held on July 23. The DHS case worker—who
had also been involved with the family during the prior termination proceedings—
recommended termination of the mother’s rights “[g]iven the lack of participation
and progress that [the mother] has made, ongoing criminal activity, unaddressed
mental health and substance abuse needs, and her history with the department.”
The case worker testified the mother had admitted ongoing use of illegal
substances until April 2019. The worker stated the child is doing well and is
integrated into the foster family, who expressed the willingness to continue to care
for the child and to adopt in the event both parents’ rights were terminated.
The mother testified visits had not resumed, but she was on a waiting list
for Child-Parent Psychotherapy. She acknowledged using methamphetamine in
6
mid-April and stated she recently signed up for substance-abuse and mental-
health programming and was waiting to obtain evaluations. The mother testified
she was employed and was living in her father’s home. She testified she did not
have a current substance-abuse problem but was willing to engage in treatment to
satisfy DHS. The mother was asked if she felt the child could be returned to her
at present and the mother responded: “Yes. . . . Yes, I think it would help me
honestly. . . . I’m her mother, and once you have a child that bond just doesn’t go
away. It’s—we both need each other, and I think that it would only better me.”
The guardian ad litem recommended termination of the mother’s parental
rights:
due to the mother’s lack of engagement in the services and even
participation in visits, which occurred even prior to any type of
suspension by DHS due to the active warrant, there was still a lack
of consistent participation in visits that were offered as outlined by
the FSRP reports along with the mother’s lack of insight into her
substance abuse and mental health issues which in turn have an
[e]ffect on home life, health and safety and well-being as well as the
lack of insight as to how those issues affect the safety of this child.
The juvenile court found clear and convincing evidence to support
termination of the mother’s rights pursuant to Iowa Code section 232.116(1)(e),
(g), and (h) (2019).
The mother appeals, asserting termination is not in the child’s best interests.
We generally use a three-step analysis to review the termination of a
parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We determine:
(1) whether grounds for termination have been established, (2) whether
termination is in the child’s best interests, and (3) whether we should exercise any
of the permissive exceptions to termination. See id. at 472–73. Here, the mother
7
does not contest the grounds for termination and therefore we need not address
that step in the analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Rather,
she argues termination of her parental rights is not in the child’s best interests.
In determining whether the termination of a parent’s rights is in a child’s best
interests, our primary considerations are “the child’s safety,” “the best placement
for furthering the long-term nurturing and growth of the child,” and “the physical,
mental, and emotional condition and needs of the child.” Iowa Code § 232.116(2).
The “defining elements in a child’s best interests” are the child's safety and “need
for a permanent home.” In re H.S., 805 N.W.2d 737, 748 (Iowa 2011) (citation
omitted). We adopt the juvenile court’s findings:
Termination of [the mother’s] parental rights is in the child’s best
interest and less detrimental than the harm caused by continuing the
parent-child relationship. There are no compelling reasons to
maintain the parental rights and no exceptions that outweigh
termination being in the child’s best interest. The child’s safety can
best be ensured by termination.
....
. . . . The court has considered that the father’s [termination-
of-parental-rights] trial was continued. First, that is not a legal basis
to not terminate the mother’s parental rights. Second, it remains in
C.Z.’s best interest for the court to terminate the mother’s parental
rights. The mother prioritized her arrest warrant and her freedom—
instead of visiting with C.Z. and/or participating in services. During
that time period, the mother chose not to engage in services or work
on the significant substance abuse and mental health issues—which
the court is extremely concerned will end her life. She admitted she
continued to use meth on a daily basis.
We add that we are concerned by the mother’s lack of insight of the effects her
unresolved substance-abuse and mental-health issues have on her ability to safely
and consistently parent. We, like the juvenile court, encourage the mother to
participate in services. We affirm the termination of the mother’s parental rights.
AFFIRMED.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/06/2017 08:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
State of Nebraska, appellee, v.
Jamos M. Jasa, appellant.
___ N.W.2d ___
Filed September 22, 2017. No. S-16-989.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law which an
appellate court resolves independently of the lower court’s conclusion.
3. Constitutional Law: Search and Seizure: Investigative Stops:
Arrests: Probable Cause. The Fourth Amendment guarantees the right
to be free of unreasonable search and seizure. This guarantee requires
that an arrest be based on probable cause and limits investigatory stops
to those made upon an articulable suspicion of criminal activity.
4. Criminal Law: Investigative Stops: Motor Vehicles: Police Officers
and Sheriffs. A traffic stop requires only that the stopping officer have
specific and articulable facts sufficient to give rise to a reasonable sus-
picion that a person has committed or is committing a crime.
5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. If an officer has probable cause to stop a traffic viola-
tor, the stop is objectively reasonable.
6. ____: ____: ____: ____. A traffic violation, no matter how minor, cre-
ates probable cause to stop the driver of a vehicle.
7. Judgments: Appeal and Error. Where the record adequately dem-
onstrates that the decision of a trial court is correct—although such
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
correctness is based on a ground or reason different from that assigned
by the trial court—an appellate court will affirm.
8. Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
The four foundational elements which the State must establish as a foun-
dation for the admissibility of a breath test in a driving under the influ-
ence prosecution are as follows: (1) that the testing device was working
properly at the time of the testing, (2) that the person administering the
test was qualified and held a valid permit, (3) that the test was properly
conducted under the methods stated by the Department of Health and
Human Services, and (4) that all other statutes were satisfied.
9. Statutes. Statutory language is to be given its plain and ordinary
meaning.
10. Statutes: Legislature: Intent: Appeal and Error. An appellate court
will not look beyond a statute to determine the legislative intent when
the words are plain, direct, or unambiguous.
11. Appeal and Error. In appellate proceedings, the examination by the
appellate court is confined to questions which have been determined by
the trial court.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder
& Blomenberg, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
INTRODUCTION
Following a jury trial, Jamos M. Jasa appeals his convic-
tion and sentence for aggravated driving under the influence
(DUI), third offense, a Class IIIA felony under Neb. Rev.
Stat. §§ 60-6,196 (Reissue 2010) and 60-6,197.03(6) (Cum.
Supp. 2014). Jasa challenges the order of the district court
for Lancaster County that denied his motion to suppress the
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297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
results of a chemical breath test. We conclude that the district
court did not err in finding that law enforcement (1) had rea-
sonable suspicion to initiate a traffic stop, (2) administered a
15-minute observation period prior to the chemical breath test
in accordance with title 177 of the Nebraska Administrative
Code, and (3) complied with Neb. Rev. Stat. § 60-6,199
(Reissue 2010) by allowing access to a telephone to arrange
independent testing. Therefore, we affirm.
BACKGROUND
On February 14, 2015, Jasa was the subject of a traffic stop,
which led to a DUI investigation and a chemical breath test
showing an alcohol concentration of .191 grams of alcohol per
210 liters of Jasa’s breath. The State charged Jasa pursuant to
§§ 60-6,196 and 60-6,197.03(6) with DUI, third offense, while
having a breath alcohol concentration of .15 grams of alcohol
per 210 liters of breath, or more.
Prior to trial, Jasa moved to suppress his chemical breath
test result on several grounds. In relevant part, he alleged
(1) that law enforcement officers lacked reasonable suspicion
or probable cause to stop his vehicle, making any evidence
obtained as a result of the stop inadmissible; (2) that the chemi-
cal breath test was not conducted in compliance with title 177
of the Nebraska Administrative Code, because law enforce-
ment officers failed to properly and continuously monitor him
for 15 minutes prior to the breath test; and (3) that Jasa was
prohibited from obtaining independent testing of his alcohol
concentration, which rendered his breath test result inadmis-
sible under § 60-6,199.
At the hearing on Jasa’s motion to suppress, the evidence
established that on February 14, 2015, shortly after mid-
night, Officers Kenneth Morrow and Jonathan Sears of the
Lincoln Police Department were on patrol together when they
received a dispatch about a vehicle that was “all over the
road” at First and West O Streets in Lincoln, Nebraska. The
dispatch center received the initial report from an employee
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
of Lincoln Fire and Rescue (LFR). The report originated from
LFR “Engine 3,” which is based at a firehouse near First and
West O Streets.
Morrow and Sears arrived in the area within a few minutes.
At approximately Third and West O Streets, they saw a pickup
that matched the description and the license plate number pro-
vided by LFR.
Morrow testified that they observed the pickup weaving
in its lane and saw both the front and rear driver’s side tires
completely cross over the dashed lane divider line. The district
court received into evidence Lincoln Mun. Code § 10.14.110
(1990), which prohibits a motorist’s vehicle from straddling the
lane line with its wheels for a distance greater than required to
safely change lanes.
Morrow testified that after seeing the pickup cross the lane
line with its driver’s side tires, he activated his cruiser camera,
which was able to “jump back . . . 10 seconds on the video.”
A copy of the resulting video was received at the suppression
hearing. Morrow testified that the video shows the pickup
weaving within its lane and then crossing the lane line. Due to
the quality of the video, lighting, and movement, the lane line
is difficult to discern during portions of the video; however,
it does appear that the pickup weaved in its lane and could
have briefly crossed the lane line with both driver’s side tires.
Morrow acknowledged that the quality of the video was “not
great,” but stated that from his perspective, he was able to see
the driver’s side tires cross the lane line. After perceiving this
traffic violation, the officers initiated a traffic stop and identi-
fied the pickup’s driver as Jasa.
Morrow testified that Jasa’s driving behaviors were con-
sistent with someone who is under the influence of alcohol
and that he administered field sobriety tests and a preliminary
breath test at the scene of the traffic stop. Jasa was ultimately
arrested for DUI.
While detained in the police cruiser, Jasa twice requested a
blood test. Morrow testified that the officers could have taken
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297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
Jasa to a hospital for a chemical blood test. Instead, the officers
transported Jasa to the Lancaster County jail for a chemical
breath test. They arrived at the jail at 1:04 a.m.
While Sears prepared for the breath test, Morrow accom-
panied Jasa to a different room where Jasa changed into a jail
uniform. Morrow observed Jasa for 15 minutes prior to the
chemical breath test, monitoring him for belching, vomiting,
or anything that would bring alcohol from his stomach to his
mouth and affect the accuracy of the test. Morrow testified
that he observed none of these behaviors.
Sears testified that he was aware that the 15-minute observa-
tion had taken place but that Morrow did not directly commu-
nicate with Sears about his observations. Sears explained that
sometimes, when two officers conduct a DUI investigation,
one officer carries out the observation period while the other
administers the chemical test, but that normally, the subject
sits beside the testing machine for the 15-minute observa-
tion period.
Morrow testified that he explained the chemical breath test
process to Jasa, and Sears testified that he, Sears, completed
the steps necessary to administer the test. At some point,
Morrow filled out “Attachment 16,” a “checklist technique
. . . approved and prescribed” by title 177 of the Nebraska
Administrative Code. The checklist requires the following
tasks: verify the testing instrument’s maintenance, “[o]bserve
the subject for 15 minutes prior to testing,” record the time
the observation began, attach a clean mouthpiece, verify that
a complete breath sample was obtained with no errors, and
indicate the alcohol content of the breath sample obtained. The
bottom of the form includes a line above the words “Permit
Holder.” Morrow checked the box next to each task on the
form, filled in the necessary information, and identified Sears
as the permit holder. Morrow testified that normally, the offi-
cer who administers the breath test is identified as the permit
holder. Morrow and Sears both had Class B permits to operate
the testing instrument.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
Sears administered the chemical breath test at 1:22 a.m.
Both Morrow and Sears were present. The test indicated that
Jasa had a breath alcohol concentration of .191 grams of alco-
hol per 210 liters of breath.
Immediately after the chemical breath test, Morrow read
Jasa a “physician’s advisement,” which informed Jasa that
under § 60-6,199, he had a right to undergo independent test-
ing but would have to procure and pay for it himself. Morrow
further explained to Jasa that Jasa would have to ask someone
to come to the jail to perform an independent test. Jasa asked
how he could arrange such testing, and Morrow informed him
that he would be allowed to use the telephone and would have
to speak with the jail staff for further details. Additionally,
Morrow told Jasa that he would have to remain in jail until his
court date 3 days later.
Jasa was cited for aggravated DUI, third offense, a felony.
Morrow testified that Jasa had to be lodged in jail because his
offense was not bondable. Sears explained that the offense was
not bondable because Jasa was arrested during the weekend
and a judge could not set bond for several days.
Both Morrow and Sears testified that neither of them did
anything to inhibit Jasa’s ability to arrange independent test-
ing. Morrow stated that inmates at the Lancaster County jail
are allowed to make telephone calls and to have visitors. Both
officers testified that they could not recall anyone ever coming
to the jail to administer an independent blood test, but Morrow
pointed out that he did not “stick with the people down at the
jail” and that, in his role as a police officer, he would never
see an arrestee receiving a visitor and did not know how the
process worked.
Jasa testified that Morrow and Sears did not offer to trans-
port him to the hospital for a blood test or to have someone
come to the jail for a blood test, nor did they provide any
information that he could use to obtain a blood test. Jasa con-
firmed that he was told he could arrange blood testing on his
own, but said he had no idea whom to call or how to arrange
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297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
such testing at 2 a.m., especially since he is not from Lincoln.
However, Jasa acknowledged that he used to live in Lincoln
and had access to a telephone while he was in jail on the night
of his arrest.
Over the 31⁄2 days that Jasa spent in jail for the present
offense, he made 45 telephone calls. The evidence showed
that at 1:56 a.m. on the night of his arrest, he first called his
current attorney, but was unsuccessful in reaching him. Jasa
testified that he also called his brother and a friend several
times to attempt to arrange for bond so that he could obtain an
independent test upon his release and because, he testified, he
did not realize he was nonbondable until several hours after his
incarceration. Jasa acknowledged that, while in jail, he never
attempted to contact a physician, a hospital, or anyone else to
obtain a blood test.
Jasa testified that on the morning of the suppression hear-
ing, he called several places in Lincoln to inquire whether they
perform independent blood tests at the jail: the main desk, the
laboratory, and the emergency room at a Lincoln hospital; the
laboratory and the emergency room at another Lincoln hospi-
tal; and two other testing facilities, as well as the Lancaster
County Detention Center’s medical department. Jasa testified
that one of the hospitals had referred him to the two other test-
ing facilities. Jasa stated that he made his best effort to find
a facility that would draw blood at the jail and that he spoke
to about 15 people, but he did not obtain the names of the
employees who fielded his calls. Jasa testified that each facil-
ity informed him that it does not come to the jail to perform
independent blood tests.
The district court denied Jasa’s motion to suppress. First,
while the district court made the factual finding that Morrow
observed Jasa’s pickup weaving within his lane and crossing
over the lane line with the driver’s side tires, the district court
ultimately relied on the observation of weaving alone, along
with LFR’s report, in determining that the traffic stop was
justified by reasonable suspicion of criminal activity. Second,
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822
the district court concluded that it was not improper under
title 177 for the officers to “work[] together” to observe Jasa
during the 15-minute period prior to the breath test. Further,
the district court reasoned that even if the officers did not
strictly comply with the 15-minute observation requirement,
the 15-minute observation period is a “‘technique’” rather than
a “‘method’” under title 177, and that thus, any deficiency
in executing it would affect credibility, but not admissibil-
ity. Finally, the district court concluded that suppression of
the breath test was not warranted under § 60-6,199 because,
although the officers did not assist Jasa in obtaining indepen-
dent testing, law enforcement personnel did not intentionally
impede his ability to do so.
After overruling Jasa’s motion to suppress, the district court
conducted a jury trial. The district court received evidence
of the chemical breath test result over Jasa’s timely objec-
tions and overruled his renewed motion to suppress. The jury
found Jasa guilty of DUI with an alcohol concentration of .15
or more.
The district court held an enhancement hearing and deter-
mined the current conviction to be Jasa’s third DUI offense.
The district court sentenced Jasa to 36 months’ probation with
various terms and conditions and 60 days in jail with credit for
time served. Further, the district court revoked Jasa’s opera-
tor’s license for 5 years, with the possibility of obtaining an
ignition interlock device after 45 days.
This appeal followed.
ASSIGNMENTS OF ERROR
Jasa assigns that the district court erred in (1) finding
reasonable suspicion to initiate the stop, (2) finding that the
15-minute observation period prior to the breath test had been
properly executed pursuant to title 177, (3) finding no viola-
tion of § 60-6,199, and (4) not suppressing the breath test and
allowing it to be offered into evidence.
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STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. State v. McCumber, 295 Neb. 941, 893
N.W.2d 411 (2017).
[2] The meaning and interpretation of statutes and regula-
tions are questions of law which an appellate court resolves
independently of the lower court’s conclusion. State v.
McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).
ANALYSIS
Legal Basis for Traffic Stop
[3-5] Jasa asserts that the officers did not have a legal basis
to stop his vehicle. He contends that LFR’s tip and the officers’
independent observations were insufficient to create reason-
able suspicion. The Fourth Amendment guarantees the right to
be free of unreasonable search and seizure. State v. Bol, 288
Neb. 144, 846 N.W.2d 241 (2014). This guarantee requires that
an arrest be based on probable cause and limits investigatory
stops to those made upon an articulable suspicion of criminal
activity. Id. A traffic stop requires only that the stopping officer
have specific and articulable facts sufficient to give rise to a
reasonable suspicion that a person has committed or is com-
mitting a crime. Id. In this context, if an officer has probable
cause to stop a traffic violator, the stop is objectively reason-
able. Id.
[6] A police officer has probable cause to stop a defendant’s
vehicle, independent of an anonymous tip, when the officer
observes a traffic violation. See State v. Sanders, 289 Neb.
335, 855 N.W.2d 350 (2014). A traffic violation, no matter how
minor, creates probable cause to stop the driver of a vehicle.
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Id. In reviewing a challenge to the legality of an automobile
stop, the question is not whether the officer issued a citation
for a traffic violation or whether the State ultimately proved
the violation; instead, a stop of a vehicle is objectively reason-
able when the police officer has probable cause to believe that
a traffic violation has occurred. Id.
Here, Jasa claims that the traffic stop was not justified
because he did not commit a traffic violation under § 10.14.110
of the Lincoln Municipal Code. That section of the code pro-
hibits driving with “one front and rear wheel . . . on one side
of [the lane] line and the other front and rear wheel . . . on the
opposite side of the [lane] line for a distance more than is nec-
essary to change from one traffic lane to the other with safety.”
Specifically, Jasa claims that his vehicle “did not straddle the
[lane] line with both tires at the same time as required under
the code.” Brief for appellant at 18.
The State contends that Jasa committed a traffic viola-
tion which provided probable cause for the traffic stop. To
support its position, the State first notes the district court’s
factual finding that Morrow observed Jasa’s vehicle “weav-
ing within his lane and at one point crossing over the lane
line with the driver’s side tires.” Despite this factual finding
by the district court, in its holding, the court relied upon the
call from dispatch and Jasa’s vehicle weaving within the lane
as reasonable suspicion for the traffic stop. The State requests
that we accept these factual findings, because on appeal, we
review a trial court’s factual findings for a motion to suppress
based on a claimed violation of the Fourth Amendment for
clear error. See State v. McCumber, 295 Neb. 941, 893 N.W.2d
411 (2017). Although the video is not entirely clear, Morrow
testified that from his perspective, he observed both driver’s
side tires cross the lane line. We find it was not clearly erro-
neous for the district court to accept Morrow’s testimony on
this issue.
[7] Next, based upon these facts, the State argues that we
should find probable cause for the traffic stop based upon a
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violation of the law. And we do independently review whether
the facts violate the Fourth Amendment protections as a ques-
tion of law. See State v. McCumber, supra. With the district
court’s having found that Morrow observed both of Jasa’s
driver’s side wheels cross the lane line, it was objectively
reasonable to conclude that a traffic violation had occurred.
Where the record adequately demonstrates that the decision
of a trial court is correct—although such correctness is based
on a ground or reason different from that assigned by the trial
court—an appellate court will affirm. State v. Huff, 279 Neb.
68, 776 N.W.2d 498 (2009). Therefore, we find no error by the
district court in concluding that reasonable suspicion justified
the traffic stop.
A dministration of Breath Test
Pursuant to Title 177
[8] Jasa next disputes the admissibility of the chemical
breath test results. The four foundational elements which the
State must establish as foundation for the admissibility of a
breath test in a DUI prosecution are as follows: (1) that the
testing device was working properly at the time of the testing,
(2) that the person administering the test was qualified and
held a valid permit, (3) that the test was properly conducted
under the methods stated by the Department of Health and
Human Services, and (4) that all other statutes were satisfied.
State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000). Jasa’s
contentions focus on the third foundational element.
Title 177 is the governing Department of Health and Human
Services regulation in this case. Title 177 authorizes Class B
permit holders to perform a chemical test to analyze a subject’s
breath for alcohol content using an approved method. See 177
Neb. Admin. Code, ch. 1, § 001.07B (2014). Title 177 further
sets forth the “Operating Rules for Class B Permit,” and pro-
vides, “To determine the alcohol content in breath, a Class B
permit holder shall . . . [u]se the appropriate checklist . . . .”
177 Neb. Admin. Code, ch. 1, §§ 007.02 and 007.02B (2014).
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Under title 177, the testing machine used here is among the
“[a]pproved evidentiary breath testing methods and instruments
. . .” for which the “[c]hecklist technique . . .” in attachment
16 is approved and required. 177 Neb. Admin. Code, ch. 1,
§§ 008.01, 008.01A, and 008.01C (2014). As described above,
attachment 16 consists of a checklist of tasks including, among
other things, “[o]bserve the subject for 15 minutes prior to
testing.” At the bottom of the checklist is a line with the words
“Permit Holder” underneath.
Here, Morrow observed Jasa for 15 minutes before Sears,
the named permit holder, administered the chemical breath
test. Jasa claims that the breath test was not properly conducted
under the methods stated by the Department of Health and
Human Services in title 177, because Sears failed to observe
Jasa for 15 minutes prior to administering the test and instead
relied upon Morrow’s 15-minute observation of Jasa. Further,
Jasa contends that Sears could not rely on the knowledge of
another officer to satisfy the observation period required by
attachment 16 of title 177, because he and Morrow did not dis-
cuss the 15-minute observation period conducted by Morrow
before Sears administered the breath test.
Jasa points to DeBoer v. Nebraska Dept. of Motor Vehicles,
16 Neb. App. 760, 761, 751 N.W.2d 651, 654 (2008), where
the Nebraska Court of Appeals referred to the checklist as a
“form by regulation [that] must be completed by an officer
when conducting a breath test.” But that descriptive phrase
occurred only in the background section of that particular
opinion and was not part of the Court of Appeals’ holding in
DeBoer. Although it may be typical, and even the best practice,
for one officer both to administer the breath test and to com-
plete the checklist, title 177 does not require that one officer
perform both duties.
In this instance, competent evidence at the suppression
hearing established that each requirement of attachment 16
had been performed. Morrow, a Class B permit holder, testi-
fied that he personally observed Jasa for the entire 15-minute
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observation period and perceived nothing that would affect the
accuracy of the test administered by Sears. Morrow further
verified that he was present for the breath test and completed
attachment 16, which shows that each foundational require-
ment had been met; and other than addressing the manner of
executing the 15-minute observation period, Jasa presented no
evidence or arguments to challenge the form’s validity. Based
on this evidence, we conclude the district court did not err in
admitting the chemical breath test result, despite Jasa’s asser-
tions that it lacked sufficient foundation under title 177.
We digress to note the district court’s finding that even if
the officers had not strictly complied with title 177, the breath
test results were admissible, because the 15-minute observa-
tion period was a technique rather than a method, and, as such,
any failure to strictly adhere to it affected only the weight and
credibility of the evidence, not its admissibility. In reaching
this conclusion, the district court cited State v. Miller, 213
Neb. 274, 281, 328 N.W.2d 769, 773 (1983), where we stated,
“[f]ailure to comply with a technique is not a failure to prove a
foundational element, but affects weight and credibility only.”
Jasa, however, argues that the analysis in Miller does not apply
in this instance, because Miller analyzed a prior rule of the
then Department of Health’s rules and regulations, rather than
title 177. Further, Jasa contends that under title 177, “meth-
ods” and “techniques” are intertwined and thus, no distinction
between the two should apply here.
In reaching our conclusion in Miller, we distinguished
between method and technique, as those terms were expressly
defined in the prior rule. But before arriving at that distinc-
tion, we stated that in order to admit the results of a chemi-
cal test, the statutory foundation must be met. We determined
that such foundation was satisfied, and not until later in the
opinion did we undertake the discussion of “method” and
“technique” to address a requested jury instruction that invited
the jury to assess the admissibility of the evidence. Therefore,
the key question is whether the State proved that the express
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requirements of the Department of Health and Human Services
have been fulfilled, and here, we have answered that question
in the affirmative. Having thus concluded, we need not delve
into any distinction between methods and techniques.
Opportunity for Independent Chemical
Test/A dmissibility Under § 60-6,199
Next, Jasa claims that the district court erred when it found
that the officers had not violated his statutory right to an inde-
pendent blood test pursuant to § 60-6,199. Section 60-6,199
provides:
The peace officer who requires a chemical blood,
breath, or urine test or tests pursuant to section 60-6,197
may direct whether the test or tests shall be of blood,
breath, or urine. The person tested shall be permitted to
have a physician of his or her choice evaluate his or her
condition and perform or have performed whatever labo-
ratory tests he or she deems appropriate in addition to and
following the test or tests administered at the direction of
the officer. If the officer refuses to permit such additional
test to be taken, then the original test or tests shall not be
competent as evidence. Upon the request of the person
tested, the results of the test or tests taken at the direction
of the officer shall be made available to him or her.
In State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995),
we applied the language of § 60-6,199, then codified as Neb.
Rev. Stat. § 39-669.09 (Cum. Supp. 1992). We found that an
officer had no statutory duty to transport an in-custody defend
ant to the hospital for an independent blood test. In Dake, we
also endorsed the view that while “the police cannot hamper
a motorist’s efforts to obtain independent testing, they are
under no duty to assist in obtaining such testing beyond allow-
ing telephone calls to secure the test.” 247 Neb. at 584, 529
N.W.2d at 49.
Here, Jasa requested the opportunity to undergo an inde-
pendent blood test, and Morrow informed him that jail staff
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would allow him access to the telephone to make the necessary
arrangements. Jasa’s access to the telephone began at approxi-
mately 2 a.m., shortly after officers administered the chemical
breath test, but, despite making 45 telephone calls, he did not
try to contact a hospital or physician. Instead, he attempted,
unsuccessfully, to make arrangements for bond.
On the morning of the suppression hearing, Jasa called hos-
pitals and other entities to inquire about a blood test. Jasa tes-
tified that he learned that no entity he contacted comes to the
jail to conduct independent blood tests. Notably, Jasa did not
identify any of the individuals who fielded his calls, nor, as the
State points out, does this evidence categorically establish that
Jasa could not have been tested at the jail. It merely shows that
Jasa’s “best efforts” on the morning of the suppression hearing
were fruitless.
In the instant case, Jasa was provided telephone access, but,
whether through misunderstanding or calculated choice, he did
not use it to arrange for timely independent testing. Even if
confusion about bond influenced Jasa’s failure to arrange for
a timely independent blood test, any such misfortune did not
arise due to the fault of law enforcement, who advised him that
he would remain in jail until his court date and that he would
have to arrange for someone to administer a blood test at the
jail. See People v. Kirkland, 157 Misc. 2d 38, 595 N.Y.S.2d
905 (1993) (if driver cannot obtain test, through no fault of
police, it is generally considered driver’s misfortune). Instead,
the officers in this case fulfilled the requirements of § 60-6,199
as applied in Dake: They did not hamper Jasa’s ability to
obtain an independent test, and they assisted him by allowing
him to make telephone calls to secure it.
Despite Jasa’s failure to attempt to arrange for a timely
independent test, he argues that our holding in State v. Dake,
supra, is distinguishable from his situation because he later
attempted to contact hospitals and other entities about an
independent blood test and none of them performed such tests
at the jail. He also claims Dake is distinguishable because he
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could not bond out for 3 days, whereas the defendant in Dake
bonded out within a few hours. Under the circumstances in this
case, Jasa believes that the intent of § 60-6,199 is defeated if
the officers are not required to do more than provide access to
a telephone.
Jasa relies on cases from other jurisdictions. He cites
Hedges, 143 Idaho 884, 154 P.3d 1074 (Idaho App. 2007). But
in Hedges, an Idaho court held that “the police . . . have a duty
not to interfere with or affirmatively deny a defendant access
to a telephone once a request has been made to make tele-
phonic arrangements for an independent [blood alcohol content
(BAC)] test,” but “no duty to administer a second BAC test or
otherwise participate in arranging an independent BAC test on
behalf of the defendant” and no duty to “transport a defendant
to a medical facility to obtain an independent BAC test.” 143
Idaho at 888, 154 P.3d at 1078.
Jasa also points to Unruh v. State, 669 So. 2d 242, 243-44
(Fla. 1996), where the Supreme Court of Florida found:
[L]aw enforcement must render reasonable assistance
in helping a DUI arrestee obtain an independent blood
test upon request. In some cases, minimal aid such as
providing access to a telephone and directory will be
sufficient; in others, more active assistance such as
transporting the arrestee to a blood testing facility will
be necessary.
However, unexplained by Jasa, is what would constitute rea-
sonable assistance if we adopted the holding in Unruh v.
State, supra. For example, does the officer need to assist an
extremely intoxicated person who cannot even conduct a tele-
phone call, does the officer order medical personnel to conduct
an independent test if they refuse, and who is liable for the
costs or if an injury occurs? Adopting any standard beyond
allowing a defendant to make his or her own arrangements
would add requirements to § 60-6,199 which are not present
and would lead to confusion for law enforcement and medical
personnel and inconsistencies in applying the law. See State
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v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014) (it is not
within appellate court’s province to read meaning into statute
that is not there).
[9,10] In this instance, even if we ignored Jasa’s failure to
timely attempt to arrange for an independent test, it would
not obviate the fact that the principle of State v. Dake, 247
Neb. 579, 529 N.W.2d 46 (1995), comports with § 60-6,199.
Statutory language is to be given its plain and ordinary mean-
ing. State v. Arizola, 295 Neb. 477, 890 N.W.2d 770 (2017).
And we will not look beyond a statute to determine the legisla-
tive intent when the words are plain, direct, or unambiguous.
State v. Wood, 296 Neb. 738, 895 N.W.2d 701 (2017). Clearly,
§ 60-6,199 allows any “person tested . . . to have a physician
. . . evaluate his or her condition and perform or have per-
formed whatever laboratory tests he or she deems appropri-
ate.” But the officer must “refuse[] to permit”—that is, deny
authorization or consent for—such additional test to trigger
the suppression of any officer-directed test. Since our holding
in Dake over two decades ago, our Legislature has not revis-
ited the language in § 60-6,199. The principle that “the police
cannot hamper a motorist’s efforts to obtain independent test-
ing” and “are under no duty to assist in obtaining such testing
beyond allowing telephone calls to secure the test” is still a
reasonable statement of the law. State v. Dake, 247 Neb. at
584, 529 N.W.2d at 49. Accordingly, the district court did not
err in finding no violation of the statutory rights afforded to
Jasa by § 60-6,199.
[11] Jasa further claims a violation of his due process rights
because he was denied the opportunity to obtain exculpatory
evidence through an independent blood test. However, he did
not raise this issue before the district court, and in appellate
proceedings, the examination by the appellate court is con-
fined to questions which have been determined by the trial
court. State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).
Therefore, we will not consider this issue on appeal.
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Sufficiency of Evidence
Jasa argues that if we conclude that the district court erred
in denying his motion to suppress, the evidence at trial was
insufficient to support his conviction for the crime charged.
However, having found that the district court did not err in
denying the motion to suppress, we need not consider this
assignment of error. State v. Bol, 288 Neb. 144, 846 N.W.2d
241 (2014) (appellate court is not obligated to engage in analy-
sis that is not necessary to adjudicate case and controversy
before it).
CONCLUSION
For the reasons set forth above, we affirm.
A ffirmed.
| {
"pile_set_name": "FreeLaw"
} |
FILED
May 22 2019, 2:51 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 18S-CR-585
Delmar Kelly,
Appellant (Defendant below),
–v–
State of Indiana,
Appellee (Plaintiff below)
Argued: January 17, 2019 | Decided: May 22, 2019
Appeal from the Hendricks Superior
Court No. 32D02-1710-F2-25
The Honorable Rhett M. Stuard, Judge
On Petition to Transfer from the Indiana Court of Appeals
No. 18A-CR-1162
Opinion by Justice David
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice.
After a jury found defendant guilty of dealing in a narcotic drug and
resisting law enforcement, he appealed his conviction, arguing that the
trial court committed fundamental error by allowing the State to present
evidence of his post-arrest, pre-Miranda silence during trial. Finding that
Kelly opened the door to this evidence and also finding no fundamental
error, we affirm the trial court.
Facts and Procedural History
Detective Maples of the Hendricks County Drug Taskforce recovered a
cell phone from a suspected drug dealer. He then used the phone to pose
as a drug dealer himself and set up a meeting with Defendant, Delmar
Kelly, to purchase drugs. When Kelly arrived at the agreed upon location,
officers attempted to block his vehicle and make an arrest, but Kelly
maneuvered around them and led police on an almost five-mile chase
before stopping in a residential neighborhood. During the chase, several
items were thrown from the car, including a digital scale, heroin, and
cocaine. When the officers finally forced Kelly to a stop, three men were
removed from the car at gunpoint, handcuffed, and separated. The two
other men besides Kelly were Roosevelt Garrett and Cameron Johnson.
There is no evidence regarding when any of the three men received
Miranda warnings.
During Kelly’s jury trial, defense counsel began her opening statement
by playing a jail call wherein Kelly stated that he was driving to make
some money and “got caught up in” a “narcotics bust” but that he “ain’t
had nothing on [him].” (Tr. Vol 2. at 86; State’s Ex. 10.) Defense counsel
then went on to ask the jury to decide whether Kelly was part of the whole
drug deal or just got caught up in the bust. She suggested he was an
“unknowing means to an end” for his co-defendants. (Tr. Vol. 2 at 91.)
For its part, the State elicited testimony from two officers about Kelly’s
actions following his arrest:
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 2 of 9
State: Uh, any admission by the three about
what – what was going on or what they
were doing?
Detective Maples: No, there was not.
State: Did any of them give you information
about what they were doing?
Detective Maples: They did not, no.
***
State: Did . . . Mr. Kelly appear to be befuddled
or confused about why he was being
stopped?
Detective Petree: No, sir.
State: Did he say anything to you?
Detective Petree: Uh, none of the three really wanted to
talk to us.
(Tr. Vol. 2, pp. 107-08, 137.)
The prosecutor then argued in closing, in relevant part:
[Kelly’s] guilty mind is also proven by things he didn’t say.
After the pursuit when he was given a chance to talk, to say
what happened, to say, I don’t know, [Roosevelt] just asked me
to drive him to see a friend for money, we didn’t hear that. He
didn’t say that. He didn’t say I was just driving out here to
meet a friend. I’ve [g]ot no idea why you’re-why you’re
stopping me. He wasn’t surprised at all he was being stopped
because he knew exactly what was happening. You heard from
the jail call-ca-phone call, he [was] caught up in a narcotics
bust. He didn’t know police would be waiting for him when he
arrived at that [drug dealer’s] address.
So there’s no reason for him to be surprised [be]cause he knew
exactly what he was doing. Wasn’t surprised and at no time
during that five-mile pursuit did he stop voluntarily. At no
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 3 of 9
time did he stop and say, please I – I was scared; I ran after
driving through those yards, I just had to stop. I realize my
mistake. No, he drove through those yards; drove through on
150, Dan Jones, weaving in and out of traffic; approaching
speeds of nearly seventy miles per hour on Dan Jones. Speeds
of nearly sixty miles per hour in the Settlement neighborhood.
Only stopped when that neighborhood got so winding, so
difficult to navigate that he had nowhere else to go. His
affirmative conduct proves his intent to deal that day. The
things he didn’t say, no expression of confusion to prove his
intent that day.
(Tr. Vol. 3, pp. 42-43.) Kelly’s counsel did not object to any of the above
statements on the grounds that they violated his right to remain silent.
(He did object on other grounds.)
The jury found Kelly guilty of dealing in a narcotic drug and resisting
law enforcement. Kelly appealed, only challenging the dealing in
narcotics conviction, and argued that the trial court committed
fundamental error by allowing the State to present evidence of his post-
arrest, pre-Miranda silence during trial.
In a 3-0 memorandum decision, the Court of Appeals affirmed. Kelly v.
State, 2018 WL 4558306 (Ind. Ct. App. Sept. 24, 2018). Relying on this
Court’s decision in Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015), the
court held that there was no error in using Kelly’s post-arrest, pre-Miranda
silence as substantive evidence against him during trial. Kelly, 111 N.E.3d
at *4. Further, even if there was an error, the Court of Appeals concluded
that it was not fundamental error because: (1) the references to Kelly’s
silence were used to rebut his defense that he was oblivious to a drug
transaction taking place; and (2) there was substantial evidence that Kelly
knew about the drugs in the car. Id. at *5.
Kelly petitioned for transfer which we granted, thereby vacating the
Court of Appeals opinion. See Ind. Appellate Rule 58(A).
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 4 of 9
Standard of Review
Because Kelly did not object at trial, he must establish fundamental
error. Fundamental error is an exception to the general rule that a party's
failure to object at trial results in a waiver of the issue on appeal. Benson v.
State, 762 N.E.2d 748, 755 (Ind. 2002). A fundamental error is one that
“make[s] a fair trial impossible or constitute[s] a clearly blatant violation
of basic and elementary principles of due process presenting an
undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d
645, 652 (Ind. 2018) (internal citations and quotations omitted). This
exception is very narrow and includes only errors so blatant that the trial
judge should have acted independently to correct the situation. Id.
Further, “merely because the error relates to a violation of a constitutional
right does not, in and of itself, render it fundamental error requiring this
Court consider the matter absent an objection at trial.” Wilson v. State, 514
N.E.2d 282, 284 (Ind. 1987).
Discussion and Decision
Kelly argues that the trial court committed fundamental error by
allowing the State to comment on his silence after arrest but prior to the
issuance of Miranda warnings. Our Court of Appeals applied Myers v.
State, 27 N.E.3d 1069, 1080 (Ind. 2015), to find that because there is nothing
in the record to suggest that Kelly had been advised of his Miranda rights,
the State’s use of Kelly’s silence did not violate his constitutional rights.
However, we find that Myers does not apply here. Applying other more
analogous cases, we find that: 1) Kelly opened the door to the prosecutor’s
comments regarding his silence; and 2) because the mentions of his silence
were minimal and there is ample evidence of his guilt, there is no
fundamental error here.
The Fifth Amendment to the U.S. Constitution, made applicable to the
states through the Fourteenth Amendment, provides that no person shall
be compelled in any criminal case to be a witness against himself. U.S.
Const. amend. V.; Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014). To
protect that right, police officers must advise citizens in custody that they
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 5 of 9
have the right to remain silent prior to questioning. Miranda v. Arizona,
384 U.S. 436, 479 (1966). Further, the U.S. Supreme Court has held that the
government cannot use post-arrest, post-Miranda silence against a
defendant for either impeachment purposes or substantively in the
prosecution’s case-in-chief. Doyle v. Ohio, 426 U.S. 610, 618 (1976);
Wainwright v. Greenfield, 474 U.S. 284, 295 (1986).
However, whether a defendant’s post-arrest, pre-Miranda silence may
be used substantively as evidence against a defendant has yet to be
addressed by the United States Supreme Court. Also, the federal circuits
are split on this issue. See United States v. Wilchcombe, 838 F.3d 1179, 1190
(11th Cir. 2016) (“. . . the circuit courts do not agree as to when the
government may comment on a defendant's silence.”). Indiana courts
have held that post-arrest, pre-Miranda silence cannot be used as
substantive evidence in the State’s case-in-chief. See Akard v. State, 924
N.E.2d 202, 209 (Ind. Ct. App. 2010) (defendant's post-arrest, pre-Miranda
silence could not be used as part of the State's case-in-chief), aff'd in part
and reversed in part on other grounds, 937 N.E.2d 811 (Ind. 2010); Peters v.
State, 959 N.E.2d 347, 353 (Ind. Ct. App. 2011); Rowe v. State, 717 N.E.2d
1262, 1267 (Ind. Ct. App. 1999) (defendant's pre-Miranda silence could not
be used in State's case-in-chief).
In Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), this Court set forth a
five-part test to determine if the use of defendant’s post-arrest, post-
Miranda silence was harmless. In Rowe, our Court of Appeals adopted this
test for cases in which the State referred to defendant’s pre-Miranda silence
in its case-in-chief. 717 N.E.2d at 1267.
With regard to whether defendant’s post-arrest, pre-Miranda silence can
be used for impeachment purposes, the U.S. Supreme Court has held that
it can be used. Fletcher v. Weir, 455 U.S. 603, 607 (1982). Further, our courts
have found that where a defendant opens the door, a prosecutor may
comment on a defendant’s post-arrest, pre-Miranda silence. See Cameron v.
State, 22 N.E.3d 588, 592-93 (Ind. Ct. App. 2014); Ludack v. State, 967 N.E.2d
41, 45 (Ind. Ct. App. 2012). Finally, our courts have declined to find
fundamental error when they have determined a prosecutor made
improper comments but where the comments were isolated statements
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 6 of 9
and there was ample evidence of defendant’s guilt. See Owens v. State, 937
N.E.2d 880, 894 (2010); cf., Nichols v. State, 974 N.E.2d 531, 536 (Ind. Ct.
App. 2012) (finding the prosecutor’s comments regarding defendant’s
silence were fundamental error when the prosecutor’s comments were
obviously made to suggest defendant’s silence was indicative of guilt and
there was not overwhelming evidence of guilt).
Here, Kelly’s defense counsel presented in opening the theory that
Kelly was merely trying to make money driving others around and
unwittingly got caught up in a drug bust. In response, the State elicited
testimony from police about Kelly’s demeanor at the time of his
apprehension in effort to counter the concept that Kelly had no idea what
was going on. The State asked police officers if Kelly said anything, and
they responded that he did not. During the State’s closing, it took the
matter further by stating that Kelly’s guilty mind was demonstrated
because he had the chance to talk but did not say what he was doing or
ask why he was stopped, nor did he look, act, or express any confusion.
As noted above, our Court of Appeals applied this Court’s opinion in
Myers, 27 N.E.3d at 1080, to find that because there is nothing in the record
to suggest that Kelly had been advised of his Miranda rights, the State’s
use of Kelly’s silence did not violate his constitutional rights. Kelly v. State,
111 N.E.3d 262 (Ind. Ct. App. 2018), transfer granted, opinion vacated.
However, Myers does not go so far as to state that any post-arrest, pre-
Miranda statements may be used against a defendant. Instead, Myers
notes that even if Myers was provided with Miranda warnings, under the
facts and circumstances of that case, a constitutional violation did not
occur because the testimony at issue in that case was from Myers’s
mother, who commented that he did not want to speak to police and that
he wanted an attorney. Further, in footnote 3 of our Myers opinion, we
state that our constitutional analysis is case-specific. Therefore, Myers
does not apply to the situation before us.
Instead, we find Cameron v. State, 22 N.E.3d 588 (Ind. Ct. App. 2014), to
be more factually analogous to the present case. There our Court of
Appeals declined to decide whether defendant’s post-arrest, pre-Miranda
silence is protected because it found that even if the prosecutor’s questions
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 7 of 9
and comments were a violation, Cameron opened the door to them. Id. at
592-93. Essentially, Cameron argued that the victim stabbed him as part of
his defense theory, and the State offered testimony and an argument in
effort to show that Cameron had not actually suffered any injuries. Id. at
590-91. Part of that testimony and argument went to the fact that
Cameron did not say anything to reflect that he was injured or hurt. Id.
Similarly, in this case, Kelly offered his defense theory that he was
unaware of the drug deal but rather was an unwitting participant, and in
response, the State offered testimony and argument that he was aware of
the drug deal, both because he did not say anything indicating that he was
unaware of why the police were arresting him and because of his
demeanor and behavior. Accordingly, we find that Kelly opened the door
to the State’s response that included comments about his silence.
Further, even if the trial court erred in admitting the State’s evidence
and argument about Kelly’s post-arrest, pre-Miranda silence, this error is
not a fundamental one for the reasons articulated in Owens v. State, 937
N.E.2d 880, 894 (Ind. Ct. App. 2010). That is, the reference to Kelly’s
silence in the officer’s testimony was minimal in the context of the entire
trial. Also, while the statements made by the prosecution in closing did
reference Kelly’s silence, they went more towards Kelly’s unsurprised
demeanor and behavior than his silence. Additionally, the evidence of
Kelly’s guilt was substantial. Kelly was driving a car containing drugs
and a scale. He fled the dealer’s house and led police on an almost five-
mile chase during which the drugs and scale were thrown from the car.
The references to his post-arrest, pre-Miranda silence did not make his trial
fundamentally unfair in light of this other evidence.
Conclusion
We hold that Kelly opened the door to the State’s presentation of
evidence and argument related to his post-arrest, pre-Miranda silence and
that the trial court did not commit fundamental error in admitting this
evidence. We affirm the trial court.
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 8 of 9
Rush, C.J., and Massa, Slaughter and Goff, JJ., concur.
ATTORNEYS FOR APPELLANT
Zachary J. Stock
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General
Kelly A. Loy
Angela N. Sanchez
Brian Woodard
Deputy Attorneys General
Indianapolis, Indiana
Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019 Page 9 of 9
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968 A.2d 231 (2009)
IN RE C.C.
IN RE P.M.
No. 523 MAL (2008).
Supreme Court of Pennsylvania.
March 31, 2009.
Disposition of petition for allowance of appeal. Denied.
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546 F.2d 679
Dominic J. MONTEL, Plaintiff-Appellant,v.Caspar WEINBERGER, Secretary of Health, Education andWelfare, Defendant-Appellee.
No. 75-2025.
United States Court of Appeals,Sixth Circuit.
Argued June 22, 1976.Decided Dec. 20, 1976.
Frank J. Neff, Irwin W. Barkan, Barkan, Barkan, Neff, Columbus, Ohio, for plaintiff-appellant.
William W. Milligan, U. S. Atty., Thomas D. Thompson, Columbus, Ohio, for defendant-appellee.
Before WEICK, EDWARDS and McCREE, Circuit Judges.
PER CURIAM.
1
The Appellant, Dominic Montel, is a 72-year-old retired miner who appeals from the District Judge's affirmance of the Secretary's denial of black lung benefits. Appellant retired from employment with the Claycraft Company in 1969 and is currently drawing Social Security old age benefits.
2
Early in his working life, Appellant worked as a coal miner for seven years in the Blaire and Sharshall Coal Company mines. He also worked (during two different periods) for a total of approximately 35 years in the Claycraft Company clay mine. He also worked with his brothers for 10 years in operating the Montel Coal Company mine. As will be noted below, the principal questions in this case pertain to whether he is entitled to claim black lung benefits as a result of the last two periods.
3
Appellant claims that the Secretary and the District Judge erred in denying him black lung benefits because he was entitled to the presumption of disability due to pneumoconiosis created by 30 U.S.C. § 921(c)(4) (Supp. II, 1972), and 20 C.F.R. § 410.490(b)(1)(ii) because he was a coal miner with 15 years experience in coal mines.
4
He contends that he worked for over 15 years with the Claycraft Company as a miner in a 100-foot deep clay mine which had a 4- to 8-inch coal seam in the ceiling and that the coal was mixed with the clay when the latter was extracted, being ultimately burned off in the brick kilns.
The Administrative Law Judge found that
5
the Applicant's employment at Claycraft Company was not coal mining within the meaning of the Federal Coal Mine Health and Safety Act of 1969 as amended. His activities were primarily that of extracting clay for the making of brick. The basic definition of pneumoconiosis according to 20 C.F.R. 410.401(b)(1) provides, in general, that pneumoconiosis means a chronic dust disease of the lungs arising out of employment in the nation's coal mines. The Applicant's lung disease undoubtedly arose out of employment in a clay mine, which is not, in terms of the Act a coal mine.
6
It is clear that the statute under which Appellant seeks benefits is, by its terms, applicable to coal mining and to persons "employed in a coal mine." 30 U.S.C. § 902(d) (Supp. II, 1972). We believe that for persons employed in a clay mine to qualify for black lung benefits, coal mining must constitute at least a substantial part of the activity and the exposure. Here, as the Administrative Law Judge and the District Judge found, we have no such proofs.
7
There is, of course, no reason why Congress could not have made pneumoconiosis benefits available to workers in other industries, but clearly, it declined to do so. The Congressional Record shows that on November 10, 1971, during consideration of the 1972 Amendments to the Federal Coal Mine Health and Safety Act, Representative Thompson of Georgia offered the following amendment:
8
(A) "Pneumoconiosis" as used in this act means any respiratory deficiency caused by the repeated inhalation of coal dust, marble dust, rock dust, other quarry dust or man made or natural textile fibers.
9
(B) "Miner" as used in this act includes any individual who as a result of the working conditions related to his employment in any industry contracts pneumoconiosis as is defined in (A) above.
10
115 Cong. Rec. 40456 (1971).
11
This language would have greatly broadened the category of industries covered by the Act so as arguably to include clay mining along with many other industries hazardous to the lungs of employees. The Amendment was, however, rejected.
12
Appellant contends also that he is entitled to have counted towards the 15-year experience in coal mining required for the presumption, a period of 10 years when he worked in the Montel Coal Company mine. As to his claims based on these years, he testified:
13
Q. A few clarifying items here. How many brothers did you have, Mr. Montel? How many brothers did you have?
14
A. Seven. Seven boys. There was seven boys and two girls.
15
Q. All right. Which of the four boys owned the coal mine?
16
A. We were all in together. Louis, John, Harry, myself.
17
Q. Did you lease the mine or buy it?
18
A. We leased it. We leased it from the government.
19
Q. And how did you pay the lease, so much a month or
20
A. So much a ton.
21
Q. So much a ton.
22
A. Yeh, we paid five cents a ton.
23
This testimony is certainly substantial evidence to support the findings of the Administrative Law Judge and the District Court that Appellant, during these years, was not an "employee" within the normal meaning of the term.
24
Webster's Third New International Dictionary defines "employee" as follows:
25
employee or employe . . . 1: one employed by another usu. in a position below the executive level and usu. for wages 2 in labor relations: any worker who is under wages or salary to an employer and who is not excluded by agreement from consideration as such a worker.
26
Congress, in the 1972 Amendments defined miner:
27
The term "miner" means any individual who is or was employed in a coal mine.
28
30 U.S.C. § 902(d) (Supp. II, 1972).
29
The Secretary further defined the term in the regulations:
30
"Miner" or "coal miner" means any individual who is working or has worked as an employee in a coal mine, performing functions in extracting the coal or preparing the coal so extracted.
31
20 C.F.R. § 410.110(j).
32
We believe the Secretary's definition is consistent with the language of the Act.
33
There is, of course, no reason why an industrial hazard compensation act like the present one could not make benefits available to self-employed persons or working partner-owners. There are many examples of such provisions in State Workmen's Compensation Acts. Indeed, if Mr. Thompson's Amendment just quoted above had been adopted, it could be argued that its language redefining the term "miner" shifted the emphasis from the employment relationship to a relationship to the industrial hazard. Unfortunately, for Appellant's case, the Amendment was defeated.
34
Appellant's argument that depends upon the presumption of total disability established by 20 C.F.R. § 410.490(b)(3) which requires 10 years of employment as a coal miner is defeated by what has already been stated in this Opinion since absent the years of employment just discussed pertaining to the Claycraft Clay Mine and the Montel Coal Company, Appellant's evidence does not disclose 10 years of work as a "miner" in the nation's "coal mines."
35
We agree with the District Judge that the record contains substantial evidence to support the Secretary's conclusion that Appellant was not totally disabled by pneumoconiosis due to coal mining.
36
The judgment of the District Court is affirmed.
37
McCREE, Circuit Judge (dissenting).
38
I respectfully dissent. It is clear from the definitions provided in 20 C.F.R. § 410.110 that in order to be a "miner" for the purposes of the Federal Coal Mine Health and Safety Act, an individual must be working "as an employee in a coal mine," and that an "employee" is an "individual in a legal relationship (between the person for whom he performs services and himself) of employer and employee under the usual common-law rules."
39
In order to be an employee, therefore, a person must be employed by a legal entity other than himself. Even if he possessed an interest in the entity for which he worked, he would be in the necessary legal relationship with the entity. Accordingly, I do not agree with the Secretary's adoption of the administrative law judge's conclusion that the legal status of the Montel Coal Company whether it be partnership, joint venture, or corporation is irrelevant to this case. If the Montel Coal Company were a separate legal entity, then the years during which appellant was employed by it should have been counted as years during which he was employed as a miner for the purpose of the presumption about the origin of disability due to pneumoconiosis.
40
Because of his improper view of the law, the administrative law judge made no findings regarding the exact status of the Montel Coal Company or the appellant's precise relationship to it. I would remand for the purpose of permitting a resolution of these questions.
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117 Ariz. 151 (1977)
571 P.2d 297
STATE of Arizona, Respondent,
v.
Wilbur ROCKERFELLER, Petitioner.
No. 1 CA-CR 2358-PR.
Court of Appeals of Arizona, Division 1, Department B.
November 3, 1977.
Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Asst. Atty. Gen., Phoenix, for respondent.
Ross P. Lee, Maricopa County Public Defender by Anne W. Kappes, Deputy Public Defender, Phoenix, for petitioner.
OPINION
JACOBSON, Judge.
The sole issue for consideration by the court on this petition for review of a denial of petitioner's motion for post-conviction relief under Rule 32, Rules of Criminal Procedure, is the effect of three invalid prior felony convictions on the petitioner's present sentence.
Petitioner, Wilbur Rockerfeller, was originally convicted in this matter in 1973 of first degree burglary following a negotiated plea of guilty. The presentence report prepared at that time indicated that petitioner had four prior felony convictions for burglary, three arising out of Yuma County and one arising out of Maricopa County. At the time of sentencing, one of the Yuma felony convictions had been set aside by the Arizona Federal District Court on the grounds that the Superior Court of the State of Arizona, in and for the County of Yuma, had no jurisdiction over the offense *152 committed by the petitioner because he was a Mohave Indian and the offense committed occurred on an Indian Reservation (Parker, Arizona).[1] The fact of the invalidation of one of the Yuma convictions was not brought to the attention of the trial court. The petitioner was nevertheless placed on probation for five years. No appeal was taken from that proceeding.
On November 27, 1973, a petition to revoke probation was filed and following a hearing on this petition, petitioner was found to have violated the terms of his probation. The trial court continued the petitioner on probation, but added to the condition of probation that petitioner serve four months in the county jail.
In May, 1974 a second petition to revoke probation was filed. As a result, petitioner's probation was revoked and he was sentenced to not less than ten nor more than twelve years in the Arizona State Prison. Petitioner appealed this revocation and sentence and this court affirmed by memorandum decision. State v. Rockerfeller, 1 CA-CR 807 (Memorandum Decision filed March 25, 1975.) One of the grounds urged by petitioner in that appeal was ineffectiveness of counsel based on counsel's failure to bring to the attention of the trial court at time of sentencing on revocation of probation that one of the Yuma felony convictions had been set aside by the federal court. This court disposed of that issue as follows:
"We have reviewed the defendant's records and without stating particulars, we may say that it is lengthy. Defendant's prior convictions were not alleged by the prosecution but were contained in the presentence report. They were not used as a means of sentencing defendant under A.R.S. § 13-1649, which provides for increased punishment on subsequent convictions. The weight to be given the contents of the report was to be determined by the trial judge. The record before us discloses that repeated attempts to rehabilitate the defendant have failed and under the circumstances of this case, the severity of the sentence would not, we feel, be affected by the removal of one conviction." (emphasis added)
On March 21, 1975, petitioner filed his first petition for post conviction relief which he supplemented on April 15, 1975, and again on July 7, 1975. The July 7, 1975 supplement alleged that in addition to the federal court order setting aside one of the Yuma felony convictions, the Superior Court of Yuma County set aside the other two Yuma convictions on June 26, 1975, on the same grounds utilized by the federal court and thus under the authority of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.E.2d 592 (1972) he was entitled to have his sentence reconsidered. This petition for post conviction relief together with the supplements was summarily denied by the trial court on July 17, 1975. No motion for rehearing was made or petition for review taken from this denial. Petitioner had appointed counsel during this entire post conviction relief process.
On August 20, 1975, petitioner filed his second petition for post conviction relief, the summary denial of which is the subject of this petition for review. The grounds alleged in this second petition are exactly the same as were alleged in his July 7, 1975, second supplement to his first petition, that is, that at the time of sentencing on the petition to revoke, the trial court improperly considered three prior felony convictions that had been vacated, and thus petitioner was entitled to reconsideration of sentence under U.S. v. Tucker, supra.
Obviously, this second petition would have been precluded under Rule 32.2, Rules of Criminal Procedure, which provides in part:
"A petitioner will not be given relief under this rule based upon any ground:
* * * * * *
*153 "(2) Finally adjudicated ... in any previous collateral proceeding;"
Alas, the county attorney's office did not comply with subsection (d) of Rule 32.2 which provides in part:
"The prosecutor shall plead and prove any ground of preclusion by a preponderance of the evidence;"
Because of this flagrant oversight, this court must reach the merits of petitioner's review. See, State v. Perez, 26 Ariz. App. 500, 549 P.2d 595 (1976).
In Tucker, the United States Supreme Court held that a criminal defendant who was sentenced upon a record containing at least two prior convictions invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 779 (1971), was entitled to be resentenced because the reviewing court was unable to determine,
"... whether the sentence in the 1953 federal case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained." 404 U.S. at 448, 92 S.Ct. at 592.
First, we have no hesitancy in determining that if the Yuma Superior Court lacked jurisdiction of the offenses with which petitioner was charged, a conviction obtained in that forum would violate fundamental notions of due process and thus be "unconstitutionally obtained." Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908).
Our second inquiry, that is, would the sentence on revocation of probation have been different if the sentencing judge had known of the invalidity of these prior convictions, is somewhat more difficult. This is for the simple reason that in the face of these three prior convictions, the sentencing judge originally placed the defendant on probation. Obviously, if the sentencing judge considered these priors, the weight he gave them was slight. Moreover, when the petitioner violated the terms of his probation, he was again continued on probation with the added attention getter of four months in the county jail. It was only after the petitioner wholly failed to cooperate in his alcohol rehabilitation program (petitioner's "rap sheet" shows over 90 arrests on alcohol related charges) that the trial court imposed a prison term.
While it is possible to say that the trial court's sentence of 10-12 years was the result of exasperation with petitioner's probationary conduct, we are simply unable to know this with any certainty. We also note that the judge who sentenced petitioner on revocation of probation was not the judge who originally granted probation.
In our opinion, petitioner's post conviction relief petition presented a "colorable" claim to relief which would preclude a summary denial of that petition under Rule 32.6(c), Rules of Criminal Procedure. However, in our opinion, the proper method of handling this and other Tucker problems is that procedure adopted in Ferranto v. United States, 507 F.2d 408 (2nd Cir.1974). That is, if the sentencing judge can state that the invalidity of petitioner's three prior Yuma County felony convictions had no effect on the sentence imposed, then the sentence should stand. If, on the other hand, the sentencing judge indicates that the sentence was enhanced because of these three prior convictions, the judge can so state and adjust the sentence accordingly on resentencing.
The petition for review is accepted, relief granted and the matter remanded to the sentencing judge to proceed in accordance with this opinion.
WREN, P.J., and EUBANK, J., concurring.
NOTES
[1] The Federal District Court set aside the Maricopa felony sentence and remanded to the Supreme Court for sentencing. The Maricopa felony sentence was subsequently modified from 6 to 7 years to 4 years, 11 months, to 5 years. Petitioner was released from prison on this sentence on June 16, 1971.
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833 F.2d 303
Bell (Wesley K.), ta/a Wes Outdoor Advertisingv. State of New Jersey, N.J. Dept. of Transportation,Mullen (Russell H.), Pell (Clarence), Stolowski (Vincent R.), Monteforte (NickolasF.), Cunningham (Joseph)
NO. 87-5087
United States Court of Appeals,Third Circuit.
OCT 21, 1987
Appeal From: D.N.J.,
Thompson, J.
1
AFFIRMED.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01536-COA
RENEE DIANE THACKER SELLERS APPELLANT
v.
NICHOLAS RICHARD RINDERER APPELLEE
DATE OF JUDGMENT: 08/05/2016
TRIAL JUDGE: HON. M. RONALD DOLEAC
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: BRANDON L. BROOKS
ATTORNEY FOR APPELLEE: PHILLIP LONDEREE
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED: 06/05/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Renee Diane Thacker Sellers appeals the Lamar County Chancery Court’s Albright1
analysis and award of physical custody to Nicholas Richard Rinderer (“Nick”). We find no
error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Nick and Renee are the natural parents of Melanie, born in May 2013, and Paul, born
in March 2014.2 Nick and Renee were never married. Both Melanie and Paul were born to
the parties while Renee was married to another man, Michael Sellers. Renee and Michael
1
Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
2
For privacy purposes, we substitute fictitious names for the minor children.
were divorced November 24, 2014, and share a daughter, Sophia.
¶3. This action commenced on August 12, 2013, when Nick filed a “complaint for
adjudication of paternity, custody, support and other matters,” along with a complaint for
emergency custody. A temporary order was entered August 21, 2013, which adjudicated
Nick the natural father of Melanie,3 awarded joint legal custody to Nick and Renee, and
temporary physical custody to Renee. Nick was awarded visitation two days per week.
Additionally, the chancellor ordered Nick and Renee to meet with and be evaluated by Dr.
John Pat Galloway. A guardian ad litem (GAL) was subsequently appointed by the
chancellor.
¶4. A review hearing was held on October 3, 2013, wherein it was noted that Renee was
pregnant and Nick was “believed by the parties to be the father” of the child. Nick’s
visitation with Melanie was increased to include overnight visitation. Additionally, the
chancellor ordered the parties to undergo a psychological evaluation. Thereafter, Nick and
Renee were evaluated by Dr. Beverly Smallwood.
¶5. During a hearing on August 25, 2014, the chancellor found that DNA testing
confirmed Nick was Paul’s natural father. The chancellor awarded Nick graduated visitation
with Paul and ordered the parties to attend counseling.
¶6. On February 18, 2015, the Lamar County Department of Human Services filed a
complaint for support and other relief against Nick regarding child support for Melanie and
Paul. On February 1, 2016, the chancellor ordered Nick to pay $193 per month in child
3
Paul had not yet been born.
2
support and expanded Nick’s visitation with the children to three full days per week,
beginning 6:00 p.m. Tuesday to 6:00 p.m. Friday. Nick subsequently amended his
“complaint for adjudication of paternity, custody, support and other matters” to include Paul.
¶7. Following a two-day trial, the chancellor entered an opinion and final judgment on
August 5, 2016, wherein he adopted the findings, report, and recommendations of the GAL.
“Based on the credible evidence and consideration of the [Albright] factors and findings,”
the chancellor awarded joint legal custody of Melanie and Paul to Nick and Renee, and
physical custody to Nick, with Renee “having periods of visitation more than standard.”
¶8. Renee moved for reconsideration, which the chancellor denied. Renee now appeals
and argues the chancellor erred in his Albright analysis and decision to award physical
custody to Nick.
STANDARD OF REVIEW
¶9. A “chancellor’s findings will not be disturbed upon review unless the chancellor was
manifestly wrong, clearly erroneous[,] or applied an incorrect legal standard.” Irving v.
Irving, 67 So. 3d 776, 778 (¶11) (Miss. 2011). However, questions of law are reviewed de
novo. Id.
ANALYSIS
¶10. In all child-custody cases, the primary consideration is the best interest and welfare
of the child. Albright, 437 So. 2d at 1005. When conducting an Albright analysis, the
following factors are to be considered:
(1) age, health, and sex of the child; (2) a determination of the parent that has
had the continuity of care prior to the separation; (3) which has the best
3
parenting skills and which has the willingness and capacity to provide primary
child care; (4) the employment of the parent and responsibilities of that
employment; (5) physical and mental health and age of the parents; (6)
emotional ties of parent and child; (7) moral fitness of the parents; (8) the
home, school and community record of the child; (9) the preference of the
child at the age sufficient to express a preference by law; (10) stability of home
environment and employment of each parent; and (11) other factors relevant
to the parent-child relationship.
Mitchell v. Mitchell, 180 So. 3d 810, 815 (¶9) (Miss. Ct. App. 2015). “When reviewing the
[chancellor]’s application of the Albright factors, the appellate court reviews the evidence
and testimony presented at trial under each factor to ensure the [chancellor]’s ruling was
supported by [the] record.” Id. at 816 (¶10) (internal quotation mark omitted).
¶11. Here, the record shows the chancellor addressed and considered each Albright factor.
Renee claims the chancellor erroneously applied five of the Albright factors: age, health, and
sex of the child; continuity of care; parenting skills and the willingness and capacity to
provide primary child care; physical and mental health and age of the parents; and other
factors relevant to the parent-child relationship. We address each of these factors separately.
I. Age, Health, and Sex of the Child
¶12. The chancellor noted the age, health, and sex of both children and found this factor
to be neutral. Renee asserts “there is still a presumption that a mother is generally better
suited to raise a young child” and argues that “[d]ue to the age of the children and the fact
that [Melanie] is a baby girl, the chancellor should have found this factor in favor of [her]
. . . .” However, as properly noted by the chancellor, “our supreme court has significantly
weakened the once strong presumption that the mother is generally best suited to raise a
young child. Now, our high court sees age and sex of the child as merely factors to be
4
considered under Albright.” Carter v. Escovedo, 175 So. 3d 583, 586 (¶11) (Miss. Ct. App.
2015) (citation and internal quotation marks omitted). “Mississippi law does not support
[Renee]’s argument that a child’s mother, as opposed to the father, is the best caregiver by
default.” Mitchell, 180 So. 3d at 816 (¶12). Accordingly, we find no manifest error by the
chancellor.
II. Continuity of Care
¶13. Renee asserts the chancellor found this factor to be neutral and argues, “[w]ithout
question, this factor should have favored [her].” However, the record clearly shows that both
the GAL and the chancellor found this factor favored Renee. Thus, as noted by Nick, “[t]his
issue appears to have been raised in error.”
III. Parenting Skills and Willingness and Capacity to Provide Primary
Child Care
¶14. The GAL found this factor to be neutral. However, the chancellor ultimately
concluded this factor favored Nick. We find the chancellor’s findings are supported by the
record.
¶15. The chancellor noted that “both parties describe that they are the ones who provide
for the child’s needs in bathing, meals, dressing, etc., while the children are in their care.”
Renee argues this “go[es] against the testimony at trial,” which showed that Nick’s parents
assisted in the child-care duties and shared those duties of primary caregiver with Nick.
Renee claims that because she “had much more involvement in the children’s care than
[Nick],” this factor should favor her.
¶16. However, the record shows Renee’s parents also assisted in caring for the children.
5
Indeed, at the time of trial, Renee lived with her parents, who assisted in the child-care duties
while Renee was at work. Thus, it appears multiple people including the children’s parents
and grandparents were involved in the children’s care. Simply because Renee claims to have
had “more involvement” is insufficient to reverse the chancellor’s conclusions on this issue.
¶17. Renee further argues that Nick’s failure to pay child support until ordered to do so
should have been a negative reflection of his parenting skills. She cites no authority in
support of her argument.
¶18. In Hollon v. Hollon, 784 So. 2d 943, 948 (¶16) (Miss. 2001), the chancellor found that
“neither parties[’] parenting skills, willingness[,] [or] capacity to take care of the child, [wa]s
greater than the other.” On appeal, the supreme court disagreed and found the mother held
an advantage over the father. Id. at (¶18). The supreme court noted that the father “had not
paid his child support obligations regularly, forcing [the mother] to garnish his wages.” Id.
at (¶16) (emphasis added).
¶19. Here, unlike in Hollon, there is no evidence that Nick failed to pay his child-support
obligations. Instead, the record shows once the child-support payments were determined and
ordered, Nick executed a withholding order to have those payments automatically withheld
from his paycheck. Additionally, the record shows that prior to the court-ordered child
support, Nick provided for the children while in his custody. Moreover, text messages
between the parties indicate Nick requested copies “of what [Renee thought he] owe[d].”
However, according to Nick, he never received the requested copies. Nick testified that he
never received a copy of a bill for the children and declined to pay it. We find Renee’s
6
argument regarding child support fails.
¶20. Importantly, while not mentioned or addressed by Renee, the record reflects that the
chancellor was very concerned about photographs admitted into evidence that showed the
children’s condition while in Renee’s care. The chancellor found that the photographs were
“compelling as to the care given the children while with Renee when compared to that given
by Nick” and stated “this factor impacts the parenting skills testimony offered by each parent
and favors Nick.”
¶21. The photographs, which were taken beginning in February 2014, show bruises, cuts,
scrapes, scars, rashes, and bug bites on the children. The chancellor found that the
photographs were “troubling . . . as to their continuance over an extended period of time
while the children [were] with Renee.”
¶22. At trial, the GAL, who had reviewed a copy of the photographs, also expressed
concern “as to the vastness and the regularity and the consistency of the injuries and the
rashes and the type of abrasions that do not seem of the norm for regular child’s play.” The
GAL explained:
[c]hildren that age can get scars, but, again, I think every — all of the injuries
and issues that those pictures depict collectively are certainly of a concern.
Whether it be an issue of a lack of supervision, I don’t know; but, ultimately,
it raises concerns as to how it’s happening so regularly and so consistently.
¶23. When questioned about the photographs, Renee simply stated that “at least 50 percent
of [the bruises, cuts, scrapes, rashes, etc.] occurred at Nick’s house.” However, she admitted
that she had no support for her claim.
¶24. Overall, we determine that the chancellor’s findings regarding this factor are
7
supported by substantial evidence in the record. Renee’s claim that this factor should favor
her is without merit.
IV. Physical and Mental Health and Age of the Parents
¶25. The GAL found, and the chancellor agreed, that this factor favored Nick. Renee
argues “the only evidence offered at trial that [she] suffered from any mental-health issues
were the reports from Dr. Smallwood and Dr. Galloway, who[] also stated that [Nick]
suffered from the same issues.” Thus, it appears Renee claims this factor should have been
neutral. We disagree and find the GAL and chancellor’s concern over Renee’s mental health
is supported by the record.
¶26. Dr. Smallwood conducted a psychological evaluation on the parties and found that
“Nick and Renee have the very same traits related to the potential personality disorders of
histrionic, compulsive, and narcissistic.” Additionally, Dr. Galloway noted that both parties
had mental-health issues that may interfere with their taking care of a minor child. However,
Dr. Galloway opined that “Renee presented many symptoms of having more severe mental[-]
health issues but that her diagnoses was underdetermined at that time.” Thus, while Dr.
Smallwood found Nick and Renee “ha[d] the very same traits,” Dr. Galloway determined
Renee had more significant mental-health issues.
¶27. In her report, the GAL also expressed concern over Renee’s mental health.
Specifically, the GAL noted “Renee’s admission to a suicide attempt and her extreme
paranoid thoughts.” These paranoid thoughts included Renee’s belief that “she had been
implanted with a device in her arm that evidenced a blue light when she lifted her arm over
8
a dish mat [that] Nick [had] purchased.”
¶28. At trial, Nick discussed Renee’s paranoid thoughts. He acknowledged Dr.
Smallwood’s opinion regarding “the same traits” but noted:
I don’t have a history of the things that [Renee] does; and even though a
multiple[-]choice test might put us categorically in the same area, I don’t have
the same history that she does. I’ve never kept bladed scalpels around my
kids. I’ve never torn up my car looking for cameras, I never thought that
people were bugging my house, and I have never thought people were
following me.
¶29. Additionally, the record shows Renee often gave conflicting testimony and made
uncorroborated claims against Nick. Renee blamed Nick for her financial situation and
advised the GAL that her financial issues, including her Chapter 7 bankruptcy, were Nick’s
fault because he was abusive. Moreover, Renee testified that every one of Nick’s witnesses
lied. However, when asked if she had any evidence to support that statement other than her
own testimony, Renee responded, “Unfortunately, I don’t . . . .”
¶30. Renee acknowledged at trial that aside from the counseling and evaluations ordered
by the chancellor, she had not undergone any treatment for any mental-health issues. Instead,
she claimed her paranoia and mental-health issues were no longer a problem since her
separation from Nick.
¶31. The GAL testified at trial that “as of today” she had no concerns about the mental
health of either party. However, she stated that, based on the trial testimony, she would not
modify her Albright findings or her “ultimate conclusion of the Albright factors.”
¶32. We find that although the GAL did not express any current concern, there is
substantial evidence in the record to support the GAL and chancellor’s overall concern for
9
Renee’s mental health. Thus, there is no manifest error in the chancellor’s findings on this
factor.
V. Other Factors Relevant to the Parent-Child Relationship
¶33. The GAL found “Renee’s current living conditions [were] not ideal for the two
children” and noted that the two children “share a [bed]room with Renee, which includes
another person when their half-sibling, Sophia, stays during Renee’s visitation periods.” The
GAL concluded that the parties’ living environments favored Nick. The chancellor agreed
and recognized that although “a home need not be an expensive or lavish one to meet the
needs of raising children,” there are serious concerns about Renee’s home environment
“including cleanliness, space, furnishings, and supervision.”4
¶34. Renee claims she was “unfairly punished” and “improperly sanctioned . . . for the
incorrect belief that she shared a bedroom with the children.” Renee argues “this factor
should have been held as neutral.” We disagree.
¶35. The chancellor’s findings regarding this factor were based on more than a shared
bedroom. While Renee addressed the chancellor’s concern over the shared bedroom, she
failed to address the chancellor’s other concerns regarding cleanliness and supervision.
Moreover, even though the children no longer share a bedroom with Renee, the record shows
that Renee and the two children live in a three-bedroom, two-bath home with four other
people (Renee’s parents, her brother, and her daughter, Sophia). We find the chancellor’s
conclusions regarding Renee’s living environment are relevant to the parent-child
4
The chancellor’s supervision concerns were related to the photographs discussed
above.
10
relationship and supported by the record.
CONCLUSION
¶36. “An Albright analysis is not a mathematical equation.” Mitchell, 180 So. 3d at 816
(¶10). The chancellor “is in the best position to listen to the witnesses, observe their
demeanor, and determine the credibility of the witnesses and what weight ought to be
ascribed to the evidence given by those witnesses.” Id. at (¶14) (internal quotation mark
omitted). We “cannot reweigh the evidence and must defer to the [chancellor]’s findings of
facts, so long as they are supported by substantial evidence.” Id. at (¶10). “When a
chancellor properly applies and considers [the Albright factors], there is no manifest error.”
Id. at 819 (¶31).
¶37. We find the chancellor properly applied and considered the Albright factors. The
chancellor’s award of physical custody to Nick is supported by substantial evidence in the
record. We therefore affirm.
¶38. AFFIRMED.
LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE
AND TINDELL, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
11
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"pile_set_name": "FreeLaw"
} |
776 F.Supp.2d 845 (2011)
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff,
v.
Donald E. NOKES, Jr., Patricia Ann Nokes, Steven Davis, Brandon Phelps, Nathan Evans, State of Indiana, Porter County Department of Family and Children, Starke County Department of Family and Children, Janet Carlson, Jade Palin, and Kathleen Hannon, Defendants.
No. 2:08-CV-312 PPS.
United States District Court, N.D. Indiana, Hammond Division.
March 2, 2011.
*848 John H. Halstead, Querrey & Harrow, Merrillville, IN, for Plaintiff.
Jere L. Humphrey, Wyland Humphrey Wagner Gifford & Clevenger LLP, Plymouth, IN, Elizabeth A. Flynn, Braje Nelson & Janes LLP, Michigan City, IN, Anna Marie Hearn, Law Office of Anna M. Hearn, Valparaiso, IN, for Defendants.
OPINION AND ORDER
PHILIP P. SIMON, Chief Judge.
Nathan Evans claims in a state court complaint that he was sexually abused while in the custody of his foster parents, Donald and Patricia Nokes. In this insurance coverage dispute, brought by way of a declaratory judgment, State Farm says that it has no duty to defend or indemnify the Nokes or anyone else involved in Evans' state court case. State Farm now seeks summary judgment [DE 100]. Because Evans' is an insured under the policy issued by State Farm, and the policy explicitly excludes coverage for injuries to an insured, State Farm's Motion for Summary Judgment is GRANTED.
BACKGROUND
The following facts are undisputed. Since 1975, Defendants Donald and Patricia Nokes have been licensed foster parents in the State of Indiana. [DE 105-1 at 42.] Defendant Evans was the Nokes' foster child from 1996 to 2002, living with the Nokes about three-fourths of the time over that five and a half year period. (Evans sometimes stayed with his mother on weekends). [DE 102-11 at 30-15-31:11; DE 105-2 at 27:20-28:20.] Evans lived with the Nokes from the age of nine to fifteen, [DE 102-11 at 9:15], and he struggled with mental health issues during that period, [DE 102-11 at 27:25-28:5; 29:7-15]. Defendant Steven Davis also lived with the Nokes as a foster child for over five years, and Defendant Brandon Phelps was the Nokes' foster child for about a year. [DE 102-11 at 10:6-11:5, 20:22-24.] As foster parents, the Nokes were responsible for the daily care of the children, which included feeding, clothing, sheltering, supervising, and disciplining them. [DE 101 at 4.] The Nokes were also responsible for taking their foster children to school, counseling, and doctor visits. [Id.] Each of the foster children shared a room with another child where they kept their clothes, toys, and personal belongings. [Id.]
Throughout the period relevant to this suit, the Nokes had a homeowner's insurance policy with State Farm which provided that State Farm would pay for claims "brought against an insured for damages because of bodily injury ... caused by an occurrence." [Id. at 5.] Importantly, the policy excluded coverage for "bodily injury to ... any insured." [Id. at 6.] An insured is defined as "you [the Nokes] and, if residents of your household, any other person *849 under the age of 21 who is in the care of a person described above." [Id. at 5.] It also excludes bodily injury "which is either expected or intended by an insured." [Id. at 6.]
Evans filed a complaint in Indiana's Porter Superior Court alleging that he was sexually molested by Phelps and physically abused by Davis while they were all foster children living with Mr. and Mrs. Nokes. [DE 102-1.] Evans, Phelps, and Davis were all under 21 years of age at the time Evans was allegedly abused. [DE 101 at 3.] The state court complaint alleges that the Nokes, Phelps, Davis, Porter County Department of Family and Children, Starke County Department of Family and Children, the State of Indiana, and Porter County employees Janet Carlson, Jade Palin, and Kathleen Hannon violated Evans' civil rights under 42 U.S.C. § 1983, and that the negligence of many of these defendants (all but the alleged abusers, Phelps and Davis) caused the abuse. [DE 102-1.] This was not the first time one of the Nokes' foster children was accused of sexual abuse; State Farm had defended a previous lawsuit against the Nokes brought by a visitor to their home who claimed to have also been the victim of sexual abuse at the hands of one of the foster kids. [DE 105-11.]
As a result of Evans' suit, State Farm brought this declaratory judgment action against all parties named in the state court complaint. [DE 30.] State Farm seeks a judgment declaring that, pursuant to the Nokes' State Farm homeowner's insurance policy, it owes no duty to defend or indemnify the Nokes or any other insured, and no duty to any other defendant, relating to Evans' state court complaint. The Nokes, Evans, and Davis (which for simplicity's sake I will refer to collectively as "Defendants") filed separate responses to the motion, claiming that the Nokes' State Farm policy provides coverage for Evans' injuries, and, in any event, State Farm waived or is estopped from denying coverage.[1]
DISCUSSION
Summary judgment is appropriate "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).
Insurance contracts are subject to the same rules of construction as other contracts. Eli Lilly & Co. v. Home Ins. Co., 482 N.E.2d 467, 470 (Ind.1985). As a result, the interpretation of insurance contracts is primarily a question of law for the court. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind.2009). When interpreting an insurance policy, the court's goal is to determine the parties' intent as manifested in the insurance contract. Burkett v. Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind.App.2000). The court will give the language of the insurance policy its plain and ordinary meaning if it is clear and unambiguous. Id. A provision is ambiguous if it is susceptible to more than one reasonable interpretation. Am. Family Ins. v. Globe Am. Cas. Co., 774 N.E.2d 932, 935 (Ind.App.2002). But the mere fact that the parties disagree as to the interpretation of the policy language does not create an ambiguity. Id.
*850 A. The Nokes' State Farm Policy Does Not Cover Evans' Claims
The State Farm policy that was sold to Mr. and Mrs. Nokes specifically excludes coverage for "bodily injury to you or any insured." [DE 101 at 6]. So if Evans is an "insured" under the policy, the injuries he asserts in his state court complaint plainly are not covered. The policy defines an insured as "you [the Nokes] and, if residents of your house, ... any other person under the age of 21 who is in the care of a person described above." [Id. at 5.] The parties agree that Evans was under the age of 21 at the time of his alleged injuries. Thus, the issues here are whether Evans was a "resident" of the Nokes' house and whether he was "in the care" of the Nokes at the time of his injuries.
I first address whether Evans was a resident of the Nokes' home. For starters, the term "resident" in insurance contracts is unambiguous. Indiana Farmers Mutual Ins. Co. v. Imel, 817 N.E.2d 299, 304 (Ind.App.2004). While "resident" has no fixed or precise meaning in law, courts in Indiana look to whether an individual has "maintained a `fixed abode' in the household for some continuous amount of time." Allstate Ins. Co. v. Shockley, 793 F.Supp. 852, 856-57 (S.D.Ind.1991) (quoting Allstate Ins. Co. v. Neumann, 435 N.E.2d 591, 593 (Ind.App.1982)). In making this determination, I must look to: (1) whether the claimant maintained a physical presence in the insured's home, (2) whether he had the subjective intent to reside there, and (3) the nature of his access to the insured's home and its contents. Imel, 817 N.E.2d at 304. I must analyze these factors by taking into account the totality of the circumstances. Allstate Ins. Co. v. Lawrence, 2010 WL 4386780, at *4 (S.D.Ind. Oct. 27, 2010) (citing Alexander v. Erie Ins. Exchange, 982 F.2d 1153, 1158-59 (7th Cir.1993) (applying Indiana law)). Notably, a resident "need not be a permanent member of the household, and in fact can be the resident of another household at the same time, but must be more than a transient." Shockley, 793 F.Supp. at 856; see also Neumann, 435 N.E.2d at 593 ("When used as a term to distinguish from both transient status and domicile, `resident' may be said to refer to one having a fixed abode but only for the time being.").
Here, Evans resided with the Nokes during the relevant period. Evans was the Nokes' foster child for five and a half years, living with the Nokes about three-fourths of the time during that period. He had a bedroom at the Nokes' house where he kept his clothes, toys, and personal belongings. As foster parents, the Nokes performed general parenting duties, including feeding, clothing, sheltering, supervising, and disciplining Evans, and they were responsible for taking him to school and counseling and doctor visits. In fact, Evans who lived with the Nokes from ages nine to fifteen and had documented mental health issues was totally dependent on the Nokes' care. See Shockley, 793 F.Supp. at 857 (children were "residents" under their great aunt's insurance policy during their eight week stay because the children "were completely dependent upon Edith for food, clothing, medicine, shelter, and parental care."); Imel, 817 N.E.2d at 305 (finding minor resided with his primary caregiver). This demonstrates that the parties intended Evans to reside with the Nokes. Shockley, 793 F.Supp. at 857. Based on the above, Evans clearly maintained a physical presence in the Nokes' house, as Evans and the Nokes intended, and he had sufficient access to the house to demonstrate his residency.
The Defendants arguments to the contrary are unpersuasive. First, that Evans *851 did not reside with the Nokes throughout the entire five and a half year period, sometimes staying with his biological mother on weekends, is of no matter the above conditions sufficiently demonstrate that Evans continuously maintained a fixed, rather than transient abode at the Nokes' house while he was their foster child. See Neumann, 435 N.E.2d at 593; see Aetna Cas. & Sur. Co. v. Crafton, 551 N.E.2d 893, 896 (Ind.App.1990) (finding that a minor resided with his father despite "sporadic and irregular" weekend visits with his mother). In addition, the fact that, as a foster child, Evans remained a ward of the State of Indiana, and the State maintained control over many of the Nokes' parental decisions, does not change the fact that Evans resided in the Nokes' house. See Lawrence, 2010 WL 4386780, at *4-5 (foster child staying with foster parents for a little over two months classified as a resident under insurance policy); Merchants Mutual Ins. Co. v. Artis, 907 F.Supp. 886, 890 (E.D.Pa.1995) (the State's legal custody of foster child irrelevant to residency). This is especially true because Evans was almost entirely dependent on the Nokes for his daily care. See Shockley, 793 F.Supp. at 857.
In sum, for over five years, Evans continually lived in the Nokes' home. Occasional or sporadic visits to his biological mom's home did not change his residence anymore than if he went on weekend trips to his grandma's house or trips to summer camp. As a result, based on the totality of the circumstances, it is clear that Evans was a resident of the Nokes' home under the State Farm policy.
The next issue is whether Evans was "in the care" of the Nokes. Similar to their arguments to defeat the residency requirement, the Defendants argue that Evans was not "in the care" of the Nokes because, as a ward of the State, Evans was in the care of the State of Indiana. The Defendants claim that the State controlled all of Evans' day to day activities, asserting "the Nokes could not do anything without seeking the State's approval." [DE 104 at 8.] Moreover, the Defendants note that all of the Nokes' foster children were considered temporary placements in the Nokes' home, and the State determined the length of time that the foster children lived in the Nokes' home. The Nokes analogize their role as foster parents to that of "glorified babysitters" or possibly, hotel-keeps. [DE 105-2 at 39:15-41:12.] So, according to the Defendants, because the Nokes had no control over Evans, and Evans was the legal responsibility of the State, at the very least, a question of fact exists as to whether he was in the Nokes' care.
Notably, the parties do not argue that the phrase "in the care" is ambiguous.[2] Indeed, courts that have analyzed the phrase have found it unambiguous, assigning the phrase its plain, ordinary, and common meaning. See, e.g., State Farm Fire and Cas. Co. v. Odom, 799 F.2d 247, 250 (6th Cir.1986); Oliva v. Vermont Mut. Ins. Co., 150 N.H. 563, 842 A.2d 92, 95 (2004); Henderson v. State Farm Fire and Casualty Co., 460 Mich. 348, 596 N.W.2d 190, 195-96 (1999); State Farm Fire and Cas. Co. v. Breazell, 324 S.C. 228, 478 S.E.2d 831, 833 (1996); Mitsock v. Erie Ins. Exchange, 909 A.2d 828, 833 (Pa.Sup.2006); Priest v. Roncone, 370 N.J.Super. 537, 851 A.2d 751, 755 (2004); Cierzan ex rel. Weis v. Kriegel, 259 Wis.2d 264, 655 N.W.2d *852 217, 221 (Wis.App.2002); see also Artis, 907 F.Supp. at 890. Consistent with these findings, and because the parties do not contest the issue, I do not believe reasonable people would honestly differ as to the meaning of the phrase, Am. Family, 774 N.E.2d at 935, and I apply "in the care" pursuant to its plain and ordinary meaning.
In applying "in the care" to these facts, the parties suggest that I adopt the list of eight factors set forth by the Michigan Supreme Court in Henderson v. State Farm Fire and Casualty Co., 596 N.W.2d at 195-96. Indeed, other courts that have analyzed the phrase have relied on Henderson's non-exclusive, common sense list of factors. See Oliva, 842 A.2d at 95-96; Priest, 851 A.2d at 755-56; Cierzan, 655 N.W.2d at 221-22; Mitsock, 909 A.2d at 834. These factors consider: (1) is there a legal responsibility to care for the person; (2) is there some form of dependency (e.g., food, clothing, shelter, transportation); (3) is there a supervisory or disciplinary responsibility; (4) is the person providing the care providing substantial essential financial support; (5) is the living arrangement temporary or permanent, including how long it has been in existence and is expected to continue; (6) what is the age of the person allegedly "in the care" of another; (7) what is the mental or physical health status of the person allegedly "in the care" of another; and (8) is the person allegedly "in the care" of another gainfully employed. Henderson, 596 N.W.2d at 195-96.
Considering these factors, and a common understanding of the phrase (not to mention common sense), Evans was clearly in the care of the Nokes. First, the Nokes had a legal responsibility to care for Evans. By definition, a "foster parent" is "an individual who provides care and supervision to a child." Ind.Code § 31-9-2-47 (emphasis added). As noted above, these responsibilities included feeding, clothing, sheltering, supervising, and disciplining Evans. In fact, given Evans' age and capacity, he was completely dependent on the Nokes for his care during the five plus years he was the Nokes' foster child. The Nokes admitted as much in their discovery responses. [See DE 102-10 (Nokes Requests for Admissions ¶ 5) (admitting Evans was in their care); DE 102-11 at 23:10-12 (P. Nokes Dep.) ("Q: Were all three of them (Nokes, Phelps, and Davis) in your care during that period? A: Yes, they were.") (emphasis added).]
Moreover, while the State supported the Nokes financially, as it does all foster parents, the Nokes spent more on Evans than they received from the State. [DE 111-2 at 18:23-19:1 (D. Nokes Dep).] And, contrary to the Defendants' claim, while the State of Indiana retained legal custody of Evans and dictated some of the ways in which the Nokes cared for Evans, this does not alter the outcome. See Odom, 799 F.2d at 250 ("in the care" "cannot be reasonably understood to mean only legal care" but instead "includes legal and physical care") (emphasis in original); Artis, 907 F.Supp. at 890 (holding that foster children were in the care of their foster parents rather than the State, noting "we are not concerned with which person or entity had legal custody of the children"); see also Mitsock, 909 A.2d at 834 (finding "Henderson's first factor should almost always be dispositive and result in a finding that the individual is `in the care' of the insured, as long as the insured provides financial support (factor 4) or the basic necessities of life (factor 2)."). As a result, Evans was in the Nokes' care during the five and a half years he was their foster child.
*853 To sum up: Evans was a resident of the Nokes' home, under the age of 21, and in the Nokes' care. Therefore, he was an insured under the policy. Because the State Farm policy explicitly excludes coverage for injuries to an insured, State Farm has no duty to defend or indemnify anyone for the matters raised in Evans' state court complaint.[3]
B. No Waiver or Estoppel
Notwithstanding any policy exclusions, the Defendants claim that State Farm waived or is estopped from denying coverage for Evans' injuries because of statements made by State Farm representatives to the Nokes about their future coverage. The alleged statements were made during the mediation of an unrelated but similar incident in which a young girl, M.N., brought suit against the Nokes after being sexually abused by one of the Nokes' foster children. M.N. was a visitor to the Nokes' home and thus unlike Evans she was not an "insured" under the policy. So State Farm defended the Nokes in M.N.'s subsequent lawsuit and eventually paid to settle the claim. In an August 25, 2009 affidavit, the Nokes testified that State Farm representatives assured them at the mediation that their policy would not be cancelled because of M.N.'s claims, and State Farm would continue to cover the Nokes pursuant to the policy, which it did. [See DE 111-10 ¶ 6 (Nokes Aug. 25, 2009 Aff.).] Similarly, Donald Nokes testified at his July 20, 2010 deposition:
Q. You were asked in the interrogatories well, you also stated that one of the reasons why you thought you should have coverage in this case, in Nathan Evans' case, was because State Farm had paid to settle the [M.N.] claim. Does that sound familiar to you?
A. Yes, it does. During the [mediation], there were two people from State Farm, a man and a woman who had come down from Michigan. And I remember specifically asking them if we were going to be cancelled or not covered because of this, and they assured me that they would be (sic).
Q. You asked them what?
A. I asked them if State Farm would cancel us or not cover us anymore on stuff, you know. And I was told that they would cover us and that let me see how they put it. Oh, I can't remember exactly how the gentleman put it, but it was to the fact that we would be covered.
Q. Your concern was that your policy would be cancelled because you had such a significant claim?
A. Right.
. . . .
Q. And during the [M.N.] case, there were some issues that other children had been molested in your care while no. There were other children that were molested while in the foster home, do you remember that? Do you recall a video that I presented?
A. Yes.
Q. And that other children said that they had been molested?
A. I don't remember the contents of that video.
*854 Q. But do you recall anything that you took out of that video that there may be other claims rising?
A. I don't remember that I took anything like that out of there.
Q. Okay. But you did ask whether there would be coverage for future claims; correct?
A. I had asked that before we saw the video because I was concerned that I had all my insurance, my house, my cars, everything was with State Farm. And were they going to drop me and was I going to have to go and find another insurance company? Or would they continue to cover us, you know, for everything that was coming up, if anything was coming up? You know, an accident or if you know, that type of thing here, what have you.
Q. Also, you were still foster parents, so you were also concerned whether other foster children had been molested at that time and if there were going to be future lawsuits; correct?
A. I don't remember if that was my concern, but I was concerned with making sure we had we were insured at the time I talked to these people.
[DE 111-2 at 9:4-25; 105-2 at 30:15-31:21.] Donald Nokes testified that he did not remember having any other conversations with State Farm about future coverage. [DE 105-2 at 11:13-23.] Patricia Nokes testified at her deposition that she did not recall discussing their future coverage with State Farm representatives. [DE 111-1 at 15:25-16:3.]
Then, in a November 5, 2010 affidavit, dated after State Farm moved for summary judgment, both Donald and Patricia Nokes changed their story in a nuanced but important way. They alleged that at the mediation State Farm "told us that if a claim like [M.N.'s] happened again, State Farm would insure us and that was why we kept insurance with State Farm." [DE 103 ¶ 7.] According to the Nokes, based on this assurance, they did not purchase additional insurance and they were unable to hire their own attorney to defend against Evans' claim. [Id. ¶¶ 8-11.] So, they argue, State Farm may not now deny coverage for Evans' claims.
First off, I must address the discrepancy between the August 25, 2009 affidavit and the Nokes' July 20, 2010 deposition testimony, on the one hand, and the November 5, 2010 affidavit, on the other. As the above quotes indicate, Donald Nokes testified at his deposition, "I can't remember exactly how the gentleman put it, but it was to the fact that we would be covered" going forward [DE 111-2 at 9:20-22], which is in accord with the Nokes' August 25, 2009 affidavit. He testified that the Nokes were concerned that their multiple State Farm policies would be cancelled as a result of M.N.'s claims, and went on to state "I don't remember" being concerned about future lawsuits regarding molestation by his foster children. [DE 105-2 at 31:15-21.] Donald Nokes also did not remember having any other conversations with State Farm about their future coverage, and, in fact, Patricia Nokes could not recall any discussion with State Farm representatives regarding their policy, notwithstanding the August 25, 2009 affidavit.
The Nokes' November 5, 2010 affidavit, however which was filed in response to State Farm's motion for summary judgment coincidentally added an important statement to the Nokes' previous testimony. The Nokes' new testimony was that State Farm promised at the mediation to insure the Nokes "if a claim like M.N.'s happened again." [DE 103 ¶ 7.] This is materially different than merely stating as they did in their earlier affidavit and depositions that they were concerned *855 about having their policy cancelled and State Farm assuring them that it would not. Instead their new testimony as fleshed out in the recent affidavit suggests that State Farm promised to insure the Nokes for any future sex abuse claims concerning their foster children. The two are obviously quite different the promise to not cancel coverage, on the one hand, with promising to cover all future claims of sex abuse, on the other.
The Seventh Circuit is "highly critical of efforts to patch up a party's deposition with his or her own subsequent affidavit." Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir.1995) (collecting cases and noting that almost all affidavits are drafted by attorneys, not affiants). "The concern in litigation, of course, is that a party will first admit no knowledge of a fact but will later come up with a specific recollection that would override the earlier admission." Buckner v. Sam's Club, Inc., 75 F.3d 290, 293 (7th Cir.1996); see also Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1210 (7th Cir.1993) ("A party cannot claim a lack of general knowledge about a subject and later make a statement which requires detailed knowledge about the same subject."). It is thus well-settled that while a subsequent affidavit may clarify ambiguous or confusing deposition testimony, if a party fails to explain a conflict between a deposition and subsequent affidavit, the contradictory affidavit may not create a genuine issue of material fact. Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993).
Here, the Nokes fail to explain why their deposition testimony and earlier affidavit, all of which lack details about their conversation with State Farm aside from noting that State Farm promised not to drop their coverage altogether, conflict with their more specific affidavit filed in response to State Farm's motion for summary judgment. As a result, I find the Nokes' testimony in the November 5, 2010 affidavit regarding State Farm's representations to the Nokes inadmissible. See Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir.2001) (affidavit inadmissible where party provided no acceptable explanation for the discrepancy between affidavit and prior deposition testimony); Adusumilli v. City of Chicago, 164 F.3d 353, 360 (7th Cir.1998) (affirming district court's decision to strike affidavit where the affidavit reported incidents of sexual harassment and the plaintiff previously had testified that she "[could] not recall any incidents of harassment"); Darnell v. Target Stores, 16 F.3d 174, 176-77 (7th Cir.1994) (disregarding subsequent affidavit because it was more specific than deposition).
With this preliminary issue out of the way, I will now move on to the Defendants' estoppel and waiver arguments. The Defendants asserts that promissory estoppel, equitable estoppel, or waiver prevents State Farm from denying the Nokes coverage for Evans' claim. Promissory estoppel occurs when: (1) a promise by the promissor; (2) is made with the expectation that the promisee will rely thereon; (3) which induces reasonable reliance by the promisee; (4) of a definite and substantial nature; and (5) injustice can be avoided only by enforcement of the promise. Brown v. Branch, 758 N.E.2d 48, 52 (Ind.2001). A party claiming equitable estoppel must show its "lack of knowledge and of the means of knowledge as to the facts in question, reliance upon the conduct of the party estopped, and action based thereon of such a character as to change his position prejudicially." Money Store Inv. Corp. v. Summers, 849 N.E.2d 544, 547 (Ind.2006); Rager v. Dade Behring, Inc., 210 F.3d 776, 779 (7th Cir.2000) (equitable estoppel requires both actual *856 and reasonable reliance). Waiver is similar but distinct from estoppel and is defined as the voluntary and intentional relinquishment of a known right, claim, or privilege. Tate v. Secura Ins., 587 N.E.2d 665, 671 (Ind.1992).
The Defendants' estoppel arguments fail. First, the Defendants overstate the significance of the statements made by the State Farm representatives. According to Donald Nokes' deposition and the Nokes' August 25, 2009 affidavit, State Farm told the Nokes at the mediation that it would continue to provide coverage under the Nokes' policy after the M.N. case was resolved. And indeed, it did. The Defendants argue that based on this, State Farm is estopped from denying coverage for Evans' claims. But it does not follow that by defending the Nokes in the M.N. case and promising to cover the Nokes thereafter (fairly unremarkable in itself), that State Farm obligated itself to cover the Nokes for any future sex abuse claim brought against one of the Nokes' foster children, even if the claim otherwise fell outside the Nokes' policy. Recall that M.N. was not a resident of the Nokes' house, and thus not an "insured" under the Nokes' State Farm policy. So Mr. and Mrs. Nokes could not possibly believe that State Farm intended to waive an exclusion in the Nokes policy that was not at issue in M.N.'s case the exclusion for injuries to insureds.
Promising not to drop the Nokes' coverage is very different than promising to cover the Nokes for specific types of future incidents. As a matter of law, the Defendants' reliance on such an interpretation of State Farm's statements was patently unreasonable. See Biberstine v. N.Y. Blower Co., 625 N.E.2d 1308, 1316 (Ind.App.1994) ("[W]here the evidence is so clear as to be susceptible of only one reasonable inference, it is for the court to determine as a matter of law whether plaintiff was justified in relying on the representation."); Garwood Packaging, Inc. v. Allen & Co., 378 F.3d 698, 705 (7th Cir.2004) (same) (applying Indiana law).
For similar reasons, the Nokes' waiver argument has no merit. State Farm's assurance that it would continue covering the Nokes following M.N.'s claim does not remotely suggest that State Farm intended to waive its right to deny coverage for unrelated future claims, and in particular those claims that would otherwise fall outside of the policy's coverage. See City of Crown Point v. Misty Woods Properties, LLC, 864 N.E.2d 1069, 1079 (Ind.App.2007) (waiver "requir[es] both knowledge of the existence of the right and intention to relinquish it"). As a result, the Nokes' waiver argument also fails as a matter of law. Jackson v. DeFabis, 553 N.E.2d 1212, 1217 (Ind.App.1990) (holding question of waiver proper for summary judgment because action of party was not disputed, and only the inference and legal conclusions to be drawn from the facts were argued).
CONCLUSION
For the foregoing reasons, State Farm's Motion for Summary Judgment is GRANTED. [DE 100.] Accordingly, because Nathan Evans was an "insured" under the Nokes' State Farm homeowner's insurance policy in effect during the relevant period, pursuant to the policy, State Farm has no duty to defend or indemnify the Nokes or any other insured, and no duty to any other defendant in this action, for the claims asserted by Nathan Evans in the state court complaint at issue here, including any claims for punitive damages.
SO ORDERED.
NOTES
[1] Phelps, Porter County Department of Family and Children, Starke County Department of Family and Children, the State of Indiana, Carlson, Palin, and Hannon failed to answer State Farm's complaint. On January 19, 2010, the Clerk entered default against these Defendants. [DE 81.] And while I denied State Farm's motion for default judgment because of the possibility of inconsistent results, I granted State Farm leave to re-file its motion if judgment is reached against the remaining Defendants. [DE 90.]
[2] Davis off-handedly claims the meaning of "in the care" is "elusive," however, he provides no argument or support demonstrating why this is so. As a result, I disregard this assertion. See Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir.1998) (per curiam) (undeveloped arguments are waived).
[3] State Farm also argues the abuse was intentional, and is thus not an "occurrence" under the policy and must be excluded as an "expected or intended" act of an insured. In addition, it claims that any punitive damages are not insured. Because I find that Evans' injuries are not covered by the policy because he was an insured, I need not reach these arguments.
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IN THE SUPREME COURT OF THE STATE OF MONTANA
No. AF 07-0016
______________
IN THE MATTER OF THE ADOPTION OF THE )
NEW RULES OF APPELLATE PROCEDURE ) ORDER
______________
On January 10, 2007, we issued our Order for a public comment period in this
matter. The public comment period was to end at 5:00 p.m. on March 30, 2007.
However, inasmuch as the proposed revisions to the Montana Rules of Appellate
Procedure will not be noticed in The Montana Lawyer until the publication of the March
2007 issue, we conclude that it is appropriate that we extend the comment period.
Therefore,
IT IS ORDERED that the public comment period referred to in our January 10,
2007, Order is extended from March 30, 2007, to 5:00 p.m. April 16, 2007. Each person
submitting comments shall file an original and 7 copies of his or her comments with the
Clerk of this Court within the time provided.
IT IS FURTHER ORDERED that a copy of this Order with the attached Word and
PDF document links be electronically published on the State Bar of Montana website,
http://www.montanabar.org, and on the website for the Judicial Branch,
http://www.courts.mt.gov, and that a copy of this Order be published in the next available
issue of The Montana Lawyer.
IT IS FURTHER ORDERED that notice of this Order be served by electronic
transmission to: the Executive Director of the State Bar of Montana; the editor of The
Montana Lawyer; the State Law Librarian; the Code Commissioner for the State of
Montana; the Clerks of the District Courts; the District Court Judges; the President of the
Montana Judges’ Association; and the President of the Montana Magistrates’
Association.
1
Dated this 27th day of February, 2007.
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
2
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13 N.Y.3d 812 (2009)
ARTS4ALL, LTD., et al., Respondents,
v.
JUDITH L. HANCOCK, Appellant, and Counterclaim Plaintiff-Appellant.
DANIEL Y.C. NG et al., Additional Counterclaim Defendants, and
PETER OSGOOD, Additional Counterclaim Defendant-Respondent.
Court of Appeals of New York.
Decided October 20, 2009.
*813 Trachtenberg Rodes & Friedberg LLP, New York City (David G. Trachtenberg of counsel), for appellant.
Law Offices of Zachary R. Greenhill, P.C., New York City (Zachary R. Greenhill of counsel), for respondents.
Concur: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES. Taking no part: Chief Judge LIPPMAN.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered as unnecessary. The courts below did not abuse their discretion in dismissing defendant's counterclaims pursuant to CPLR 3126 (3) (see Arts4All, Ltd. v Hancock, 12 NY3d 846 [2009]). Defendant's remaining argument is without merit.
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182 Ariz. 132 (1995)
893 P.2d 1295
PAM TRANSPORT, an Arkansas corporation, Andrew Mertyris, Plaintiffs-Appellants,
v.
FREIGHTLINER CORPORATION, a Delaware corporation, TRW Ross Gear, a division of TRW Inc., an Ohio corporation, John Does I-X, Black Corporations I-X and White Partnerships I-X, Defendants-Appellees.
No. CV-94-0074-CQ.
Supreme Court of Arizona.
April 27, 1995.
Struckmeyer and Wilson by Donald R. Wilson and William G. Caravetta, Phoenix, for appellants.
Bowman & Brooke by David C. Auther and Christine L. Meyer, Phoenix, for appellee Freightliner Corp.
Fennemore Craig by Paul J. Mooney and Timothy Berg, Phoenix, for appellee TRW Ross Gear.
OPINION
ZLAKET, Justice.
On November 28, 1988, in the course and scope of his employment with PAM Transport, appellant Andrew Mertyris was driving a 1989 Freightliner tractor-truck when it collided with another vehicle. The other driver, Grady Ashcraft, died as a result of the accident. His survivors filed suit against Mertyris and PAM Transport. Appellees Freightliner and TRW Ross Gear, the manufacturer of certain truck parts, were not parties to the litigation.
In March of 1991, appellants settled the claim by paying $985,000 to Ashcraft's survivors. The settlement expressly extinguished the liability of appellants and all other firms or corporations responsible for the death. Thereafter, appellants sought contribution from appellees pursuant to A.R.S. § 12-2501. The United States District Court dismissed the action on the ground that A.R.S. § 12-2506, which abolished joint and several liability, precluded *133 contribution. On appeal, the Ninth Circuit Court of Appeals certified the following question to this court:
Under Arizona law, has A.R.S. § 12-2506 abolished the right of a tortfeasor to contribution from another tortfeasor under A.R.S. § 12-2501 when, before any apportionment of fault by a trier of fact, that tortfeasor settles any and all claims arising out of an accident?
We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(6), A.R.S. § 12-1861, and Ariz. R.Sup.Ct. Rule 27.
Our answer to the question is that the legislature has eliminated the right of contribution where a settling defendant's liability is "several only." A.R.S. § 12-2506(D).[1] The result is different in those limited situations in which joint liability survives. This conclusion is supported by the express language of the statute and by the case law.
A.R.S. § 12-2501 permits contribution to joint tortfeasors who have paid more than their pro rata shares of liability for an injury. This right applies even if such payments are made by only some tortfeasors, as long as the settlement also extinguishes the liability of the others and is reasonable. See § 12-2501(D). Section 12-2503(A) allows enforcement of contribution by separate action. Thus, such a claim would likely be available to appellants if they and appellees had been jointly and severally liable for Ashcraft's death, because the settlement extinguished everyone's liability.
In 1987, however, joint and several liability was almost completely abolished. See A.R.S. § 12-2506(A). Thereafter, defendants could be held liable only according to their respective percentages of fault. Id. Certain exceptions are listed in § 12-2506(D), see supra note 1, and subsection (E) provides that "[i]f a defendant is found jointly and severally liable pursuant to subsection D, the defendant has the right to contribution pursuant to this chapter." (Emphasis added.)[2]
The statutory intent is clear. Moreover, two principles of construction support our conclusion that contribution is precluded where defendants are not jointly and severally liable. First, if a statute specifies under what conditions it is effective, we can ordinarily infer that it excludes all others. See, e.g., State v. Allred, 102 Ariz. 102, 103-04, 425 P.2d 572, 573-74 (1967) (applying the doctrine of expressio unius est exclusio alterius).[3] Here, subsection (E) provides that contribution is allowed if defendants are jointly and severally liable. We can assume, therefore, that it is not permitted among defendants who are not subject to such liability. Second, we attempt to give "meaningful operation" to all provisions of a statute. See, e.g., Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991). If contribution were still permitted whether or not defendants were jointly and severally liable, subsection (E) would be unnecessary.
This result is consistent with previous decisions. Most recently, the court of appeals decided that where there is no joint and several liability, "there is no right of contribution when a single tortfeasor settles a plaintiff's claim against him." Cella Barr Assocs., Inc. v. Cohen, 177 Ariz. 480, 484-85, 868 P.2d 1063, 1067-68 (App. 1994) (issued after briefing and oral argument of this case in the Ninth Circuit Court of Appeals). We agree, having indicated in previous opinions *134 that contribution is unnecessary in the absence of joint and several liability. Dietz v. General Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991); City of Tucson v. Superior Court, 165 Ariz. 236, 240 n. 2, 798 P.2d 374, 378 n. 2 (1990). Contribution is intended to prevent plaintiffs from forcing one defendant to bear the entire burden of damages "according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff's whim or spite, or his collusion with the other wrongdoer." William L. Prosser, Law of Torts § 50, at 307 (4th ed. 1971). Once joint liability is eliminated, defendants are no longer subject to judgments exceeding their respective shares of damages. Plaintiffs' unilateral actions cannot cause total liability to be imposed on any one defendant. Thus, the primary reason for contribution disappears.
Appellants argue that in Parker v. Vanell, 170 Ariz. 350, 353, 824 P.2d 746, 749 (1992), we implied that a right of contribution would continue to exist in cases involving "common liability" among multiple defendants even after the abrogation of joint and several liability. To the extent such an implication may be found in that opinion's dicta, we now disapprove it. The holding in Parker was clearly stated more than once and is completely consistent with our decision today: "common liability" refers to "the dollar amount shared by joint tortfeasors for which they were legally answerable." Id. at 352, 354, 824 P.2d at 748, 750 (emphasis added).
FELDMAN, C.J., MOELLER, V.C.J., and CORCORAN and MARTONE, JJ., concur.
NOTES
[1] The liability of each defendant is several only and is not joint, except that:
1. A party is responsible for the fault of another person, or for payment of the proportionate share of another person, if both the party and the other person were acting in concert or if the other person was acting as an agent or servant of the party.
2. Nothing in [§ 12-2506] prohibits the imposition of joint and several liability in a cause of action relating to hazardous wastes or substances or solid waste disposal sites.
A.R.S. § 12-2506(D).
[2] Subsection (E) undermines appellants' argument that if contribution were no longer permitted in cases other than those involving joint and several liability, A.R.S. § 12-2501 and § 12-2503 would be superfluous. These sections still apply to cases that fall within the § 12-2506(D) exceptions to the abrogation of joint and several liability.
[3] Appellants' attempt to distinguish Allred on the ground that it involved a garnishment action whereas this case deals with a contribution claim falls short of the mark.
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546 F.2d 617
UNITED STATES of America, Plaintiff-Appellee,v.Kenneth W. DAVIS, James B. Cobb and Ferrell Bennett, Jr.,Defendants- Appellants.
No. 75-2092.
United States Court of Appeals,Fifth Circuit.
Feb. 3, 1977.
Michael A. Linsky (Court-appointed), Tampa, Fla., for Davis.
J. Scott Taylor (Court-appointed), Tampa, Fla., for Bennett.
Oscar Blasingame (Court-appointed), St. Petersburg, Fla., for Cobb.
John L. Briggs, U.S. Atty., Jacksonville, Fla., John J. Klein, Atty., Dept. of Justice, Crim. Div., Washington, D.C., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before MORGAN and GEE, Circuit Judges, and HUNTER,* District Judge.
GEE, Circuit Judge:
1
Appellants Bennett and Cobb were convicted of conspiracy to import marijuana and of importation and possession of marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 952(a), § 955, § 960(a)(1), (2), and § 963. Appellant Davis was convicted of conspiracy only. Bennett received concurrent two and one-half year sentences, followed by five years special parole; Cobb received concurrent eighteen-month sentences and five years special parole; Davis was placed on three years probation pursuant to 18 U.S.C. § 5010(a).
2
In November 1974, a DC-3 airplane landed at Winterhaven, Florida, carrying 500 pounds of marijuana. Cobb was arrested when he began unloading suitcases of marijuana from the plane into his waiting van; Bennett was co-owner of the DC-3, and Davis was in the plane, having served as Bennett's "representative" on the trip to and from Jamaica.1 Co-defendants Shepherd and Kiken pled guilty and testified for the government. The pilot of the plane, Barnett, proved to be a government informer who also was a key prosecution witness.
3
Appellant Bennett complains of the admission of testimony by these witnesses of his prior dope dealings. Bennett's sole defense at trial was that he was coerced into lending his plane to these smugglers by their threats of violence to himself and his family. Bennett's motivation and intent were at issue, and the trial judge admitted the evidence of previous importation of marijuana only as to Bennett. Before the complained-of testimony was admitted, the court gave the following instruction, admonishing the jury to consider the evidence only for the purpose of determining Bennett's intent and not as proof of commission of the acts charged:
4
In other words, if you should find from the evidence about to be given to you by the witness, Kiken, that the defendant (Bennett) prior to the time of the events charged in the indictment was involved in similar transactions, that evidence, evidence of what he did at some prior time, would not be proof that he did what is charged in this indictment.
5
He is on trial only with respect to what he did or didn't do under the charges in the indictment. Now, that is to say that the evidence that the defendant may have committed an earlier act of a like nature may not be considered in determining whether the accused Bennett committed any of the offenses charged in the indictment.
6
Now, if you should find beyond a reasonable doubt from other evidence in the case that the accused Bennett did the acts charged in the indictment, then you may consider evidence as to the alleged earlier acts of a like nature in determining the state of mind or intent with which the accused Bennett did the acts charged in the particular parts of the indictment or counts which you are considering and where proof of (an) alleged earlier act of a like nature is established by evidence which is clear and conclusive, you may draw therefrom the inference that in doing the acts charged in the counts of the indictment, the accused Bennett acted willfully and with specific intent and not through mistake, inadvertence or for any innocent reason.
7
Another limiting instruction was given at the close of trial. We find the trial judge properly exercised his discretion in admitting the evidence under the intent exception to the general rule excluding evidence of prior similar misconduct. Bloom v. United States, 538 F.2d 704 (5th Cir., 1976); United States v. San Martin, 505 F.2d 918 (5th Cir. 1974).
8
Appellants Cobb and Davis both complain that they were prejudiced by the admission of the prior importation schemes of Bennett. Davis urges that his motion to sever should have been granted to protect him from a verdict of guilt by association.
9
The joint trial of conspiracy defendants always presents the troublesome problem of limiting the jury's consideration of testimony admissible against some defendants but not others. But the decision as to whether the jury can sort out the evidence relevant to each defendant is firmly committed to the discretion of the trial court. The test which should guide the trial judge is set forth in Tillman v. United States :
10
"(C)an the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted."
11
406 F.2d 930, 935 (5th Cir. 1969), citing Peterson v. United States, 344 F.2d 419, 422 (5th Cir. 1965). Our court has held that the admission of past misconduct of some defendants does not dictate a severance to protect the other co-defendants from an inference of guilt by association.
12
It is further asserted by some appellants that the criminal records of their co-defendants below were prejudicial to their defense and should have been sufficient to warrant a severance. Similar grounds have generally been rejected. These grounds have been held insufficient even if the prior convictions were for similar offenses.
13
United States v. Perez, 489 F.2d 51, 67 (5th Cir. 1973) (citations omitted). Rather we have relied on careful instructions at the time such evidence is admitted to protect co-defendants in a conspiracy trial from the risk of guilt transference. Cf. United States v. Morado, 454 F.2d 167, 172 (5th Cir. 1972). Limiting instructions were given prior to the admission of testimony about Bennett's history of importing marijuana and at the close of the trial, charging the jury that the prior acts concerned only the defendant Bennett and did not concern the guilt or innocence of either Davis or Cobb. Our careful reading of the record in this case convinces us that the trial judge's instructions here were a model for imparting caution and care to the jury in its consideration of each defendant's guilt or innocence and in their reiterated strictures on the consideration of evidence of similar transactions or misconduct not the subject of the indictment.2 Neither Cobb nor Davis has convinced us that he was so prejudiced by the complained-of testimony that his conviction must be reversed.
14
Appellant Davis complains of the court's failure to grant his motion for acquittal on the charge of conspiracy.3 A review of the lengthy transcript in this case reveals slight evidence that Davis willfully joined the conspiracy charged, but we agree with the trial judge that there was enough to send the question to the jury, and, viewing the evidence presented most favorably to the government, as we must, we refuse to overturn their verdict of guilty.
15
All three appellants complain that judicial commentary and questioning during this lengthy trial exceeded proper bounds and denied them a fair trial. It is true that the trial judge played an active role, at times pointedly examining witnesses and defendants. But a federal judge is not consigned to the role of moderator; he may elicit further information he thinks would benefit the jury, and he may comment on the evidence, provided he makes it clear that all matters of fact are committed to the jury's ultimate determination. United States v. Cisneros, 491 F.2d 1068 (5th Cir. 1974), citing Querica v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). A careful review of the lengthy transcript before us convinces us that if the trial judge's questioning of defendants was at times aggressive,4 his overall management of the trial was even-handed and his instructions to the jury exceptionally lucid and careful.
16
Because we find no merit in any of appellants' complaints, the convictions below are all AFFIRMED.
*
Senior District Judge for the Western District of Louisiana, sitting by designation
1
Twelve others were indicted for this scheme of importing marijuana from Jamaica
2
The following instruction was given to the jury at the close of the trial:
There was evidence in the case about prior similar acts, about the fact that the defendant Ferrell Bennett had been engaged in marijuana dealings in the past. Barnett testified to conversations with Bennett which would indicate that. Kiken testified to actual participation in marijuana dealings with Bennett who Kiken said was a partner and Shepherd testified to the arrival of Bennett sopping wet at five o'clock in the morning. Now, this testimony about prior activities must be considered in a special way. First, let me warn you that that testimony is not in any way, shape or form a part of the crimes charged in this indictment and this testimony should not be considered by you with respect to the other two defendants, Davis or Cobb, because it doesn't affect them at all; it should be considered by you only with respect to Bennett and it should not be considered by you even in Bennett's case as the slightest proof of any conversations or acts allegedly constituting the charged conspiracy or in furtherance of the charged conspiracy. This evidence was received and may be considered by you only for the limited purpose of permitting the prosecution to show the defendant Bennett's motives, intent, inclination, purpose and association. Evidence that an act was done at one time or on one occasion is not any proof whatever that a similar act was done at another time or on another occasion. That is to say, evidence that the defendant may have committed an earlier act of a like nature may not be considered in determining whether the accused committed any offense charged in the indictment, nor may evidence of alleged earlier acts of a like nature be considered for any purpose unless you first find that the other evidence in the case standing alone establishes beyond a reasonable doubt that the accused did the particular acts charged on the particular count of the indictment under deliberation.
If you, the jury, should find beyond a reasonable doubt from other evidence in the case that the accused, Bennett, did the acts charged in the particular count under deliberation, then the jury may consider evidence as to an alleged earlier act of a like nature in determining the state of mind or intent which the accused Bennett with which the accused Bennett did the acts charged in the particular count of the indictment and where proof of an alleged earlier act of a like nature is established by evidence which is clear and conclusive, you may draw therefrom the inference that in doing the acts charged in the count of the indictment under consideration the accused Bennett acted willfully and with specific intent and not through mistake or inadvertence or for an innocent reason.
The administration of our system of criminal justice and our basic concepts of fair dealing are centered on the requirement then in each case the jury reach a result based solely on the charges made in the particular indictment and on the record with regard to those charges. That is a very fundamental concept of our law, ladies and gentlemen.
I was a little sorry that certain evidence came into the case which, by its nature was perhaps shocking to you and which may have upset you, but which had really nothing to do with the charges themselves in this case. They had something to do with the factual fabric and for that reason were relevant, but you must be very careful not to adopt the quick, expedient type of judgment that sometimes persons will adopt in their daily lives of saying, oh well, he's a bad man and so he must be guilty of this. This would be committing a very serious error. For instance, I heard about the dalliances in Jamaica, about Shepherd spending part of the night with Sheila; about Barnett apparently having had an affair while he was there and this alleged conversation on the plane when it returned from Jamaica concerning whether Davis did or did not have hashish hidden in his sock or in a valise. The evidence is contradictory on that point, but you see, this evidence might create a prejudice in your mind. You might be influenced by it and say, well, if he did that, he must have done this. Please, resist the temptation to come to any such conclusion. First of all, let me point out that you are not here to exercise a moral judgment. Even if you are shocked by any of this evidence, you must lay that aside. That is not intended to be evidence to convince you that they were guilty of these crimes.
Secondly, you must be very careful, you must be very careful to remember that there are specific charges made in this indictment and the defendants must be adjudged to be either guilty or innocent on the relevant evidence bearing upon the specific charges in this indictment. Davis is not accused of having illegally imported hashish. The evidence to that is contradictory in any event. He is not charged with that and he must not be judged guilty or innocent on the basis of that evidence.
I wish to caution you that proof of this prior activity on the part of Bennett does not prove the offense or offenses charged in this indictment even if you believe it. You may consider it solely on the question of intent which is one element of the crime as charged here. It will be up to you to determine whether you believe that testimony and if so, the weight that you will give it on the question of intent.
You must determine the guilt or innocence of each defendant under the conspiracy charge and under any other charge separately. Defendants are not tried in bunches. You must consider each case on the relevant evidence relating to that case. I charge you that the guilt of any defendant cannot be found on the basis of the declarations or statements of others unless the defendant whose case you are considering has been connected with a conspiracy as a participant. Guilt must be associated with an intent on the part of the defendant to commit the crime and such intent must appear from his own acts and conduct. If you have a reasonable doubt as to the intent of any defendant to commit the crime charged, you must return a verdict of not guilty.
3
Davis' motions for acquittal on the counts of importation and possession of marijuana were granted
4
Appellant Cobb complains of the following questioning by the court:
Q And there you were, caught with marijuana that you didn't want that these people had forced on you. Didn't it occur to you to say to this detective, why, they stuck me with this marijuana. Come and get it?
Although Cobb did not raise the issue that this questioning might violate the holding of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), by referring to Cobb's failure to explain his innocence despite his right to remain silent after receiving Miranda warnings, we have nevertheless examined the colloquy of the court to see if it runs aground on Doyle v. Ohio principles. We find that the court, in the sequence of questions of which this is a part, was not asking the defendant Cobb to explain his silence but rather was exploring testimony that Cobb ran when accosted and stated, when commanded to stop or be shot, "Go ahead and shoot, I might as well be dead anyway." The running and the statement occurred before Cobb's arrest and before Miranda warnings were given, and therefore, although the colloquy may be close to the line, we do not find reversible error under Doyle v. Ohio.
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733 S.W.2d 728 (1987)
293 Ark. 88
Ronald WARD, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 86-59.
Supreme Court of Arkansas.
July 20, 1987.
*729 Samuel Turner, Jr., West Memphis, Joseph B. Brown, Jr., Memphis, Tenn., for appellant.
Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
HICKMAN, Justice.
An all white Crittenden County jury convicted Ronald Ward, a 15 year old black male, of murdering three white people and sentenced him to death. All of the peremptory challenges exercised by the prosecuting attorney, eight in this case, were used to strike black people from the jury. We *730 find the state's use of the peremptory challenge violated the Equal Protection Clause of the United States Constitution and denied Ward a fair trial. Therefore, the judgment is reversed and the case remanded for a new trial. Numerous other errors are alleged, and we will address those questions which are likely to arise at the new trial.
Last year, in the case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court overruled its decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which allowed a defendant to challenge the exclusion of black people from juries. Swain was overruled because it "placed on defendants a crippling burden of proof." Since Swain, prosecutors have continued the practice of excluding black people from juries through the use of the peremptory challenge. A peremptory challenge can be made for no reason at all; a challenge for cause is usually for actual or implied bias. Ark.Stat.Ann. §§ 43-1919, 43-1920 (Repl. 1977). Challenges for cause by either party are unlimited. In a capital case the state has ten peremptory challenges, the defendant 12. Ark.Stat.Ann. §§ 43-1921, 43-1922 (Supp.1985).
In Batson, the court held that a defendant who could make a prima facie case of purposeful discrimination shifts the burden to the state to prove the exclusion of jurors is not based on race. This prima facie case may be made by "showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Another way is to demonstrate "total or seriously disproportionate exclusion of Negroes from jury venires." Another example for making a prima facie case is by showing a "pattern" of strikes, or questions and statements by a prosecuting attorney during voir dire.
When a defendant makes a prima facie case, the state must adequately explain the racial expulsion. "Mere general assertions that its official did not discriminate or that they properly performed their official duties" are inadequate explanations. This does not mean black people cannot be struck from a jury. It means that if a defendant makes a prima facie case of intentional discrimination, the state must offer some explanation other than race. The United States Supreme Court ruled the state must "articulate a neutral explanation related to the particular case to be tried." Batson v. Kentucky, supra. The trial judge must undertake a "sensitive inquiry" into the direct and circumstantial evidence available to decide if the state has made an adequate explanation. Batson v. Kentucky, supra.
In this case all of the state's peremptory challenges were used to exclude black people. After about four black persons had been struck by the state, the state complained that the defense had injected race into the proceedings forcing "the state to strike some black jurors or a black juror that they otherwise would not be predisposed to strike ..." The defense ceased those questions, yet the state used its remaining challenges to strike black people.
The trial judge was convinced that the state did not intentionally use its peremptory challenges to keep black people from the jury. But the trial judge did not conduct a "sensitive inquiry" into the matter. He did not require the state to explain why it had excluded the blacks when a motion for a mistrial was made earlier. A motion for a mistrial was repeated after the jury was selected and denied. The trial judge said that the state could or could not, as it saw fit, offer an explanation later.
The state did later explain, for the record, why each black person was excused. Some of the reasons were pretty thin. For example, one lady was excluded because she was unmarried, unemployed and lived on a large farm. The state said she appeared hostile. Henry Williams was struck because he had two children the age of the defendant. The state said the main reason he was struck was because he was "noncommittal." The state said that another juror was struck because an investigation uncovered the fact that her car had been used in cocaine trafficking. This information was not brought out during her voir dire examination. So this was not *731 before the trial judge at the time of his ruling. Another prospective black juror was excused because he referred to Ward as a "child," had read about the case, and heard rumors about it. We will not reiterate all the reasons given to exclude the eight black people, although one or two reasons given were acceptable. On the whole, the state clearly failed in its burden of proof. Actually, some explanations offered by the state were exactly the type of explanations the United States Supreme Court said were unsatisfactory.
Actions sometimes speak louder than words, and any prosecutor who uses all of his peremptory challenges to strike black people better have some good reasons available. We share Justice White's concern that the practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread. Discrimination within the judicial system is of the worst sort. The United States Supreme Court spoke strongly on the matter in Batson v. Kentucky, supra:
The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. (Cites omitted.) Discrimination within the judicial system is most pernicious because it is `a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.'
The best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members.
The murder victims in this case are two elderly ladies and a young boy. It was especially gruesome. Audrey Townsend, age 72, and Lois Townsend Jarvis, age 76, were found dead in their home in West Memphis, Arkansas, on the morning of April 12, 1985. Chris Simmons, age 12, a great-great nephew of the two ladies, was spending the night with them, which he usually did about once a month. The victims were stabbed many times. There was evidence that one of the women had been raped. A bloody butcher knife, evidently the murder weapon, was found in the kitchen sink. The house had been ransacked. A window had been broken to gain entry. The glass in a storm door was also broken as if entry was first sought through this door. A neighbor heard glass breaking sometime after 12:30 a.m. on April 12. The defendant was seen in the vicinity of the victims' residence about 12:30 a.m. The police began their investigation by talking to neighbors and everyone who was in the locality about the time of the crime.
Ronald Ward was first interrogated on April 16. He was not a suspect, and he was not warned of his rights. His grandmother, Lena Ward, came to police headquarters during his interrogation. Ward made a statement that he saw a fight between a man and a woman at the victims' house. He gave the police a description of the man. The police fingerprinted Ward at the conclusion of their questioning. Both Ward and his grandmother signed a consent to Ward's being fingerprinted. Ward's fingerprints were found on several objects in the house. In fact 21 separate prints of Ward's were found. Ward was arrested on April 18 and questioned again. He admitted he had broken into the house, but he insisted that he was forced to do so by two men. Ward said he left before any of the victims were killed.
Ward testified at trial. This time he said two men, named Tony Boyd and Willie Reed, forced him to enter the house. He admitted he had lied several times in his statements to the police. He said the main person threatening him was Willie Reed. He said he was raped by one of these men and Willie held a gun on him while he had sexual intercourse with one of the women. Ward denied killing any of the victims or seeing them killed.
We will now address the various objections to evidentiary and procedural rulings by the trial court raised on appeal. No argument is made that there was not substantial evidence to support the conviction.
*732 Prior to Ward's bond hearing in municipal court, an attorney, Ken Cook, was appointed to represent him. Cook went into a hallway to talk to Ward and was accompanied by a police officer with a tape recorder. Cook told Ward that their conversation was being recorded. When Cook asked Ward if there was anything Ward wanted him to tell the judge, Ward said: "Umm, somethin' came over me, it's just likeI didn't mean to, just somethin' came over me, somethin' just came over me, made me go in that house and stuff like that, I didn'tI just wasn't myself." The trial judge admitted the statement.
Ward argues that the statement was inadmissible because Ward's counsel was ineffective by not preventing him from speaking in front of the officer. This argument was not made to the trial court. At trial Ward argued the statement was inadmissible under the attorney/client privilege. A.R.E. Rule 502. The trial court ruled the statement was spontaneous and was not intended to be a privileged communication between attorney and client. We do not reach the argument of ineffective assistance of counsel because it was not raised below. Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986).
After Ward was arrested on April 18, 1986, he made a statement to the police. At the conclusion of the questioning, Ward asked the police if they wanted to know the location of the shotgun. They said yes and Ward told them it could be found in a culvert near the victims' home. The trial judge ruled that during Ward's interrogation he had asked for a lawyer at one point, and the officers did not cease their interrogation. All of Ward's statement after that request was excluded from evidence by the trial judge. Ward argues that the shotgun should also be excluded, because the statement regarding the shotgun was made after Ward had asked for a lawyer. The trial court found the statement was spontaneous and Ward waived his rights. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), does not prohibit the introduction of a statement if a defendant initiates a conversation after he has invoked his right to counsel and interrogation has ceased. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985); Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984). The officers testified they had concluded the interrogation, and as they were leaving the interrogation room, one said 35 minutes later, Ward asked them if they wanted to know where the gun was located. On appeal we consider the totality of the circumstances in such cases to determine if a defendant waives his right to counsel. Hickerson v. State, supra. In this case, we cannot say the trial judge abused his discretion in his determination.
Ward argues that the trial court should have granted a continuance so the defense could procure some witnesses who had been excused. This request was made late one night after the jury had found Ward guilty. The jury decided it wanted to finish the case. This circumstance will not likely recur at another trial. We do observe, however, that the trial judge should not just consider the desires of a jury in deciding whether to proceed into the night as opposed to reconvening the next day. The jury is not aware of a defendant's rights. The sentencing stage in a capital case should be given every consideration, considering both the rights of the state and the defendant.
One theory, if not the main theory, of the defense was that the residence of the victims was used for drug trafficking. Two men, one named Ricky Smith, had planned to rob the place and kill three white people residing there. Ronald Ward's name was mentioned as being "set up" to take the blame. The defense proffered the testimony of John Golden who testified he overheard Ricky Smith make these statements. Golden and his friend, Eddie Langford, drove Smith to Walls, Mississippi, for $20 the day before the murders. Smith was in a hurry, scared and shaking. Golden testified that Smith said "he did what he told him he was going to do," and that Golden would hear about it in the news in a few days. Golden testified that on Monday, April 15, 1983, he told police officials about his conversation with *733 Smith. Golden and a police officer drove to the house in Walls, Mississippi. He said they searched the house and found a brick of cocaine. Eddie Langford offered testimony to corroborate Golden's version of the trip to Mississippi. The trial judge excluded the testimony as hearsay because it may concern another criminal episode.
Ward argues the testimony was admissible under an exception to the hearsay rule, ARE Rule 804(b)(3), which provides:
Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietor interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.
The testimony of Golden and Langford is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. That may have been the basis for the trial court's ruling, but it is not clear. On a retrial the trial judge should so determine before deciding if the proffered testimony is admissible. See 4 Weinstein, Evidence, ¶ 804(b)(3)[03] (1985); see also Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987).
The testimony of Ruth Jones was also proffered and refused by the trial judge. Jones stated that she lived across the street from the victims and that Chris Simmons told her two years before that Simmons' mother, Belinda Simmons, was at home fixing "dope" with some other people. She also said a black man made a delivery to Belinda Simmons at the Simmons' house. The Simmonses had lived in the victims' home about two years before the murders. The trial judge excluded this evidence as too remote to be relevant. We cannot say he abused his discretion in this regard. White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978).
A fourth witness, Deputy Sheriff Jim Robinson, was asked if he had tried to serve a subpoena on Ricky Smith, a/k/a James Brown and Harry Smith, at the Twentieth Century Motel. Robinson said he was told by the manager that Smith checked out the morning of April 12, 1985. This testimony was properly excluded as hearsay. A.R.E. Rule 802.
An argument is made that Ward was denied a complete record for appeal. There was a dispute over the record, and the case was remanded to settle the record, which the trial judge did but not to Ward's satisfaction. This will not likely recur at retrial. However, the trial judge, as well as the bench in general, is reminded that there should not be "off the record" conferences. In Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980), we said:
All bench conferences and in chambers conferences should be `on the record' unless they involve matters unrelated to the current trial, in which case, a note to that effect may be made.
Such a practice will prevent disputes over the record which can result in the necessity for a new trial.
The appellant argues that subjecting a juvenile to the death penalty violates the constitution. We have held that the prosecuting attorney has the discretion to charge juveniles in any of three courts. Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980). Arkansas does not expressly prohibit the death penalty for a juvenile. See Note, The Death Penalty for Juveniles: A Constitutional Alternative, 7 J. Juv. Law 54 (1983). We join the majority of those states presented with the question which have decided that the imposition of the death penalty on a juvenile is not a per se violation of the Eighth Amendment to the United States Constitution. State v. Valencia, 124 Ariz. 139, 602 P.2d 807 *734 (1979); State v. Harris, 48 Ohio St.2d 351, 359 N.E.2d 67 (1976); Ice v. Commonwealth, 667 S.W.2d 671 (Ky.1984); High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983); Thompson v. State, 724 P.2d 780 (Ok.1986); Prejean v. Blackburn, 743 F.2d 1091 (5th Cir.1984); Trimble v. State, 300 Md. 387, 478 A.2d 1143 (1984); State v. Battle, 661 S.W.2d 487 (Mo.1983); Cannaday v. State, 455 So.2d 713 (Miss. 1984). We are aware that the United States Supreme Court has not ruled on the question but is expected to do so next term. Thompson v. State, 724 P.2d 780 (Okla.Crim.1986), cert. granted, ___ U.S. ___, 107 S.Ct. 1284, 94 L.Ed.2d 143 (1987).
Ward argues that the trial judge should have excluded from evidence Ward's fingerprints which were taken at his first interrogation. Ward makes two arguments. First, an Arkansas statute expressly prohibits fingerprinting of juveniles unless they are in custody for a violation of the law. Ark.Stat.Ann. § 45-419 (Supp. 1985). Second, the police conducted a "round-up" of individuals to gather evidence in violation of the constitution. See Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). We do not deem the action of the police in this case to be a round-up as in Davis. More importantly, both Ward and his grandmother, who was his guardian, signed a form expressly waiving any objection to Ward's being fingerprinted.
The trial judge ruled there was a valid waiver of Ward's right not to be fingerprinted. Ward argues that the statute plainly prohibit fingerprinting of a juvenile unless he is in custody for violation of the law. Undoubtedly, this law was passed to insure that juveniles would not have a criminal record unless they were charged. The existence of the statute does not mean such a right cannot be waived, because a constitutional right can be waived. The right to counsel can be waived in a juvenile proceeding. See Ark.Stat.Ann. § 45-413(2) (Supp.1985). The trial judge inquired whether Ward knew what he was doing, whether his grandmother knew what she was doing, and whether they made a knowing waiver of Ward's right. The judge found that they did. On appeal we determine if a defendant voluntarily and intelligently waived his rights based on the totality of the circumstances and affirm the trial court unless we can say the lower court was clearly wrong. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1980). We find Ward waived his right not to be fingerprinted.
Ward was charged with capital murder pursuant to Ark.Stat.Ann. § 41-1501(1)(c) (Repl.1977) in that he killed two or more people with premeditation and deliberation. After the trial commenced, the state offered evidence that a rape had occurred. Ward objected to the introduction of this evidence, and the judge ruled it was too late to make the objection; it should have been made before the trial began. The trial judge said the evidence of this felony was part of the "res geatae" of the crime and, therefore, relevant. We agree that the evidence was admissible regardless of the particular charge of capital murder. When other criminal acts are intermingled and contemporaneous with one another, they may be proved as part of the whole criminal scheme. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).
However, the trial judge was wrong when he changed the charge to the jury. He instructed the jury not only on the offense described in the information, but also on the offense relating to murder during the commission of a felony, in this case rape. Ark.Stat.Ann. § 41-1501(1)(a) (Repl. 1977). This was error. Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970). There are different elements of proof to these charges. According to the information, the state had to prove Ward acted with premeditation and deliberation and killed two or more people. As the jury was instructed, the state did not have to prove intent it only had to prove that the murders occurred during the course of the felony. This is not like the case of Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1986), where there is no difference in the elements of the crime of rape when the question is how the rape was committed.
*735 It is argued that the trial court was wrong in refusing to instruct the jury on Ark.Stat.Ann. § 41-1501(2) (Repl.1977). We cannot find in the record where this instruction was requested and offered by the defense, where the trial judge ruled on it, or where an objection was preserved. Therefore, we do not reach the question. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986).
It is argued that the trial judge denied the defendant the right to surrebuttal evidence during the mitigation phase of the trial. We cannot say the trial judge did deny such a request because this was something that arose in an off-the-record conference. It should not recur upon retrial.
Finally, the argument is made that Batson v. Kentucky, supra, should be applied to the sentencing phase of this case as well as the case in chief. That case applies to any petit jury where the defendant is a member of a cognizable racial group. See also Roman v. Abrams, 822 F.2d 214 (2nd Cir.1987).
We find the trial judge did not abuse his discretion in allowing the photographs of the victims into evidence. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
Reversed and remanded.
PURTLE, J., concurs.
PURTLE, Justice, concurring.
The majority opinion is outstanding and will in time become a landmark decision. I do not write to distract from the opinion in any respect. I write instead to appeal to the state and the trial court to try the case in a straightforward manner with the facts and evidence properly presented. It is the responsibility of the trial judge to see that a full and complete record is preserved.
There are several specific errors which need highlighting. First, the defense attorney who interviewed the appellant while the sheriff recorded the statement was clearly ineffective and this statement should not have been admitted. One can not say with absolute certainty that the introduction of the statement did not affect the result of the trial. I doubt that it did, but there is ample other evidence and there is no need to risk the chance that the United States Supreme Court might reverse.
Secondly, some of the photographs tended to arouse prejudice and passion. These photographs were gruesome indeed. In Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), we reversed because the photographs did not illuminate any issue which had not already been conclusively proved. I submit these extra gruesome photographs were not aimed at proof of any relevant matter.
I also feel it was error to exclude the testimony of Officer Robinson that he learned that the witness Smith had checked out of the motel when he went to serve a subpoena on him. He may state what he learned without giving hearsay testimony. Finally, the testimony of Jones and Golden should have been presented to the jury. Credibility of the witnesses is a matter for the jury. The trustworthiness of the testimony of witnesses is not a matter which has heretofore been considered within the discretion of the trial judge.
Any defendant is entitled to a fair and impartial trial before a proper jury. Anything less is not acceptable. This trial was by no means the worst I have seen. However, upon retrial I hope the court will consider the above suggestions.
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195 P.3d 492 (2008)
222 Or. App. 525
BOWERS
v.
V.R., INC.
No. A134262
Court of Appeals of Oregon.
September 24, 2008.
Affirmed without opinion.
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Blair v. Frank Whitcomb Construction Corp., No. 498-01 CnC (Norton, J., July 26, 2005)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]
STATE OF VERMONT
Chittenden County, ss.:
HOPE BLAIR, Individually and as Administratrix
of the Estate of Brian K. Blair, and NIKI BLAIR, In her
capacity as guardian of Bryana Blair
v.
FRANK W. WHITCOMB CONSTRUCTION
CORPORATION and STATE OF VERMONT
ENTRY
This case concerns a traffic accident in which the passenger, Brian K. Blair, was
killed. The plaintiffs have filed survival, wrongful death, and loss of consortium claims
against the State of Vermont and Frank W. Whitcomb Construction Corporation, which
was undergoing road work under contract with the State where the accident took place. In
a previous entry, this court denied the State’s summary judgment motion, holding that the
State was not protected by sovereign immunity. The State has filed a motion for
reconsideration or, in the alternative, for permission to appeal pursuant to V.R.A.P. 5 and
5.1.
The State raises no new legal or factual arguments that require modification of the
court’s entry. The State’s primary argument boils down to the claim that the court should
credit the State’s witnesses who allege that the regulatory standard in question—Standard
E-108—confers discretion upon highway engineers such that the acts or omissions of the
State employee in this case fell with the discretionary function exception to the Vermont
Tort Claims Act, 12 V.S.A. § 5601(e)(1). Standard E-108 evinces no such discretionary
language, but the State claims that its witness testimony “proves” it is discretionary.
The court begs to differ. Proof of discretionary standards would be language
written in the standard to the effect of: “This standard is discretionary.” See, e.g., Estate
of Gage v. State, 2005 VT 78, ¶ 9 (holding State guidelines discretionary where
guidelines provided “suggested criteria” for State engineers); Searles v. Agency of
Transp., 171 Vt. 562, 564 (2000) (mem.) (holding that statement concerning “engineering
judgment” rendered manual discretionary). The State, along with the engineers and
regulators who drafted Standard E-108, was capable of adding such language within
Standard E-108. It did not. Saying something is discretionary does not make it so.
The State also argues that the Manual on Uniform Traffic Control Devices
(MUTCD) confers discretion with respect to the State employee’s acts or omissions. As
the court noted in its entry, the standards appended to the contract for the construction
work in this case provided that “[a]ll traffic control devices shall conform to the contract
requirements and the MUTCD.” The conjunctive “and” means that this phrase must be
read as follows: (1) traffic control devices shall conform to the contract requirements
(e.g., Standard E-108) and (2) traffic control devices shall conform to the MUTCD. Even
if the MUTCD confers discretion, Standard E-108 does not. Thus, the MUTCD’s
discretionary language has no bearing on the court’s decision.
The State also takes issue with the court’s application of the presumption under
United States v. Gaubert, 499 U.S. 315 (1991), arguing that the court inappropriately
laden the State with the burden of proof to show that the discretion was “‘grounded in
social, economic, and political policy.’” Berkovitz v. United States, 486 U.S. 531, 537
(1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)). Under
Gaubert:
When established governmental policy, as expressed or
implied by statute, regulation, or agency guidelines, allows a
Government agent to exercise discretion, it must be presumed
that the agent's acts are grounded in policy when exercising
that discretion. For a complaint to survive a motion to
dismiss, it must allege facts which would support a finding
that the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory
regime.
499 U.S. at 324–25; see also Searles v. Agency of Transp., 171 Vt. 562, 563–64 (2000)
(adopting Gaubert analysis).
As the Gaubert Court held, the presumption that a government agent’s actions are
grounded in policy applies only where “governmental policy, as expressed or implied by
statute, regulation, or agency guidelines, allows a Government agent to exercise
discretion.” Standard E-108 does not confer discretion. The only possible discretion
would come from unwritten procedures and practices expressed by the State’s witnesses.
Such discretion does not give rise to a presumption that those same witnesses’ actions are
grounded in State policy. Hence, the State properly retained the burden to show that the
alleged discretion of its employees in this case was grounded in policy. As the State
failed to meet its burden, the court denied its summary judgment motion.
The court’s decision is also not affected by the Vermont Supreme Court’s most
recent pronouncement regarding the discretionary function exception. In Gage, the Court
held that the placement of guardrails is discretionary because “the State’s policy vested
extensive discretion in its highway officials” with regard to guardrails where the hazard
lies outside of thirty feet from the edge of the driving lane. 2005 VT 78, ¶¶ 6–7. The
Court also held that the guardrail “determination involved precisely the kind of policy
judgments—the weighing of risks, financial costs, and environmental and aesthetic
impacts—that the discretionary-function exception was designed to protect.” Id., ¶ 7.
Here, even were the court to credit the State’s evidence of discretion, the State
failed to demonstrate that the use of channelization devices involved weighing of risks,
financial costs, and environmental and aesthetic impacts. Although the State submitted
evidence that channelizing devices may render a roadway too narrow, those were not the
circumstances at the construction site in this case.1 The State also would not bear
1
The resident engineer at the construction site, William Flanders, testified that
channelization devices might have narrowed the roadway. Standard E-108 accounts for the
shoulder width in determining whether to use channelization devices. The width at the scene of
the accident—3.8 feet—was such that channelization devices would have been appropriate under
Standard E-108. A simple statement that the devices may have narrowed the roadway does not
support a holding that Flanders had to forgo channelization devices in favor of public safety.
3
significantly greater costs, given that the construction firm would ultimately be
responsible under the contract for providing traffic devices. Finally, in a temporary
construction site, the State is obviously not concerned with the environmental and
aesthetic impact of orange cones, rubber barrels, or blinking lights. In short, the State has
failed to provide any broader policy justification weighing against the use of
channelization devices where there is a 4–6 inch drop-off at the edge of a road under
construction and a 3.8 foot shoulder on which to place the channelization devices.
The plaintiff in Gage also provided a State standard to demonstrate that State
agents lacked discretion to leave out a guardrail at the location of the accident. The
standard, however, emphasized that its provisions were “suggested criteria,” not
mandates. Gage, 2005 VT 78, ¶ 9. Therefore, the standard differed from Standard E-108
in this case.
Finally, the State argues that the court erred in its interpretation of 12 V.S.A. §
5601(e)(8), which provides an exception to the State’s waiver of sovereign immunity for
“[a]ny claim arising from the selection of or purposeful deviation from a particular set of
standards for the planning and design of highways.” As the Vermont Supreme Court has
held, in interpreting a statute, “[t]he Legislature is presumed to have intended the plain,
ordinary meaning of the adopted statutory language. If the statute is unambiguous and the
words have plain meaning, we accept that plain meaning as the intent of the Legislature
and our inquiry proceeds no further.” Springfield Terminal Ry. Co. v. Agency of Transp.,
174 Vt. 341, 346 (2002) (citation omitted). Under its plain meaning, “planning and
design of highways” refers to highways on which one would drive on a day-to-day basis,
not those on which one would negotiate construction sites. The State would have the
court read this phrase to mean “planning and design of the construction of highways.”
That is not the plain meaning of the phrase.
The cases that the State cites in support of its interpretation of § 5601(e)(8) are
inapposite. Lane v. State, 174 Vt. 219 (2002), addressed the State’s “decisions to pave the
highway with open graded pavement.” Id. at 229. This had nothing to do with the safety
procedures used in actually paving the highway. It merely concerned the design of the
finished highway. McIntosh v. Sullivan, 875 A.2d 459 (Conn. 2005), addressed a
Channelization devices always narrow the roadway. That appears to be the point of using them—
to warn drivers against going off the edge of a drop-off.
4
defective highway liability statute, Conn. Gen. Stat. § 13a-144, for which there is no
analog under Vermont law. Dept. of Transp. v. Dupree, 570 S.E.2d 1 (Ga. App. 2002),
concerned a statute stating: “‘plan or design for construction of or improvement to
highways, roads, streets, bridges, or other public works.’” Id. at 7 (quoting Ga. Code
Ann. § 50-21-24(10)) (emphasis added). If anything, this case supports the court’s
decision, as § 5601(e)(8) lacks the “construction of or improvement to” language and
merely provides an exception for planning or design of highways. Finally, Haynes v.
Franklin, 767 N.E.2d 1146 (Ohio 2002), interprets a political subdivision tort liability
statute that excepts “governmental functions” which include “the maintenance and repair
of roads.” Id. at 1149 (citing Ohio Rev. Code § 2744.01(C)(2)(e)). Again, § 5601(e)(8) is
not so worded.
Accordingly, the court declines to revisit its prior decision and denies the State’s
motion for reconsideration.
Turning to the State’s alternative motion for permission to appeal, the State argues
that an interlocutory appeal is appropriate pursuant to V.R.A.P. 5.1. Codifying the
collateral order doctrine, this rule provides that:
a superior judge . . . may permit an appeal to be taken from
any interlocutory order or ruling if the judge finds that the
order or ruling conclusively determines a disputed question,
resolves an important issue completely separate from the
merits of the action, and will be effectively unreviewable on
appeal from a final judgment.
V.R.A.P. 5.1(a). Such an interlocutory appeal “is available only ‘in the small number of
extraordinary cases where the normal appellate route will almost surely work injustice.’”
V.R.A.P. 5.1, Reporter’s Notes—1990 Amendment (quoting In re Maple Tree Place
Assocs., 151 Vt. 331, 333 (1989) (per curiam)).
Courts have been inclined to grant interlocutory review of absolute and qualified
immunity determinations given the personal expense to government officials in partaking
in a full trial after a denial of immunity from suit. See, e.g., Mitchell v. Forsyth, 472 U.S.
511, 527–30 (1985); Murray v. White, 155 Vt. 621, 626–28 (1991); 15A Wright, et al.,
Federal Practice and Procedure § 3914.10 (2005). The same reasoning does not
5
necessarily extend to governments as a whole with respect to sovereign immunity
determinations, though.
Although appeals often have been allowed, the government
defendants involved in these cases cannot assert any
substantial measure of the interests that were relied upon to
permit appeal by individual officials. The burden of
continuing litigation is not as likely to discourage courageous
action, distract from continuing duties, or deter responsible
people from accepting public office. . . . Many government
parties, further, can fairly be described as institutional
litigants that routinely bear the burdens of trial. Real
advantages would flow from adopting a clear rule that
domestic government bodies cannot themselves invoke the
immunity appeal doctrine made available to government
officials.
Wright, et al., supra.
At least two federal courts have determined that because U.S. sovereign immunity
is akin to a freedom from liability, rather than a freedom from suit altogether, collateral
order review is inappropriate for pre-trial sovereign immunity decisions. See State of
Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir. 1995) (“Because federal sovereign
immunity is a defense to liability rather than a right to be free from trial, the benefits of
immunity are not lost if review is postponed.”); Pullman Const. Industr., Inc. v. United
States, 23 F.3d 1166, 1169 (7th Cir. 1994) (holding that U.S. sovereign immunity does
not give rise to collateral order review because, unlike Eleventh Amendment and Foreign
Sovereign Immunities Act, sovereign immunity confers right not to pay damages, not
right to be free from suit); see also CSX Transp., Inc. v. Kissimmee Utility Auth., 153
F.3d 1283, 1286 (11th Cir. 1998) (same, applying Florida sovereign immunity law). But
see In re Sealed Case No. 99-3091, 192 F.3d 995, 999 (C.A.D.C. 1999) (holding that
sovereign immunity gives rise to collateral order review).
Vermont sovereign immunity differs from U.S. sovereign immunity, though. The
Vermont Supreme Court has held that whether sovereign immunity exists is a
jurisdictional question. Lane v. State, 174 Vt. 219, 222 (2002). “The controlling law is
well settled. Lawsuits against the State are barred unless the State waives its sovereign
immunity.” Estate of Gage v. State, 2005 VT 78, ¶ 4 (citing Denis Bail Bonds, Inc. v.
6
State, 159 Vt. 481, 484–85 (1993)). Thus, unlike U.S. sovereign immunity, Vermont
sovereign immunity is more akin to freedom from suit than freedom from liability.
Accordingly, collateral order review is as appropriate with sovereign immunity
decisions as with absolute and qualified immunity determinations. The V.R.A.P. 5.1(a)
standards are met here. The court’s summary judgment denial (as well as the above
denial of the State’s motion for reconsideration) constitutes a conclusive determination of
the disputed question regarding sovereign immunity. Whether the State can enjoy
sovereign immunity is an issue separate from the merits of this action. And because
sovereign immunity protects the State from suits, the court’s decision that the State
cannot enjoy sovereign immunity is effectively unreviewable from a final judgment
order, which would occur most likely after the parties have tried the case on the merits.
The court therefore grants the State’s motion to appeal the court’s summary judgment
order regarding the State’s sovereign immunity in this case.2 This case shall be stayed
pending the results of the State’s appeal.
ORDER
For the foregoing reasons, the State’s motion for reconsideration is DENIED and
the State’s motion for permission to appeal is GRANTED. This case shall be STAYED
pending the results of the State’s appeal.
Dated at Burlington, Vermont, July 26, 2005.
___________/s/_____________
Judge
2
Given the court’s decision pursuant to V.R.A.P. 5.1, the court need not address whether
an interlocutory appeal is appropriate under V.R.A.P. 5.
7
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10-5038-cv
Public Employees Retirement Assoc. of New Mexico, et al. v. Rothstein et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of February, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 Circuit Judges.
9 ROSLYNN R. MAUSKOPF
10 District Judge.*
11
12
13 In Re: American International Group, Inc Securities
14 Litigation
15 __________________________________________________
16
17 ALAN ROTHSTEIN, MOLLYE ROTHSTEIN,
18
19 Objectors - Appellants,
20
21 MARISA ROTHSTEIN, SHARYN ROTHSTEIN,
22
23 Objectors,
24
25 -v.- 10-5038
26
27 OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM, STATE TEACHERS
28 RETIREMENT SYSTEM OF OHIO, OHIO POLICE AND FIRE PENSION
29 FUND,
30
31 Plaintiffs - Appellees,
*
Judge Roslynn R. Mauskopf, of the United States
District Court for the Eastern District of New York, sitting
by designation.
1
2 and,
3
4 PUBLIC EMPLOYEES RETIREMENT ASSOCIATION OF NEW MEXICO,
5 MICHAEL FEDER, on behalf of himself and all others similarly
6 situated, PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF
7 MISSISSIPPI, JEROME NOLL, Individually and on behalf of all
8 others similarly situated, STEPHAN FRANK, on behalf of
9 himself and all others similarly situated, JOSEPH SCUILLA,
10 EUGENE OLSON, ROBERT J. CASEY, II, on behalf of himself and
11 all others similarly situated, LISA M. CROUCH, on behalf of
12 herself and all others similarly situated, MICHAEL CASSIDY,
13 on behalf of herself and all others similarly situated, ANNE
14 E. FLYNN, ROBERT D. JAFFEE IRA ROLLOVER, ROBERT D. & PHYLLIS
15 A. JAFFEE FAMILY FOUNDATION, ROBERT D. JAFFE, as Trustee of
16 the Robert D. Jaffee Revocable Trust, SAN FRANCISCO
17 EMPLOYEES' RETIREMENT SYSTEM,
18
19 Plaintiffs,
20
21 -v.-
22
23 PRICEWATERHOUSECOOPERS LLP,
24
25 Defendant - Appellee,
26
27 and,
28
29 MAURICE GREENBERG, HOWARD SMITH, THOMAS TIZZIO, MARTIN J.
30 SULLIVAN, CHRISTIAN MILTON, FRANK J. HOENEMEYER, AXEL I.
31 FREUDMANN, RICHARD A. GROSIAK, DONALD P. KANAK, PATRICIA R.
32 MCCANN, STARR INTERNATIONAL COMPANY, INC., CORINNE P.
33 GREENBERG, MAURICE R. HANK GREENBERG, C.V. STARR & CO.,
34 INC., MICHAEL J. CASTELLI, CITIGROUP GLOBAL MARKET, FKA
35 SALOMON SMITH BARNEY, GOLDMAN SACHS & CO., JP MORGAN CHASE &
36 CO., MERRILL LYNCH AND COMPANY, MORGAN STANLEY, MICHAEL L.
37 MURPHY, RICHMOND INSURANCE COMPANY, LIMITED, UNION EXCESS
38 REINSURANCE COMPANY, INCORPORATED, EVAN GREENBERG, ELI
39 BROAD, AXA FINANCIAL, INC., WACHOVIA SECURITIES, INC., JOHN
40 A. GRAF, AMERICAN INTERNATIONAL GROUP, INC., GENERAL
41 REINSURANCE CORPORATION, RONALD FERGUSON, JOHN HOULDSWORTH,
42 RICHARD NAPIER,
43
44 Defendants,
2
1 and,
2
3 COMPLETE CLAIMS SOLUTIONS, LLC,
4
5 Claims Administrator - Appellee.
6
7
8 FOR APPELLANT: N. ALBERT BACHARACH, JR., Gainesville,
9 FL.
10
11
12 FOR APPELLEE: THOMAS G. RAFFERTY, (Antony L. Ryan, on
13 the brief), Cravath, Swaine & Moore LLP,
14 New York, NY, for Defendant-Appellee
15 PricewaterhouseCoopers LLP.
16
17 THOMAS A. DUBBS, (Louis Gottlieb, Barry
18 Michael Okun, on the brief), Labaton
19 Sucharow LLP, New York, NY, for
20 Appellees-Plaintiffs Ohio State Funds;
21 Co-Lead Counsel to the Class.
22
23 ALAN S. KOPIT, Hahn Loeser & Parks LLP,
24 Cleveland, OH, Special Counsel to the
25 Attorney General of Ohio and the
26 Appellees-Plaintiffs Ohio State Funds;
27 Co-Lead Counsel to the Class.
28
29 Appeal from the United States District Court for the
30 Southern District of New York (Batts, J.)
31
32 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
33 AND DECREED that the judgment of the United States District
34 Court for the Southern District of New York be AFFIRMED.
35 Objector-Appellants, the Rothsteins, appeal from a
36 judgment of the United States District Court for the
37 Southern District of New York (Batts, J.), overruling their
38 objection and approving a settlement between Plaintiffs-
3
1 Appellees and Defendants-Appellees. We assume the parties’
2 familiarity with the underlying facts and procedural
3 history.
4 The Rothsteins appeal the district court’s denial of
5 their objection to the settlement on the basis of a
6 purportedly defective Notice of Settlement. They argue that
7 the Notice of Settlement failed to satisfy the requirements
8 of the Private Securities Litigation Reform Act of 1995
9 (“PSLRA”) because it did not include a statement from each
10 party regarding the amount of damages per share each
11 believed would be recoverable if plaintiffs were to prevail
12 on each claim. The plain language of 15 U.S.C. § 78u-
13 4(a)(7)(B)(ii), on which the Rothsteins rely, however, does
14 not require that the parties provide their respective views
15 about recoverable damages in the event they disagree about
16 the amount recoverable. Rather, the plain language of the
17 PSLRA clearly requires an amount recoverable be provided
18 only in the case that the parties agree on that amount. 15
19 U.S.C. § 78u-4(a)(7)(B)(i). Here, the parties disagreed
20 about damages recoverable, making 15 U.S.C. § 78u-
21 4(a)(7)(B)(ii) rather than (B)(i) applicable. 15 U.S.C.
22 § 78u-4(a)(7)(B)(ii) only requires parties who disagree
23 regarding the amount of damages per share to provide “a
4
1 statement from each settling party concerning the issue or
2 issues on which the parties disagree.” The Notice of
3 Settlement complied with the PSLRA in this regard. 15
4 U.S.C. § 78u-4(a)(7)(B)(ii) required no more.
5 The Rothsteins’ interpretation of the statute
6 contradicts the statute’s plain language and finds no
7 support in the precedent of this or any other circuit. We
8 decline to read into the PSLRA a requirement that Congress
9 did not include. See Russello v. United States, 464 U.S.
10 16, 23 (1983). The district court properly overruled the
11 Rothsteins’ objection.
12 For the foregoing reasons, the judgment of the district
13 court is hereby AFFIRMED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
5
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400 Mich. 192 (1977)
253 N.W.2d 650
PEOPLE
v.
STANTON
Docket No. 58626.
Supreme Court of Michigan.
Decided June 2, 1977.
Frank J. Kelley, Attorney General, Robert A. *193 Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Judd R. Spray, Assistant Prosecuting Attorney, for the people.
Adams, Goler & Williams for defendant.
PER CURIAM:
Defendant was charged with being an inmate in possession of a weapon which might be used to injure a convict or to assist a convict to escape. MCLA 800.283; MSA 28.1623; 1909 PA 17 as amended by 1972 PA 105. The determinative issue is whether the 1972 amendment to § 3 of 1909 PA 17 violates the title-object limitation in Const 1963, art 4, § 24. The circuit court quashed the information on the grounds that the statutory language did violate the title-object limitation, but the Court of Appeals reversed over the dissent of Judge Maher. 69 Mich App 495; 245 NW2d 106 (1976). Pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the Court of Appeals and reinstate the judgment of the circuit court.
1909 PA 17 was designed to keep weapons, liquor and narcotics out of the state prison system. The act was entitled as follows:
"AN ACT to prohibit the bringing into prisons of all weapons, or other implements which may be used to injure any convict or person or in assisting any convict to escape from punishment, or the selling or furnishing of same to convicts; to prohibit the bringing into prisons of all spirituous or fermented liquors, drugs, medicines, poisons, opium, morphine or any kind or character of narcotics, or the giving, selling or furnishing of spirituous or fermented liquors, drugs, medicines, poisons, opium, morphine or any other kind or character of narcotics to convicts or paroled prisoners and providing a penalty for the violation hereof." 1909 PA 17 (Emphasis supplied).
*194 Before its amendment in 1972, § 3 of 1909 PA 17 prohibited the following conduct:
"No weapon or other implement which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment, shall be sold, given away or furnished to any convict in any prison, or any building appurtenant thereto, or on the land granted to or owned or leased by the state for the use and benefit of the prisoners; nor shall any weapon or other implement which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment, be brought into any prison or any building appurtenant thereto, or onto the land granted to or owned or leased by the state for the use and benefit of the prisoners; nor shall any weapon or other implement, which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment, be sold, given away, or furnished, either directly or indirectly, to any convict either in or anywhere outside of the prison, or be disposed of in such a manner, or in such a place that it may be secured by any convict in the prison." (Emphasis supplied.)
In 1972, the Legislature added one sentence to § 3:
"A convict without authorization, shall not have on his person or under his control or in his possession any weapon or other implement which may be used to injure any convict or other person, or to assist any convict to escape from imprisonment." (Emphasis supplied.)
The 1972 amendment did not alter the act's title. For this reason, defendant contends that the statute as it now reads violates Const 1963, art 4, § 24:
"No law shall embrace more than one object, which shall be expressed in its title."
*195 We agree that the 1972 amendment, proscribing possession by a convict of a weapon, exceeds the scope of the title which proscribes as to weapons their being brought into prisons or sold or furnished to convicts. The instant violation of the title-object limitation is of the same species as that referred to in Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971). The Court held there that § 7 of the governmental tort liability act, MCLA 691.1401 et seq.; MSA 3.996(101) et seq., providing that governmental agencies were immune from "tort liability", was invalid because it exceeded the scope of the title of the act. The act's title created immunity for the narrower class of governmental acts "caused by negligence". As in Maki, the body of the present statute (as amended), speaks more broadly than its restrictively-speaking title.
The original legislation appears to be aimed at the acts of persons other than the convict who "sold", "gave", "furnished", or "brought" the designated contraband to a convict in prison. The title of 1909 PA 17 accurately reflects this focus. Indeed, it appears that the acts charged in the information could not have been punished under the statute as it read prior to the 1972 amendment.
The prosecutor states in his brief that the defendant "was charged with being a convict who, without authorization, had possession of a sharpened spike, a weapon or other instrument being of the type which may be used to injure a convict or other person or to assist a convict to escape", a violation of MCLA 800.283; MSA 28.1623. It was the 1972 amendment that enlarged the scope of the persons subject to prosecution under the act to include the convicts themselves should they "control" or have "possession" of a proscribed weapon. *196 Yet, the act's title does not reveal the existence of this new criminal class. The Legislature did not in the first instance choose a broad and comprehensive title. This omission in the title is fatal and renders the 1972 amendment unconstitutional.
Reversed.
KAVANAGH, C.J., and WILLIAMS, LEVIN, RYAN, and BLAIR MOODY, JR., J., concurred.
FITZGERALD, J. (dissenting).
The majority of the Court of Appeals panel below correctly disposed of this matter. We would deny leave to appeal.
The purpose here at issue of Const 1963, art 4, § 24 is to assure fair notice of a statute's purpose and effect. In Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973), this Court said:
"An act may include all matters germane to its object. It may include all those provisions which directly relate to, carry out and implement the principal object. As a review of the cases will show, the purpose of this constitutional limitation is to insure that both the legislators and the public have proper notice of legislative content and to prevent deceit and subterfuge."
In People v Milton, 393 Mich 234, 241; 224 NW2d 266 (1974), the Court said:
"When passing new legislation, the Legislature is free either to enact an entirely new and independent act or amend any act to which the subject of the new legislation is `germane, auxiliary or incidental'.
"Not infrequently there will be a number of existing acts to which the new legislation would be germane, auxiliary or incidental. The legislative choice will not be held invalid merely because an alternative location *197 for the new legislation might appear to some more appropriate." (Footnote omitted.)
The object of 1972 PA 105 was to prohibit possession by inmates of defined contraband. That object is not only germane to the general purpose of 1909 PA 17, which was to prohibit the trafficking of such contraband in prisons, but is absolutely necessary to that purpose.
COLEMAN, J., concurred with FITZGERALD, J.
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UNITED STATES, Appellee
v.
Shapour MEGHDADI, Private First Class
U.S. Army, Appellant
No. 04-0042
Crim. App. No. 20000029
United States Court of Appeals for the Armed Forces
Argued October 13, 2004
Decided February 11, 2005
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Jeremy W. Robinson (argued); Captain
Lonnie J. McAllister II, Captain Kathleen D. Schmidt, Lieutenant
Colonel Mark Tellitocci, and Major Sean S. Park (on brief);
Colonel Mark Cremin, Colonel Robert D. Teetsel, and Captain
Charlie A. Kuhfahl.
For Appellee: Captain Abraham F. Carpio (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, and Major
Natalie A. Kolb (on brief).
Military Judges: Nancy A. Higgins and Jeffrey D. Smith
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Meghdadi, No. 04-0042/AR
Judge CRAWFORD delivered the opinion of the Court.
Before a general court-martial on January 4-7, 2000, and
contrary to his pleas, Appellant was convicted of conspiring to
distribute cocaine, twice distributing cocaine, and using
cocaine, in violation of Articles 81 and 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 881 and 912a (2000). The
offenses all occurred at Fort Lewis, Washington, in July and
August 1999. On September 27, 2000, prior to authentication of
the record of trial, and prior to the convening authority’s
action, Appellant requested a post-trial session under Article
39(a), UCMJ, 10 U.S.C. § 839(a) (2000), seeking inquiry into
alleged witness misconduct, or, alternatively, a mistrial or a
new trial. Lieutenant Colonel (LTC) Smith heard the evidence at
the post-trial session and denied the motion. The military
judge who presided at trial (LTC Higgins) had been reassigned.
After this hearing, on May 3, 2001, the convening authority
approved the sentence of a bad-conduct discharge, three years’
confinement, total forfeitures, and reduction to the lowest
enlisted grade.
On October 17, 2002, Appellant filed a joint “Brief on
Behalf of Appellant and Petition for New Trial” with the Army
Court of Criminal Appeals. The joint brief was rejected on
procedural grounds and Appellant did not file a separate
petition for new trial until August 20, 2003. On September 23,
2
United States v. Meghdadi, No. 04-0042/AR
2003, the Court of Criminal Appeals affirmed the findings and
sentence and denied Appellant’s petition for new trial in a
short-form opinion. United States v. Meghdadi, ARMY 20000029
(A. Ct. Crim. App. Sept. 23, 2003). We granted review of the
first issue and specified issues two and three:
I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
WHEN IT DENIED APPELLANT’S REQUEST FOR A NEW
TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AND
FRAUD ON THE TRIAL COURT?
II. WHETHER APPELLANT’S FAILURE TO FILE THE PETITION
FOR NEW TRIAL WITHIN THE TWO-YEAR PERIOD
ESTABLISHED BY ARTICLE 73 DEPRIVED THE ARMY COURT
OF CRIMINAL APPEALS OF JURISDICTION TO CONSIDER
THE PETITION?
III. WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT’S MOTION FOR A POST-TRIAL ARTICLE 39(A)
SESSION TO CONSIDER WHETHER APPELLANT SHOULD BE
GRANTED A NEW TRIAL IN LIGHT OF CLAIMS OF NEWLY
DISCOVERED EVIDENCE AND FRAUD ON THE COURT?
For the reasons set forth below, we conclude that the
military judge erred in denying Appellant’s motion for a post-
trial session pursuant to Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2000), to consider whether a new trial should be
granted. Accordingly, we need not reach Issues I and II.
FACTS
Appellant’s convictions for conspiring to distribute
cocaine and twice distributing cocaine rested almost entirely on
the testimony of Investigator Pereira (Pereira) of the Fort
Lewis, Washington, Criminal Investigation Command (CID), and
3
United States v. Meghdadi, No. 04-0042/AR
Specialist Polanco (Polanco), an informant for the CID, who was
recruited by Pereira shortly after Pereira arrested Polanco for
drug offenses. At Appellant’s trial, Pereira testified that in
July 1999 he gave Polanco money to buy cocaine from Appellant.
After Appellant showed Polanco a baggie containing a white
powder, they went into a bathroom to avoid detection by casual
observers. Polanco emerged without the money and with a baggie
containing cocaine. Polanco corroborated Pereira’s testimony.
Additionally, Pereira was the only witness to the conspiracy and
the August 1999 off-post cocaine distribution at the home of
another soldier. Appellant’s fingerprints were not found on the
drug baggie allegedly purchased from him by Polanco, and the
drug baggie allegedly purchased by Pereira was not tested for
prints. In order for the members to have convicted Appellant of
the crimes with which he was charged, they must have believed
Polanco and, especially, Pereira. Pereira’s credibility was key
even when questioned by the members. The central theme of the
defense was that Pereira and Polanco had lied. Specifically,
the defense theory was that: (1) Pereira wanted to “make”
numerous drug cases in order to advance his career; (2) Pereira
had procured Polanco’s assistance by promising Polanco
assistance in his case, including that he would not go to jail
if he helped CID; and (3) Polanco had “set up” Appellant (and
others, by implication) so that CID agents would keep their
4
United States v. Meghdadi, No. 04-0042/AR
promises. The findings establish that the members did not find
the defense theory sufficiently compelling to dissuade them from
determining, beyond a reasonable doubt, that Appellant was
guilty.
About three months after Appellant’s trial, consistent with
his pleas made pursuant to a pretrial agreement, Polanco was
convicted of two specifications of wrongfully distributing
cocaine and one specification of wrongfully selling Prozac. He
was sentenced to a bad-conduct discharge, reduction to E-1, and
a fine of $500. His sentence did not include confinement. In
that case, Polanco’s defense counsel asked the military judge to
find that he had been granted immunity by the actions and
promises of Pereira and other CID operatives. During the
hearing on that motion, the defense introduced a surreptitiously
recorded audiotape of a conversation, purportedly occurring
between Polanco and Pereira, after Polanco had been terminated
as a CID confidential source. Only Polanco and his defense
counsel knew of the recording prior to Polanco’s trial.
After Appellant’s defense counsel had obtained a copy of
Polanco’s record of trial, he made a “Motion For Post-Trial
39(a) Session,” for the “purpose of examining an allegation of
misconduct by . . . Investigator (INV) Luis Pereira.” This
motion requested several remedies, including “a new trial, based
on newly discovered evidence and fraud on the court,” and
5
United States v. Meghdadi, No. 04-0042/AR
advanced a detailed factual exposition with supporting exhibits.
Appellant claimed that Pereira lied at Appellant’s trial by
testifying that: (1) he had not promised Polanco that Polanco
would not go to jail if he helped CID; (2) he had not told
Polanco that CID would assist him with his case if Polanco went
to work for CID; and (3) he had not met with Polanco after
Polanco had been terminated as a “registered source.” The
audiotape contains passages pertinent, in varying degrees, to
all three claims. Appellant contends that had the tape been
played at his trial, Pereira’s credibility would have been so
damaged that, when coupled with the inference that Polanco was
implicating as many people as possible in order to get CID’s
help in reducing his own charges, the results of Appellant’s
trial would have been different.
During Appellant’s trial, there was little evidence to
corroborate Pereira’s and Polanco’s testimony implicating
Appellant, and Pereira had made arguably evasive replies to
several questions on cross-examination. Further, Pereira had
admitted that he had not searched Polanco before the “controlled
buy” Polanco made from Appellant, arguably supporting
Appellant’s suggestion that Polanco may have brought the
“purchased” drugs with him. In acknowledging this failure,
Pereira explained that because both Polanco and Appellant were
present together when he arrived, such a search would have been
6
United States v. Meghdadi, No. 04-0042/AR
impracticable. Although others were allegedly present at the
second sale, only Pereira testified to the details of that
transaction, which also yielded the only evidence of the
conspiracy of which Appellant was convicted. Although Pereira
testified that he was wearing a “wire” during this second
transaction, no recording was made due to an equipment
malfunction. Pereira testified that Appellant understood the
important details of the conversation conducted in Spanish and
English, notwithstanding that Appellant is Iranian and,
according to the testimony of his sister and a coworker, speaks
no Spanish.
As noted, LTC Smith had not observed either Polanco or
Pereira testify at trial. After considering the written
submissions of the parties and reading a translated,
unauthenticated transcript of the audiotape, LTC Smith denied
the defense motion for a post-trial Article 39(a) session, for a
mistrial, for a new trial, and to set aside two of the findings
of guilty.
DISCUSSION
We agree with the Government’s assertion that “[m]ilitary
service courts use their fact-finding powers to examine and
contrast the testimony at trial with other post-trial
submissions on motions for new trial.” Appellee’s Final Brief
at 9 (citing United States v. Brooks, 49 M.J. 64, 68 (C.A.A.F.
7
United States v. Meghdadi, No. 04-0042/AR
1998); United States v. Bacon, 12 M.J. 489, 492 (C.M.A. 1982)).
Because the Court of Criminal Appeals elected summary
affirmation, we lack the benefit of that court’s fact-finding
and rationale as to whether the military judge properly denied
Appellant’s request for a post-trial Article 39(a) session.
Within the constraints of Article 67, UCMJ, 10 U.S.C. § 867
(2000), and consistent with our precedent, United States v.
Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996), we will pierce the
intermediate level of appellate review and examine the military
judge’s ruling directly.
Rule for Courts-Martial (R.C.M.) 905(h) addresses written
motions in general and provides, in part: “[u]pon request,
either party is entitled to an Article 39(a) session to present
oral argument or have an evidentiary hearing concerning the
disposition of written motions.” R.C.M. 1102(b)(2) and (d),
specifically addressing post-trial Article 39(a) sessions,
contain no similar language.
In United States v. Scaff, 29 M.J. 60 (C.M.A. 1989), we
removed any substantive distinction between a military judge’s
authority to consider post-trial issues under R.C.M. 1102(b)(2)
and R.C.M. 1210(f):
If evidence is discovered after trial which would
constitute grounds for a new trial under RCM 1210(f),
this might be considered a "matter which arises after
trial and which substantially affects the legal
sufficiency of any findings of guilty or the sentence"
8
United States v. Meghdadi, No. 04-0042/AR
within the meaning of RCM 1102(b)(2). However, even if
the drafters of the Manual did not intend such an
interpretation of this Rule, we still are persuaded
that Article 39(a) of the Code empowers the military
judge to convene a post-trial session to consider
newly discovered evidence and to take whatever
remedial action is appropriate.
29 M.J. at 65-66 (footnote omitted).
We have long recognized that petitions for a new trial “are
generally disfavored,” United States v. Williams, 37 M.J. 352,
356 (C.M.A. 1993), and that “granting a petition for a new trial
in the military rests ‘within the [sound] discretion of the
authority considering . . . [that] petition.’” United States v.
Bacon, 12 M.J. 489, 492 (C.M.A. 1982) (quoting United States v.
Lebron, 46 C.M.R. 1062, 1066 (A.F.C.M.R. 1973)). “This Court
has opined that requests for a new trial, and thus rehearings
and reopenings of trial proceedings, are generally disfavored.
Relief is granted only if a manifest injustice would result
absent a new trial, rehearing, or reopening based on proffered
newly discovered evidence.” Williams, 37 M.J. at 356.
Although we have not directly addressed the standard to be
applied in examining a military judge’s denial of a request for
a post-trial Article 39(a) session, we have held that “[w]hen an
appellant requests the convening authority to order a post-trial
Article 39(a) session, it is a matter for the convening
authority's sound discretion whether to grant the request,”
United States v. Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998), and
9
United States v. Meghdadi, No. 04-0042/AR
that “[w]e review a military judge’s ruling on a petition for a
new trial for abuse of that discretion.” United States v.
Humphreys, 57 M.J. 83, 96 (C.A.A.F. 2002).
In denying a petition for a new trial, a military judge
abuses his discretion “if the findings of fact upon which he
predicates his ruling are not supported by evidence of record;
if incorrect legal principles were used by him in deciding this
motion; or if his application of the correct legal principles to
the facts of a particular case is clearly unreasonable.” United
States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993). While this
standard is not facially applicable to the military judge’s
denial of Appellant’s request for an Article 39(a) session, the
fact that the request was made in the context of a motion for
new trial compels our consideration of this analytical framework
in assessing the military judge’s factual and legal conclusions.
In denying Appellant’s motion, the military judge
misapprehended the purpose of the Article 39(a) session, made
factual findings that are not supported by the record, applied
an erroneous legal standard, misperceived the evidentiary value
of the audiotape, and made no record of any weighing of the new
evidence against the evidence at trial, either on the merits or
in sentencing. Further, on an issue related entirely to witness
credibility, the military judge declined the opportunity
personally to hear the testimony of witnesses and, in the
10
United States v. Meghdadi, No. 04-0042/AR
process, denied counsel the opportunity to develop that
testimony in an adversarial forum. Viewing these circumstances
in the aggregate, we conclude that the military judge’s reasons
and ruling were clearly untenable and that they constitute a
prejudicial abuse of discretion.
A. Purpose of the Requested Post-Trial Session Under
Article 39(a), UCMJ
After making factual findings, the military judge denied
the relief requested by Appellant:
A post-trial Article 39(a) session to examine
defense counsel’s allegations of misconduct by INV
Periera is not warranted. Other mechanisms, such as a
commander’s inquiry pursuant to R.C.M. 303 or an [Army
Regulation] 15-6 investigation, are the proper means
of conducting any such inquiry.
Despite Appellant’s citation to R.C.M. 1102 and 1210 in his
motion, the military judge failed to recognize that the primary
purpose of the requested inquiry into witness misconduct was to
examine Appellant’s request for a mistrial or new trial, rather
than to establish a basis for correction or discipline of the
witnesses themselves. This failure was compounded by his
erroneous view of both the facts and the rules of evidence.
B. The Military Judge’s Findings
Appellant disagrees with three aspects of the military
judge’s ruling: his conclusion that the defense could have
discovered the tape through due diligence; his conclusion that
the voice attributed to Pereira on Polanco’s tape did not tell
11
United States v. Meghdadi, No. 04-0042/AR
Polanco that Polanco’s work for CID would help Polanco’s case;
and his conclusion that the remarks of Pereira on the tape could
not be construed as an admission that Pereira had promised
Polanco that he would not go to jail if he helped CID. For the
reasons discussed below, we agree with Appellant.
First, the evidence does not support the military judge’s
finding that Appellant’s defense counsel did not exercise due
diligence in ascertaining the existence of the audiotape. The
tape was made covertly by Polanco and delivered to Polanco’s
defense counsel, who secreted the tape until Polanco’s trial so
as to provide maximum effectiveness in impeaching Pereira during
those proceedings. At Polanco’s trial, Government counsel were
surprised by the existence of the tape. As noted in the defense
request for reconsideration, the issue of diligence was not even
contested by the Government in its opposition to Appellant’s
post-trial motion. In view of the military judge’s lack of
familiarity with the witnesses, his declination to observe their
demeanor, and the Government’s apparent concession of the issue,
there is little but conjecture to support the military judge’s
finding that “merely asking Polanco if he had any corroborating
evidence concerning his allegations against Periera would have
led to the discovery of the audiotape prior to Meghdadi’s court-
martial.”
12
United States v. Meghdadi, No. 04-0042/AR
Second, the voice attributed to Pereira in the transcript
of the audiotape says to Polanco: “You contributed for the CID
to get so many drug dealers on the installation. If everybody
see whatever you have done good before the incident, all this
will help you.” Nonetheless, the military judge found that
“[n]owhere . . . does Pereira promise Polanco . . . that helping
CID will help Polanco’s case.” This finding appears
hypertechnical. The question is not whether the military judge
believed a promise had been made, but whether a rational trier
of fact could have found the newly discovered evidence of such a
promise “sufficiently believable to make a more favorable result
probable.” Brooks, 49 M.J. at 69. Regardless of whether the
military judge did more than merely rely on the absence of the
word “promise” from Pereira’s statement, he erred by concluding
that a rational trier of fact, after hearing this evidence
tested in an adversarial setting, could not have found that such
a promise had been made.
As to whether Pereira had promised Polanco that Polanco
would not go to jail, the military judge again applied an
incomplete, if not incorrect, standard. Finding that the
audiotape did not expressly contain such a promise, the military
judge failed to consider whether, together with Polanco’s
testimony, Pereira’s in-court denials, and other potential
inconsistencies by Pereira, the audiotape (a portion of the
13
United States v. Meghdadi, No. 04-0042/AR
transcript of which is quoted below) could convince a rational
trier of fact that such a promise had indeed been made:
POLANCO: I’m going to do everything right, and my
woman is going to do everything okay. I don’t
want my mother to die.
PEREIRA: The truth is, I’m going to back up off my
word.
[Tape inaudible]
PEREIRA: You contributed for the CID to get so many
drug dealers on the installation. If everybody
see whatever you have done good before the
incident, all this will help you.
POLANCO: I hope so. You always told me that I would
not go to jail.
PEREIRA: Like I told the woman, you can say whatever
you want, but you’re not going to f*** with me.
If you come and say all those things, who do you
think they’re going to believe, you or me? You
mentioned about your mother, and I’m worried
because I have my mother also, and I don’t want
anything to happen, but everything is going to
get fine.
POLANCO: If none of you go and testify on my behalf,
even the General is going to find out about me.
I am begging you for my mother.
PEREIRA: I will do the impossible to show or talk on
your behalf based upon whatever you have done for
me.
Although not binding, the ruling of LTC Higgins, the
military judge in the courts-martial of both Polanco and
Appellant, who twice heard Polanco and Pereira testify and heard
the inflection and tone of voice used on the tape itself (noting
that the tape used a combination of Spanish and English), is
14
United States v. Meghdadi, No. 04-0042/AR
informative. LTC Smith summarized LTC Higgins’s denial of
Polanco’s motion for a finding of immunity by saying “[t]he
military judge did not find that INV Pereira and other CID
agents promised Polanco he would not go to jail.” However, what
LTC Higgins actually said, in referring to Pereira and other CID
Drug Suppression Team members, was:
[t]hey made promises and secured the cooperation of a
registered source who performed on his end of the
bargain and they immediately began back pedaling when
they realized that the assures [sic] they had given
might be beyond their ability to comply with. They
further minimized their involvement in making these
assurances in their testimony before the court, and
that is to put it charitably.
While LTC Higgins’s determination of credibility is not
dispositive, it certainly serves to underscore the necessity for
a meaningful fact-finding inquiry and a detailed application of
correct legal standards.
C. Evidentiary Value of the Audiotape
The military judge erroneously concluded that the audiotape
would not be admissible. The military judge assumed that the
taped conversation would be offered only under Military Rule of
Evidence (M.R.E.) 608(b) and would be inadmissible as “extrinsic
evidence.” This conclusion inexplicably excludes both M.R.E.
608(c) and 613, neither of which requires the prior statement to
have been probative of truthfulness and neither of which
15
United States v. Meghdadi, No. 04-0042/AR
prohibits introduction of qualifying extrinsic evidence under
these facts.
M.R.E. 608(c) permits introduction of evidence, extrinsic
or otherwise, tending to establish bias, prejudice, or motive to
misrepresent on the part of a witness:
Bias, prejudice, or any motive to misrepresent may be
shown to impeach the witness either by examination of
the witness or by evidence otherwise adduced.
The tape recording, taken together with other evidence in this
case, is relevant to a fact-finder’s determination of whether
Pereira and Polanco had motives to misrepresent: Pereira, for
professional gain and to prevent discovery of his arguably
unauthorized investigational techniques; and Polanco, to stay
out of jail and secure CID’s help with his case.
As to M.R.E. 613(b), the military judge concluded that
“defense counsel would have been stuck with the answers INV
Periera provided at Meghdadi’s court-martial, the very situation
that actually occurred.” This conclusion would be correct if
Pereira and Polanco admitted making their prior statements. If
they denied making the statements, or equivocated, M.R.E. 613
permits the extrinsic evidence of these statements. See, e.g.,
United States v. Ureta, 44 M.J. 290, 298 (C.A.A.F. 1996);
United States v. Button, 34 M.J. 139, 140 (C.M.A. 1992). We
hold that Appellant has firmly established the potential
16
United States v. Meghdadi, No. 04-0042/AR
impeachment value of the newly discovered statements and that
their value was not considered by the military judge.
D. Consideration of R.C.M. 1210(f)(3)
The military judge’s ruling fails adequately to address
Appellant’s claim that the fraud on the court allegedly
perpetrated by Pereira “had a substantial contributing effect on
. . . the sentence adjudged.” R.C.M. 1210(f)(3). By denying a
post-trial session at which Pereira could be confronted with
evidence of the audiotape by Appellant’s counsel, and by instead
relying on a translated, unauthenticated transcript, the
military judge denied himself the opportunity for meaningful
assessment of whether Peirera’s trial testimony comprised
perjury and, if so, whether the effect of the perjury
substantially contributed to the sentence. See United States v.
Hester, 26 M.J. 299, 299 (C.M.A. 1988)(“[W]e conclude that
perjured testimony from the two witnesses . . . . constituted a
fraud on the court . . . .”); United States v. Bourchier, 5
C.M.A. 15, 17 C.M.R. 15 (1954)(accused did not establish “proved
perjury”). This failure is particularly salient in view of
Appellant’s complaint that he was sentenced far more harshly
than Polanco; the fact that Pereira’s credibility was questioned
during his testimony for the Government, the defense, and the
court; and the fact that Pereira was the Government’s only
sentencing witness. Under such circumstances, evidence adverse
17
United States v. Meghdadi, No. 04-0042/AR
to Pereira’s credibility deserved to be weighed against the
evidence at trial before the military judge concluded, sub
silentio, that the “fraud” did not have “a substantial
contributing effect on . . . the sentence adjudged.”
CONCLUSION
Called upon to examine a close question of credibility and
presented with an audiotaped conversation, largely in Spanish,
filled with innuendo, implication, and conversational nuance, a
military judge who had not presided at either trial declined
even to hear the witnesses testify, much less allow counsel to
develop that testimony.
The military judge would have done well to follow the
guidance of the military judge in Scaff, who noted:
The purpose of my granting [the] request for a
post-trial 39(a) session was to prevent a possible
miscarriage of justice by providing for the securing
of apparently extremely significant evidence at the
earliest possible time. This session, I felt, would
not only preserve the evidence, while still relatively
fresh in the witness’ memory, compared with the state
of her memory at some future . . . hearing [pursuant
to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 41
(1967),] ordered by an Appellate Court, but would, in
all likelihood, result in less cost to the Government.
29 M.J. at 62 (citation omitted).
We express no opinion on the question of whether Appellant
is entitled to a new trial; however, we are satisfied that,
given the evidentiary posture in which the request was
presented, the failure to afford Appellant a forum in which to
18
United States v. Meghdadi, No. 04-0042/AR
make his case was error that materially prejudiced Appellant’s
substantial trial rights.
The decision of the Army Court of Criminal Appeals is
reversed and the record of trial is returned to The Judge
Advocate General for action not inconsistent with this opinion,
to include a post-trial Article 39(a) session to consider
Appellant’s request for a new trial.
19
| {
"pile_set_name": "FreeLaw"
} |
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
J.P. MORGAN SECURITIES, LLC, MADHUKAR NAMBURI
and ESTEBAN SCHRECK,
Appellants,
v. Case No. 5D15-4272
GEVERAN INVESTMENTS LIMITED, LIGHTING SCIENCE
GROUP CORPORATION, PEGASUS CAPITAL ADVISORS, L.P.,
PEGASUS CAPITAL, LLC, PEGASUS CAPITAL ADVISORS GP,
LLC, PCA LSG HOLDINGS, LLC, et al.,
Appellees.
________________________________/
Opinion filed August 4, 2017
Appeal from the Circuit Court for
Orange County,
Alice Blackwell, Judge.
Mayanne Downs and Rachael M. Crews, of Gray
Robinson, P.A., Orlando, and Adam Balin, James I.
McClammy, Amelia T.R. Starr and Christopher
Ratcliffe Le Coney, of Davis Polk & Wardwell, LLP,
New York, NY, for Appellants, J.P. Morgan, et al. 1
Thomas A. Zehnder and David B. King, of King,
Blackwell, Zehnder & Wermuth, P.A., Orlando,
and Bruce S. Rogow and Tara A. Campion,
1 Cases 5D15-4272 and 5D15-4273, traveling together on appeal, were
consolidated for oral argument and for purposes of this opinion. In case 5D15-4272, J.P.
Morgan, et al., appeal from the denial of a motion to dismiss as well as summary final
judgment in favor of Geveran Investments Limited. In case 5D15-4273, Lighting Science
Group Corp., et al., also appeal from the summary final judgment entered in Geveran’s
favor. Because J.P. Morgan initiated the appeal in case 5D15-4272 and did not join in the
appeal in case 5D15-4273, J.P. Morgan is an Appellant in case 5D15-4272 and an
Appellee in case 5D15-4273 pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).
of Bruce S. Rogow, PA, Fort Lauderdale,
for Appellee, Geveran Investments Limited.
Barry Richard of Greenberg Traurig, P.A.,
Tallahassee, Alan T. Dimond, David A. Coulson
and Ian M. Ross, of Greenberg Traurig, P.A., Miami,
for Appellee, Lighting Science Group Corporation. 2
Daniel S. Newman, P.A., of Broad and Cassel,
Miami, Counsel for Amicus Curiae The Florida
Securities Dealers Association, Inc.
Nicholas A. Shannin, of The Shannin Law Firm,
Orlando, and Jonathan K. Youngwood, Kavitha
S. Sivashanker and Stephen A. O’Connor, of
Simpson Thacher & Bartlett LLP, New York, NY,
Attorneys for Amicus Curiae Securities Industry
and Financial Markets Association.
No Appearance for other Appellees.
And
LIGHTING SCIENCE GROUP CORP., RICHARD WEINBERG,
GREGORY KAISER AND PEGASUS CAPITAL ADVISORS, L.P.
Appellants,
v. Case No. 5D15-4273
GEVERAN INVESTMENTS LIMITED, J.P. MORGAN
SECURITIES, LLC, PEGASUS CAPITAL ADVISORS, L.P.,
PEGASUS CAPITAL, LLC, PEGASUS CAPITAL
ADVISORS, GP, LLC, PCA LSG HOLDINGS, LLC, et al.,
Appellees.
________________________________/
Opinion filed August 4, 2017
2 Likewise, because Lighting Science Group Corp., Pegasus Capital Advisors,
Richard Weinberg, and Gregory Kaiser did not join J.P. Morgan, et al., in case 5D15-
4272, and instead appealed the summary final judgment in case 5D15-4273, these
parties are Appellants for purposes of case 5D15-4273 and Appellees for purposes of
case 5D15-4272, pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).
2
LSG is a Delaware corporation with executive offices in Satellite Beach, Florida,
and is controlled by Pegasus Capital Advisors, L.P., a U.S.-based private equity fund.
LSG originally focused on selling high-end, made-to-order lighting, but in 2010, LSG
shifted its business model to designing, manufacturing, and marketing light-emitting diode
(“LED”) light products, including replacement bulbs and fixtures, for retail and commercial
customers. 5 Geveran is an international investment company, one of several companies
within the Fredriksen Group, organized under the laws of Cyprus. Geveran employed
Fredrick Halvorsen, a Norwegian businessman and investor, to identify investment
opportunities on its behalf. 6
Halvorsen anticipated a “massive shift towards LED lighting” and sought out
investment opportunities within the green-energy industry for Geveran. Halvorsen
specifically sought “pre-IPO” investments—companies that were not publicly traded on
major stock exchanges but that were planning on becoming publicly traded in the near
future. 7
5Because we are reviewing an order granting summary judgment, we present the
facts in the light most favorable to the nonmoving party, the defendants, and draw all
reasonable inferences in the nonmoving party’s favor. See Martins v. PNC Bank, Nat’l
Ass’n, 170 So. 3d 932, 935 (Fla. 5th DCA 2015).
6
Halvorsen had previously been the CEO and CFO of a Norwegian technology
company valued in the billions.
7Technically, LSG was a “re-IPO” in that it already offered a small volume of
shares to the public on the “over-the-counter” (“OTC”) market. LSG’s S-1/A noted that the
value of these shares had been low and trading of them thin because Pegasus controls
LSG and minority shareholders would have little control over LSG. Given how thinly
traded LSG’s stock is, we have placed no significance on the fluctuations of the stock’s
price over the course of the events giving rise to this dispute.
5
Lighting Science Group Corp., et al. 3 (“LSG”) and J.P. Morgan Securities, LLC,
Madhukar Namburi, and Esteban Schreck4 (“J.P. Morgan”) (collectively, “defendants”)
appeal the trial court’s entry of summary final judgment in favor of Geveran Investments
Limited (“Geveran”). The parties stipulated to final judgment and the dismissal of their
additional claims and affirmative defenses for the purposes of appealing the trial court’s
entry of partial summary judgment on Geveran’s claim under the Florida Securities and
Investor Protection Act (“FSIPA”), sections 517.011–32, Florida Statutes (2012). The final
judgment awarded Geveran $25 million in rescissory damages under section
517.221(3)(a), Florida Statutes (2012), along with $6,752,280 in prejudgment interest;
$4,456,787.40 in attorneys’ fees; and $469,061.93 in costs: a total recovery of
$36,678,129.33, for which the defendants are jointly and severally liable.
The defendants argue that the trial court erred in entering summary judgment in
Geveran’s favor because genuine issues of material fact exist as to Geveran’s entitlement
to relief. We agree and reverse and remand this case for further proceedings. We also
find that the court erred in denying J.P. Morgan’s motion to dismiss Geveran’s claims
against Namburi and Schreck because the complaint failed to allege facts sufficient to
establish that they acted as agents of the seller, LSG. Therefore, on remand the trial court
is directed to dismiss LSG’s claims against Namburi and Schreck.
3 The other Appellants in case 5D15-4273 are Pegasus Capital Advisors, LP,
which owns a controlling stake in LSG, Richard Weinberg, LSG’s CEO and a senior
partner at Pegasus, and Gregory Kaiser, LSG’s CFO.
4
Namburi and Schreck are employees of J.P. Morgan’s investment banking group.
Namburi is the executive director of the group, and Schreck is the vice president. Both
Namburi and Schreck were involved in assisting LSG in soliciting Geveran’s investment.
4
LSG is a Delaware corporation with executive offices in Satellite Beach, Florida,
and is controlled by Pegasus Capital Advisors, L.P., a U.S.-based private equity fund.
LSG originally focused on selling high-end, made-to-order lighting, but in 2010, LSG
shifted its business model to designing, manufacturing, and marketing light-emitting diode
(“LED”) light products, including replacement bulbs and fixtures, for retail and commercial
customers. 5 Geveran is an international investment company, one of several companies
within the Fredriksen Group, organized under the laws of Cyprus. Geveran employed
Fredrick Halvorsen, a Norwegian businessman and investor, to identify investment
opportunities on its behalf. 6
Halvorsen anticipated a “massive shift towards LED lighting” and sought out
investment opportunities within the green-energy industry for Geveran. Halvorsen
specifically sought “pre-IPO” investments—companies that were not publicly traded on
major stock exchanges but that were planning on becoming publicly traded in the near
future. 7
5Because we are reviewing an order granting summary judgment, we present the
facts in the light most favorable to the nonmoving party, the defendants, and draw all
reasonable inferences in the nonmoving party’s favor. See Martins v. PNC Bank, Nat’l
Ass’n, 170 So. 3d 932, 935 (Fla. 5th DCA 2015).
6
Halvorsen had previously been the CEO and CFO of a Norwegian technology
company valued in the billions.
7Technically, LSG was a “re-IPO” in that it already offered a small volume of
shares to the public on the “over-the-counter” (“OTC”) market. LSG’s S-1/A noted that the
value of these shares had been low and trading of them thin because Pegasus controls
LSG and minority shareholders would have little control over LSG. Given how thinly
traded LSG’s stock is, we have placed no significance on the fluctuations of the stock’s
price over the course of the events giving rise to this dispute.
5
Prior to Geveran’s investment, J.P. Morgan agreed to work as a placement agent
and underwriter for LSG. Under the terms of the agreement, J.P. Morgan agreed to “assist
the Company [LSG] in soliciting and receiving an offer from the Purchasers to purchase
Securities.”8 At Halvorsen’s request, J.P. Morgan communicated Geveran’s interest in
investing in LSG.
Halvorsen met with representatives of LSG, including LSG’s director Richard
Weinberg and CFO Gregory Kaiser, along with representatives from J.P. Morgan,
including Namburi and Schreck, and representatives of Pegasus in Florida on April 4,
2011, to discuss a possible investment. Halvorsen sat through multiple presentations,
including presentations by Weinberg and Namburi, about LSG’s finances. Halvorsen also
heard a presentation about LSG’s initiatives to improve its gross profit margin. 9 Halvorsen
reviewed various financial projections and LSG’s 2010 form 10-K, 10 which was filed with
the SEC on April 1, 2011.
8 The agreement entitled J.P. Morgan to rely on LSG’s company information
without independent verification and provided for indemnification by LSG for any liability.
The agreement also specified that LSG’s past financial data were prepared in accordance
with generally accepted accounting principles (“GAAP”).
9 An expert for Geveran explained that gross profit is determined by subtracting
the cost of goods sold—all of the direct costs associated with producing the products—
from total revenue. When gross profits are divided by revenue and multiplied by 100%,
the resulting percentage, referred to as “gross margin,” provides an estimate of the profits
on each unit sold. Companies with high gross margins will become even more profitable
as revenues grow while companies with low gross margins will continue to generate low
profits even as their business expands.
10The form 10-K is an annual report that provides a “comprehensive overview of
the company’s business and financial condition and includes audited financial
statements.” SEC, Form 10-K, (June 26, 2009),
https://www.sec.gov/answers/form10k.htm.
6
Halvorsen prepared his own analysis of LSG in an email dated April 28, 2011. He
noted that LSG had a planned IPO within the next twelve months and was on pace to
begin earning money in July and to have positive cash flow by December. He also noted
a general shift toward LED lighting and LSG’s recent distribution agreement with Home
Depot, which would expand LSG’s retail sales. He noted, however, that the investment
was contingent on LSG shifting its manufacturing base from the United States to Mexico
and that the IPO required LSG to continue to improve its earnings.
Geveran relied on Halvorsen’s expertise and presentations from LSG and J.P.
Morgan for its due diligence review. Geveran ultimately agreed to purchase 6,250,000
shares of LSG at $4 per share: a total investment of $25 million. The agreement certified
that the 2010 form 10-K provided to Halvorsen complied with all relevant laws and that
the financial statements included therein complied with generally accepted accounting
principles (“GAAP”). Halvorsen signed the subscription agreement with LSG on behalf of
Geveran on May 10, 2011. 11
Prior to signing the agreement, LSG had filed a form S-1/A with the SEC in
anticipation of making a re-IPO in the summer of 2011. In response, the SEC sent LSG
a fax on April 28, 2011, raising several concerns with LSG’s S-1/A, including concerns
with note five of its financial statements regarding inventories. In note five, LSG explained
that because it was in an early stage of development, it classified its obsolete, unsold
inventory as “research and development” rather than a cost of manufacturing—a “cost of
11 The agreement was a “Regulation S” offering, meaning that the securities
offered did not have to be registered under section 5 of the Securities Act of 1933 because
they were offered outside of the United States. See Lighting Sci. Grp. Corp., Current
Report (Form 8-K) (May 10, 2011) (announcing Regulation S subscription agreement).
7
goods sold.” The SEC’s letter noted the SEC’s view, expressed in ASC section 420-10-
S99-3, that these costs should be included in cost of goods sold. 12 A copy of the SEC’s
letter was emailed to Namburi and Schreck, among many others, moments after it was
received. Halvorsen, however, was not provided the letter. 13 On May 3, the SEC sent a
similar letter to LSG, this time taking issue with LSG’s 2010 form 10-K—the same form
10-K referenced in the subscription agreement signed a week later and provided to
Halvorsen. The second letter raised the same concerns as the previous letter, and
Namburi and Schreck were again sent a copy of the letter soon after it was received.
The day before the subscription agreement was signed, Namburi forwarded
Halvorsen an email that he had received from Kaiser containing information about LSG’s
April sales. Namburi had deleted the section of the email showing disappointing gross
margins for LSG. Namburi later claimed that he deleted the numbers because he was
unsure of their accuracy. In a separate email, Namburi expressed frustration to Kaiser
that the April gross margins were around 3–6% when they had informed Halvorsen the
margins would be around 9%.
12 Accounting Standard Codification, § 420-10-S99-3, available at
https://asc.fasb.org/section&trid=2558983#d3e141019-122747 (login required).
13 Namburi testified that he was “pretty confident” he had a conversation with
Halvorsen about the SEC comments and LSG’s compliance with GAAP, although he did
not know the date. He also noted that the SEC’s approval was key to the timing of LSG’s
re-IPO, which was an important milestone for the company, although he declined to offer
an opinion about the materiality of the restatement.
Namburi also sent an email days before the subscription agreement was signed
that referenced the SEC comment letters and stated that the comments would need to be
disclosed to “our investors” even though the restatement was not material. The email was
part of a chain related to soliciting additional investors for LSG, not including Geveran.
8
short-hand for a direct sale of securities distinct from general corporate malfeasance. See
In re Sahlen & Assocs., Inc. Sec. Litig., 773 F. Supp. 342, 372 (S.D. Fla. 1991)
(disapproving of a reading of Rousseff in the “strict sense” based on the plain language
of the statute); see also Michael A. Hanzman, Civil Remedies Under the Fla. Secs. &
Investor Protection Act, 64 Fla. Bar J. 36 (Oct. 1990) (approving of Rousseff in general
but noting that the privity requirement, in a strict contractual sense, cannot be correct). In
this context, section 517.211 is transaction-specific, while other provisions of Florida
statutory and common law reach other types of wrong-doing by corporate officers.
To summarize, Pegasus’s pecuniary interest in Geveran’s investment and the
evidence of its participation in soliciting the investment creates a genuine issue of fact as
to Pegasus’s liability as a seller under the FSIPA, making the denial of Pegasus’s motion
for summary judgment appropriate. Yet, as with LSG and J.P. Morgan, genuine issues of
material fact preclude summary judgment in Geveran’s favor on its FSIPA claim.
As to Namburi and Schreck, Geveran’s second amended complaint alleged that
Namburi and Schreck were liable under section 517.301 for soliciting Geveran’s
investment and as agents of the seller, LSG. While Geveran’s complaint alleges that
Namburi and Schreck “solicited the sale of LSG stock,” it does not allege that Namburi
and Schreck had a personal interest in the transaction—only that J.P. Morgan would
receive an agency fee. There is also no allegation that Namburi and Schreck acted to
are not restricted. . . . The Florida statutes, on the other hand, are far more
restrictive. . . . Section 517.211 says that if a seller (or buyer) is untruthful in a sale, the
buyer (or seller) can rescind the transaction and get his money back. This provision
applies to a far more narrow group of activities than does rule 10b-5. Buyer/seller privity
is required.”).
20
serve the interests of LSG, given that they were actually employees of J.P. Morgan. Thus,
Geveran has not alleged facts sufficient to state a claim on the basis that Schreck and
Namburi are liable as “sellers.”
As noted above, section 517.211(2), Florida Statutes (2012), also extends liability
to “every director, officer, partner, or agent of or for the purchaser or seller, if the director,
officer, partner, or agent has personally participated or aided in making the sale or
purchase.” It is undisputed that Namburi and Schreck were not directors, officers, or
partners of LSG, so if they are liable under this category, it must be as agents of LSG.
The Fourth District Court of Appeal has held that under section 517.211, the term “agent”
is given its common meaning—“representation of a principal.” Rubin v. Gabay, 979 So.
2d 988, 990 (Fla. 4th DCA 2008). Agency can either be actual or apparent. Id. The
elements of actual agency are: 1) acknowledgment by the principal of the agent; 2) the
agent’s acceptance; and 3) control of the agent by the principal. Id.
While Namburi signed the agency agreement with LSG, he did so as an employee
of J.P. Morgan and not in his personal capacity. Schreck did not sign the agreement and
had a narrower role in the transaction. The second amended complaint specifically
alleges that J.P. Morgan had a contractual relationship with LSG to act as its agent in
soliciting the investment and attached the agreement to the complaint. The complaint
does not allege or demonstrate that either Namburi or Schreck accepted an agency
agreement with LSG or that LSG exercised control over them. Therefore, Geveran failed
to state a cause of action against Namburi and Schreck based on an actual agency
theory.
21
partial summary judgment on Geveran’s claim for violations of the FSIPA. The parties
stipulated to dismissing their additional claims and to the entry of final judgment for the
purposes of this appeal.
This Court reviews orders on motions for summary judgment de novo. Volusia Cty.
v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary judgment
must be granted where the summary-judgment evidence shows the absence of any
“genuine issue as to any material fact” and an entitlement to judgment as a matter of law.
Fla. R. Civ. P. 1.510(c). The moving party has the burden of establishing the absence of
any genuine issue of material fact, and all reasonable inferences are drawn in favor of the
nonmoving party. Martins, 170 So. 3d at 935.
The FSIPA makes it unlawful to, “in connection with the offer, sale, or purchase of
any investment or security, . . . 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, . . . not misleading.” § 517.301, Fla. Stat. (2012). The FSIPA
provides for a remedy of rescission for all violations of section 517.301 “if the plaintiff still
owns the security.” Id. § 517.211. Joint and several liability under section 517.301 extends
to any “director, officer, partner, or agent [of the seller who] has personally participated or
aided in making the sale or purchase.” Id.
In E.F. Hutton & Co. v. Rousseff, 537 So. 2d 978, 979 (Fla. 1989), the Florida
Supreme Court analogized claims under section 517.211(3) seeking rescission to claims
under section 12 of the Securities Act of 1933, which is codified at 15 U.S.C. § 77(l)
(2016), as well as common law claims for rescission. Section 517.211(2) limits liability to
persons involved directly in the sale of the security and damages are limited to the
11
consideration paid. 537 So. 2d at 981. A claim for rescission under section 517.211
includes: 1) a misrepresentation or omission, 2) of a material fact, 3) on which the buyer
relied. 17 See Kashner Davidson Sec. Corp. v. Desrosiers, 689 So. 2d 1106, 1107 (Fla. 2d
DCA 1997) (citing Rousseff, 537 So. 2d at 981).
The defendants argue that there are genuine issues of material fact as to all three
elements of Geveran’s claim. We focus on the second and third elements—materiality
and reliance—and find there are genuine issues as to both. 18 Although few Florida courts
have addressed the issue, the majority of federal courts interpreting section 517.301 have
adopted the test for materiality developed by the United States Supreme Court for rule
10b-5 claims. 19 See, e.g., Grippo v. Perazzo, 357 F.3d 1218, 1222 (11th Cir. 2004) (noting
the elements of a section 517.301 claim are similar to those under Federal Rule 10b-5
with some exceptions). Under rule 10b-5, a material fact is a fact that would be important
to a reasonable investor in deciding whether to invest—meaning that there is a
17 At oral argument, counsel for Geveran conceded that reliance is an element of
a claim under section 517.211. We note that one federal court has found that reliance is
not an element under that section. Waters v. Int’l Precious Metals Corp., 172 F.R.D. 479,
492–96 (S.D. Fla. 1996). Geveran has also not argued here or below that reliance should
be presumed given that its claim is based on an omission. Cf. Affiliated Ute Citizens of
Utah v. United States, 406 U.S. 128, 152 (1972) (concluding that court erred in requiring
reliance in case involving omission of material information under rule 10b-5).
18 As to the first element, misrepresentation or omission, LSG’s failure to disclose
the SEC letters to Halvorsen was a clear omission. We note, however, that note five of
LSG’s 2010 form 10-K disclosed LSG’s decision to treat obsolete inventory as a cost of
goods sold. While we doubt that this disclosure, standing on its own, would be sufficient—
Geveran has no obligation to consult an accountant to review the entire form 10-K—it is
worth noting that the information was disclosed, albeit not in a form easily accessible to
investors. In addition, Namburi testified that he actually disclosed the SEC comment
letters to Halvorsen. While that testimony is of questionable reliability given its lack of
specificity, assessing the credibility of a witness is generally a matter for the jury.
19 17 C.F.R. § 240.10b-5 (2016) (implementing 15 U.S.C. § 78j (2016)).
12
“substantial likelihood” the reasonable investor would have viewed the misrepresentation
as altering the “total mix” of available information. Basic Inc. v. Levinson, 485 U.S. 224,
231–32 (1988) (adopting materiality standard from TSC Indus., Inc. v. Northway, Inc., 426
U.S. 438, 449 (1976)); cf. Restatement (Second) of Torts § 538 (“The matter is material
if [] a reasonable man would attach importance to its existence or nonexistence in
determining his choice of action in the transaction in question . . . .”); SEC Staff
Accounting Bulletin: No. 99, 64 Fed. Reg. at 45151 (noting that the accounting standard
for materiality is “in substance identical to the formulation used by the courts in interpreting
the federal securities laws”).
Geveran recognizes the inherent factual issues in determining whether the 2008
and 2009 restatements of gross margins were themselves material. Geveran focuses
instead on the concealment of the SEC comment letters and LSG’s failure to maintain
GAAP compliant financial records as the material omissions and misrepresentations to
support the order granting summary judgment. The subscription agreement between the
parties included detailed assurances that LSG’s 2010 form 10-K complied with GAAP and
all relevant SEC rules. Halvorsen’s deposition testimony repeatedly emphasized the
importance of GAAP compliance to Geveran not only because GAAP compliance allows
for an objective evaluation of the financial strength of a particular investment, but also
because GAAP compliance was necessary to obtain SEC approval of LSG’s re-IPO.
Geveran’s FSIPA claim, however, is not a claim on the subscription agreement,
but rather a statutory claim, meaning that materiality must be based on the effect of the
omission and misrepresentation on a reasonable investor looking at the total mix of
information. See Levinson, 485 U.S. at 231–32. McGladrey looked at LSG’s accounting
13
error, prepared its own analysis, and determined that the misrepresentation of the 2008
and 2009 gross profits was not material and that LSG’s 2008 and 2009 financial
statements remained materially compliant. The defendants’ expert witnesses concurred
in this assessment. They focused on the significant changes to LSG’s business model
from 2008 and 2009 to 2010. In addition, GAAP are not a single, unified standard but
rather a set of possible accounting treatments. See Thor Power Tool Co. v. C.I.R., 439
U.S. 522, 544 (1979) (noting GAAP compliance is not a single standard). We believe a
reasonable juror could infer from these facts that the accounting error regarding the 2008
and 2009 gross margins would not be a material misrepresentation to a reasonable
investor. 20
Geveran points out that LSG quickly acquiesced to the SEC’s recommendation
that the 2008 and 2009 financial statements needed to be restated, a step that the SEC
only requires for past financial statements if the restatement is material. Yet many federal
courts have held that a misstatement under the accounting standard for materiality is not
per se material as a legal matter. See, e.g., In re Atlas Mining Co., Sec. Litig., 670 F.
Supp. 2d 1128, 1133 (D. Idaho 2009) (rejecting theory, under rule 10b-5, that restatement
of financials is an admission of falsity and materiality and collecting cases). The fact that
LSG agreed to restate its previous financial statements is strong evidence of a material
omission, but it is not dispositive and must be weighed against expert testimony and
20Halvorsen’s own analysis of LSG looked to LSG’s recent contract with Home
Depot and shifting base of manufacturing from the United States to Mexico, suggesting
the 2008 and 2009 gross margins were not material to the investment decision.
14
analysis by LSG’s accountant along with the fact that LSG’s business model was
changing significantly, making the 2008 and 2009 financials less relevant. 21
Finally, we note as well that materiality is most often a jury question as it involves
a full assessment of the various potentially relevant facts and surrounding circumstances.
See Ward v. Atl. Sec. Bank, 777 So. 2d 1144, 1146 (Fla. 3d DCA 2001). Although we do
not doubt that Geveran has a strong argument that LSG’s misstatements were material,
ultimately assessing alternative versions of events based on a review of various
documents and competing testimony is the role of the jury. We do not believe, given the
circumstances of this company, that the defendants’ omission of the SEC comment letters
and the misrepresentation that the 2008 and 2009 financial statements were GAAP
compliant were material as a matter of law.
In addition to a genuine issue of fact as to materiality, we also find a genuine issue
of material fact exists as to whether Geveran relied on the omitted SEC letters and the
misrepresented accounting figures. Consistent with Geveran’s concession and the
Florida Supreme Court’s opinion in Rousseff, Geveran must show that it actually relied
on the omission or misrepresentation. See 537 So. 2d at 981. But see Waters, 172 F.R.D.
at 492–96 (finding that statement as to justifiable reliance in Rousseff was dicta and
holding reliance is not an element of a section 517.301 claim seeking rescission). 22
21 We are mindful that Geveran was not only investing in a product line but also in
the entire company. Nonetheless, the shift in LSG’s core operations creates a genuine
issue of fact as to the materiality of LSG’s past performance.
22 We note as well that the Florida Supreme Court’s decision in Rousseff refers to
justifiable reliance. 537 So. 2d at 981. Yet many cases state that the plaintiff in a FSIPA
claim need only show that the plaintiff relied on the omission or misrepresentation not that
such reliance was justified. See, e.g., Desrosiers, 689 So. 2d at 1107 (holding reliance is
an element of a cause of action under 517.301). In the context of common law claims, the
15
Even though an average investor would generally rely on assurances given in an
investment contract, Halvorsen is not an average investor. Halvorsen was given complete
access to confidential information at LSG as well as J.P. Morgan’s due diligence
materials. By his own admission, he looked carefully at LSG and performed an extensive
independent review. Halvorsen was adamant during his deposition that he was not an
accountant and could not have identified the flaws in LSG’s accounting merely by reading
Florida Supreme Court has held that the level of reliance required is dictated by the level
of culpability required to establish liability—liability for merely negligent
misrepresentations extends only to statements justifiably relied on while liability for
fraudulent statements extends to any statement actually relied on. See Butler v. Yusem,
44 So. 3d 102, 105 (Fla. 2010) (reiterating justifiable reliance is an element of a negligent
misrepresentation claim but not a claim for fraudulent misrepresentation); see also
Restatement (Second) of Torts § 552 cmt. a (1977) (“The liability stated in this Section is
likewise more restricted than that for fraudulent misrepresentation stated in § 531. When
there is no intent to deceive but only good faith coupled with negligence, the fault of the
maker of the misrepresentation is sufficiently less to justify a narrower responsibility for
its consequences.”).
In the context of a statutory claim under section 517.301 based on a direct sale,
we believe it is appropriate to presume that the reliance was justified. The exhaustive
statutory scheme created by the FSIPA evidences a legislative intent to extend liability
beyond the common law cause of action for negligent misrepresentation and encourage
investors to rely on representations from a seller of securities.
As to the state of mind required to establish liability, we follow the majority of
decisions surveyed in finding that liability exists for mere negligence. See, e.g.,
Gochnauer v. A.G. Edward & Sons, Inc., 810 F.2d 1042, 1046 (11th Cir. 1987). Claims
under the FSIPA seeking rescission based on a direct sale are more similar to section 12
claims under the federal Securities Act of 1933. Rousseff, 537 So. 2d at 981. In a section
12 claim, the burden is on the defendant to show that “he did not know, and in the exercise
of reasonable care could not have known” of the falsity of the information—although
recent amendments have added a requirement that the plaintiff show the omission
caused its damages. 15 U.S.C. § 77(l). We believe it would be inconsistent to require a
plaintiff proceeding under Florida law to prove fraudulent intent when the same plaintiff
proceeding under federal law would not be so required. See § 517.24, Fla. Stat. (2012)
(providing that “[t]he same civil remedies provided by laws of the United States for the
purchasers or sellers of securities, under any such laws, in interstate commerce extend
also to purchasers or sellers of securities under [the FSIPA]”).
16
note five of the 2010 form 10-K. Yet a jury could determine that Halvorsen conducted an
independent assessment of LSG and made his own decision to invest by relying on
information other than the 2008 and 2009 gross margins.
Furthermore, the circumstances surrounding the restatement suggest that
Halvorsen might not have relied on the omissions and misrepresentations. Halvorsen did
not react unfavorably when he learned of the restatement, and he continued to take an
optimistic view of LSG. Only when LSG’s re-IPO continued to lag and the company began
to offer more favorable credit terms to lure new investors did Halvorsen object and bring
suit. Even though the contract provisions and Halvorsen’s testimony are powerful
evidence that compliance with SEC regulations and GAAP principles was important to
the investment, there is a genuine issue of material fact as to whether Halvorsen relied
on those assurances in determining whether to invest or whether he made the decision
based on other information. His own assessment of LSG focused on the market for green-
energy technology generally and specific challenges facing LSG in shifting its
manufacturing base.
Therefore, we reverse the trial court’s order granting summary judgment on
Geveran’s claims under the FSIPA. We find there are genuine issues of material fact as
to whether the omission of the SEC letters and the misrepresentation of LSG’s 2008 and
2009 financial statements were material to a reasonable investor. We also find there is a
genuine issue of material fact as to Halvorsen’s reliance on those omissions and
misrepresentations.
17
Finally, we turn to Namburi, Schreck, and Pegasus’s claims that they are not liable
under FSIPA. 23 Section 517.211 creates liability for two classes of persons: 1) sellers,
and 2) “every director, officer, partner, or agent of . . . [the] seller.” § 517.211(2), Fla. Stat.
Liability for the second category is further limited to those persons who “personally
participated or aided in making the sale or purchase.” Id. Although “seller” is not a defined
term under the statue, the federal courts that have considered the issue of who is a “seller”
under section 517.211 have relied on the United States Supreme Court’s decision in
Pinter v. Dahl, 486 U.S. 622 (1988), which held that liability under section 12 of the
Securities Act extends to anyone who solicits an investment “motivated at least in part by
a desire to serve his own financial interests or those of the securities owner.” 486 U.S. at
647; see also Hilliard v. Black, 125 F. Supp. 2d 1071, 1083 (N.D. Fla. 2000) (noting
reliance on Pinter); Beltram v. Shackleford, Farrior, Stallings, & Evans, 725 F. Supp. 499,
500 (M.D. Fla. 1989) (same).
As to Pegasus, Geveran focuses on Pegasus’s role in soliciting Geveran’s
investment as a majority, controlling shareholder of LSG, which could bring Pegasus
under the category of “seller” for the purposes of section 517.211. See Pinter, 486 U.S.
at 647. LSG’s S-1/A and 2010 form 10-K disclosed Pegasus as a controlling shareholder
in LSG. There is no dispute that Pegasus had a significant financial interest in LSG. Thus,
23 Pegasus only appeals from the denial of its motion for summary judgment.
Accordingly, we assess the record under the summary-judgment standard of review. J.P.
Morgan appeals from the denial of its motion to dismiss the claims against Namburi and
Schreck. We review the order denying the motion to dismiss de novo to assess whether
the allegations contained within the four corners of the complaint, taken in the light most
favorable to Geveran, state a claim for which relief could be granted. See Huet v. Mike
Shad Ford, Inc., 915 So. 2d 723, 725 (Fla. 5th DCA 2005).
18
there is, at a minimum, a genuine issue as to whether Pegasus would have benefited
from Geveran’s investment.
There is also a genuine issue as to whether Pegasus and its employees solicited
Geveran’s investment and participated in the alleged omission and misrepresentations.
The record shows involvement by employees of Pegasus in making the sale. Weinberg,
in addition to his position with LSG as CEO, was a senior partner at Pegasus and was on
the board of LSG as a representative of Pegasus and its controlling interest in LSG.
Weinberg attended the meeting in Florida and was a primary salesman, according to
Halvorsen. In addition, Jared Berheim and Steven Wacaster, two other Pegasus
representatives, participated in the meeting. Weinberg, Bernheim, and Wacaster were
also provided copies of the SEC comment letters soon after they were received.
Pegasus argues, nonetheless, that it cannot be liable under section 517.211
because of the buyer/seller privity requirement it claims the Florida Supreme Court
recognized in Rousseff. 537 So. 2d at 981. This statement from Rousseff is misleading,
however. Section 517.211, by its plain language, extends liability to “every director,
officer, partner, or agent of or for the purchaser or seller.” § 517.211(2), Fla. Stat. Such
parties would not necessarily be in privity of contract with the buyer or seller in a strict
sense. Rousseff established that parties liable under section 517.211 have to be directly
involved in a sale of securities. The Court was distinguishing liability under section
517.211 from liability under federal rule 10b-5, which extends to fraud more generally,
whether conducted during the sale of securities or not. 24 The Court used “privity” as a
24
Rousseff, 537 So. 2d at 981 (“Rule 10b-5 is wide-ranging, covering a broad
spectrum of fraud. It applies to any person who is deceitful in connection with the
purchase or sale of securities. It requires no privity between buyer and seller. Remedies
19
short-hand for a direct sale of securities distinct from general corporate malfeasance. See
In re Sahlen & Assocs., Inc. Sec. Litig., 773 F. Supp. 342, 372 (S.D. Fla. 1991)
(disapproving of a reading of Rousseff in the “strict sense” based on the plain language
of the statute); see also Michael A. Hanzman, Civil Remedies Under the Fla. Secs. &
Investor Protection Act, 64 Fla. Bar J. 36 (Oct. 1990) (approving of Rousseff in general
but noting that the privity requirement, in a strict contractual sense, cannot be correct). In
this context, section 517.211 is transaction-specific, while other provisions of Florida
statutory and common law reach other types of wrong-doing by corporate officers.
To summarize, Pegasus’s pecuniary interest in Geveran’s investment and the
evidence of its participation in soliciting the investment creates a genuine issue of fact as
to Pegasus’s liability as a seller under the FSIPA, making the denial of Pegasus’s motion
for summary judgment appropriate. Yet, as with LSG and J.P. Morgan, genuine issues of
material fact preclude summary judgment in Geveran’s favor on its FSIPA claim.
As to Namburi and Schreck, Geveran’s second amended complaint alleged that
Namburi and Schreck were liable under section 517.301 for soliciting Geveran’s
investment and as agents of the seller, LSG. While Geveran’s complaint alleges that
Namburi and Schreck “solicited the sale of LSG stock,” it does not allege that Namburi
and Schreck had a personal interest in the transaction—only that J.P. Morgan would
receive an agency fee. There is also no allegation that Namburi and Schreck acted to
are not restricted. . . . The Florida statutes, on the other hand, are far more
restrictive. . . . Section 517.211 says that if a seller (or buyer) is untruthful in a sale, the
buyer (or seller) can rescind the transaction and get his money back. This provision
applies to a far more narrow group of activities than does rule 10b-5. Buyer/seller privity
is required.”).
20
serve the interests of LSG, given that they were actually employees of J.P. Morgan. Thus,
Geveran has not alleged facts sufficient to state a claim on the basis that Schreck and
Namburi are liable as “sellers.”
As noted above, section 517.211(2), Florida Statutes (2012), also extends liability
to “every director, officer, partner, or agent of or for the purchaser or seller, if the director,
officer, partner, or agent has personally participated or aided in making the sale or
purchase.” It is undisputed that Namburi and Schreck were not directors, officers, or
partners of LSG, so if they are liable under this category, it must be as agents of LSG.
The Fourth District Court of Appeal has held that under section 517.211, the term “agent”
is given its common meaning—“representation of a principal.” Rubin v. Gabay, 979 So.
2d 988, 990 (Fla. 4th DCA 2008). Agency can either be actual or apparent. Id. The
elements of actual agency are: 1) acknowledgment by the principal of the agent; 2) the
agent’s acceptance; and 3) control of the agent by the principal. Id.
While Namburi signed the agency agreement with LSG, he did so as an employee
of J.P. Morgan and not in his personal capacity. Schreck did not sign the agreement and
had a narrower role in the transaction. The second amended complaint specifically
alleges that J.P. Morgan had a contractual relationship with LSG to act as its agent in
soliciting the investment and attached the agreement to the complaint. The complaint
does not allege or demonstrate that either Namburi or Schreck accepted an agency
agreement with LSG or that LSG exercised control over them. Therefore, Geveran failed
to state a cause of action against Namburi and Schreck based on an actual agency
theory.
21
Likewise, whatever apparent agency is alleged to exist in the transaction was
apparent agency between J.P. Morgan and LSG, rather than Namburi, Schreck, and LSG.
The elements of apparent agency are: 1) a representation by the principal; 2) reliance by
a third party; and 3) a change in position by the third party based on the representation
of an agency relationship. Id. The second amended complaint does not allege any facts
relating to these elements but merely asserts that Namburi and Schreck were agents or
“subagents” of LSG by virtue of their employment with J.P. Morgan. This is insufficient to
state a cause of action under an apparent agency theory.
Geveran argues that Namburi and Schreck are nonetheless liable because they
“personally participated or aided in making the sale.” § 517.211(2), Fla. Stat. Yet personal
participation is a limitation on the list of people enumerated in the statute who may be
liable—officers, directors, partners, and agents who personally participated. Geveran
essentially reads additional language into the statute that would extend liability to anyone
who personally participated or aided in the sale even if the party did not have a pecuniary
interest in the investment and did not qualify as an officer, director, partner or agent under
the statute. This reading conflicts with the statutory text and is not supported by any other
source. Therefore, because Geveran failed to allege facts that would establish that
Namburi and Schreck were agents of LSG, the trial court erred in denying J.P. Morgan’s
motion to dismiss Geveran’s claim against them.
In sum, we find that the complaint did not state a claim against Namburi and
Schreck. Therefore, the trial court’s order denying J.P. Morgan’s motion to dismiss
Geveran’s claims against Namburi and Schreck is reversed and remanded with directions
for the court to dismiss the claims against them. The summary final judgment entered
22
against the remaining defendants, including Pegasus, is reversed because there are
genuine issues of material fact as to the materiality of LSG’s misrepresentations and
omissions as well as to Geveran’s reliance. The case is remanded for further
proceedings.
REVERSED; REMANDED with instructions.
SAWAYA and WALLIS, JJ., concur.
23
| {
"pile_set_name": "FreeLaw"
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0501n.06
No. 12-5931
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
TANYA MCKINNIE COBB, ) May 20, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Western
KEYSTONE MEMPHIS, LLC, ) District of Tennessee
d/b/a Compass Intervention Center, )
) OPINION
Defendant-Appellee.
Before: BOGGS and COLE, Circuit Judges; and QUIST, District Judge.*
Boggs, Circuit Judge. Plaintiff-appellant Tanya Cobb appeals a district-court order
granting summary judgment on her Tennessee common-law retaliatory-discharge claim in favor of
defendant-appellee Keystone Memphis, LLC d/b/a Compass Intervention Center. For the reasons
that follow, we affirm the district court’s order.
I
Keystone Memphis, LLC operates the Compass Intervention Center (Compass), a residential
treatment facility for at-risk children who suffer from mental, behavioral, and emotional disorders.
Cobb is an African-American female who began working at Compass in 2004 as a Community
Counselor. Cobb was directly supervised by two Community Counselor Coordinators, St. Paul
*
The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 12-5931
Cobb v. Keystone Memphis, LLC
Bourgeois and Sherman Golden. Bourgeois and Golden reported to Jill Clarke, the Director of
Nursing, and Clarke reported to Kevin Patton, Compass’s CEO. In her role as a Community
Counselor, Cobb was responsible for supervising the children assigned to her and was required, inter
alia, to check on these children every fifteen minutes and document the observations she made
during these checks on resident-observation forms. Compass has a clear policy that falsifying
resident-observation forms is a ground for termination.
Cobb and another Community Counselor, Lakesha Bishop, were assigned to an overnight
shift on September 13-14, 2009. Around 6 a.m. on the morning of September 14, Cobb entered the
room of two boys to find them with their genitalia exposed. Bishop brought the two boys to the
nurse in charge, Tracey Willis, and reported the incident. The matter was then referred to Director
of Risk Management Julia Lowery who conducted an investigation of the incident and, having
determined that it was an instance of sexual acting out rather than one of sexual abuse, did not file
a report with the Department of Child Services (DCS). During the investigation, Lowery reviewed
surveillance tapes, which led her to discover that Cobb and Bishop had failed to perform all of the
required fifteen-minute checks on the children under their care. Cobb contests neither that she and
Bishop failed to perform all of their required fifteen-minute checks nor that they then falsified
resident-observation forms to suggest that they had indeed conducted the requisite checks.
Lowery reported Bishop’s and Cobb’s actions to Director of Nursing Jill Clarke, and Clarke
reviewed the surveillance footage and discussed the infractions with Compass’s CEO, Kevin Patton.
Compass maintains that Clarke and Patton then made the decision to terminate both Bishop and
Cobb on or around September 23, 2009. Compass also asserts that while the decision to fire Cobb
-2-
No. 12-5931
Cobb v. Keystone Memphis, LLC
was made contemporaneously with the decision to fire Bishop, Bishop was notified first, on
September 29, 2009, because she was the only one of the two available at that time. Cobb, on the
other hand, had fallen ill and had not returned to work since the September 14 incident. Pursuant
to a doctor’s note, she was excused from returning to work until October 6, 2009. Michelle
Makepeace-Williams, Director of Compass’s Human Resources Department, was asked to review
the decision to fire Cobb from a human resources perspective, and she advised Patton that she did
not feel comfortable calling Cobb to set up a termination meeting until October 7, 2009, the day after
Cobb’s doctor’s note had expired.
On October 6, however, Bourgeois called Cobb. Bourgeois maintains that he called to set
up a meeting between Cobb and her supervisors to discuss her misconduct. He asserts that during
this call Cobb brought up Bishop’s termination and that Cobb stonewalled him and did not want to
meet in person because she knew she was going to be fired. Cobb, on the other hand, claims that
Bourgeois called her to ask her to report for work on October 9, 2009. She also claims that once she
told Bourgeois that she was planning on reporting the September 14 incident between the two boys
to DCS, Bourgeois informed her that she was fired and that she should not come in. Cobb admits,
however, that Bourgeois did not have the authority to fire her. See Appellant Br. at 15, 28.
Cobb called DCS on October 7, 2009, and reported the September 14 incident. Later that
same day, Makepeace-Williams called Cobb as planned to set up a termination meeting. Cobb told
Makepeace-Williams that due to another full-time job she held and her son’s schedule, she could not
meet with her before October 14, 2009. In addition, Cobb claims that during this conversation, she
told Makepeace-Williams about her filing a report with DCS. According to Cobb, it was only after
-3-
No. 12-5931
Cobb v. Keystone Memphis, LLC
she refused to tell Makepeace-Williams about the details of the report that Makepeace-Williams
refused to let her return to work on October 9 and instead forced her to attend the meeting on
October 14. On October 14, 2009, Cobb met with Makepeace-Williams, Clarke, and Bourgeois and
was told that she was being fired for failing to perform her 15-minute checks and for falsifying
documents.
After timely filing a charge with the Equal Employment Opportunity Commission and
receiving a right-to-sue letter, Cobb filed a complaint in the United States District Court for the
Western District of Tennessee, alleging, inter alia, common-law retaliatory discharge in connection
with her filing a report with DCS.1 Compass moved for summary judgment, and the district court
granted its motion. The district court first held that, in federal court, the framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applied when evaluating a Tennessee
common-law retaliatory-discharge claim at the summary-judgment stage. Using this framework, the
district court then held that Cobb could not establish the final element of a prima facie case of
common-law retaliatory discharge—that her report to DCS played a substantial role in Compass’s
decision to fire her—because the relevant decision-makers were not aware of Cobb’s report at the
time that they decided to terminate her. Specifically, it held that the decision to terminate Cobb was
made by Clarke and Patton in mid- to late September, well before she filed a report with DCS.
1
While Cobb alleged a number of other grounds for relief, the instant appeal concerns only
her common-law retaliatory-discharge claim. See Appellant Br. at 6, 17. Cobb’s original retaliatory-
discharge claim before the district court involved both a claim that she was fired for filing a report
with DCS and also that earlier, in March 2009, she was temporarily removed from the work schedule
for complaining about several of Compass’s workplace practices. Cobb only presses the first of
these two claims on direct appeal. See id. at 6, 17–18.
-4-
No. 12-5931
Cobb v. Keystone Memphis, LLC
Accordingly, the district court granted summary judgment for Compass on that claim. Cobb now
appeals.
II
As the Tennessee Supreme Court has explained:
By [state] statute, an employer cannot discharge employees because of their race,
religion, sex, age, physical condition or mental condition, because they report work
place safety violations, because they miss work to perform jury duty, or because they
refuse to participate in or be silent about illegal activity at the work place. In addition
to the protection afforded by [state] statutes, the Court in Chism v. Mid–South Milling
Co., Inc. suggested several examples of clearly defined public policies which could
warrant the protection provided by an action for retaliatory discharge.
Anderson v. Standard Register Co., 857 S.W.2d 555, 556 (Tenn. 1993) (internal citations omitted),
overruled on other grounds as recognized by Perkins v. Metro. Gov’t of Nashville, 380 S.W.3d 73,
79 n.8 (Tenn. 2012). Accordingly, Tennessee courts have recognized a common-law claim of
retaliatory discharge for employees who are retaliated against for reporting a “clear violation of some
well-defined and established public policy.” Chism v. Mid-S. Milling Co., Inc., 762 S.W.2d 552, 556
(Tenn. 1988).
To establish a prima facie case of common-law retaliatory discharge, an employee must
show: “(1) that an employment-at-will relationship existed; (2) that the employee was discharged,
(3) that the reason for the discharge was that the employee attempted to exercise a statutory or
constitutional right, or for any other reason which violates a clear public policy evidenced by an
unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in the
employer’s decision to discharge the employee was the employee’s exercise of protected rights or
compliance with clear public policy.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862
-5-
No. 12-5931
Cobb v. Keystone Memphis, LLC
(Tenn. 2002). The Tennessee Supreme Court has held that “[p]roof of a causal link between the
employee’s exercise of a protected right or compliance with clear public policy and the employer’s
decision to discharge the employee then ‘imposes upon the employer the burden of showing a
legitimate, non-pretextual reason for the employee’s discharge.’” Gossett v. Tractor Supply Co.,
Inc., 320 S.W.3d 777, 781 (Tenn. 2010) (quoting Anderson, 857 S.W.2d at 559), superseded by
statute as recognized by Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 758 (6th Cir. 2012).
Accordingly, the Tennessee state courts have adopted the federal McDonnell Douglas framework
for analyzing common-law retaliatory-discharge claims, requiring first that a plaintiff establish a
prima facie case and then shifting to the defendant the burden of presenting a legitimate non-
retaliatory reason for terminating the plaintiff-employee.
In Gossett, the Tennessee Supreme Court further held that while the McDonnell Douglas
framework is applicable during the trial stage of a Tennessee common-law retaliatory-discharge
claim, it does not apply at the summary-judgment phase. Id. at 785–86. Rather, once an employee
establishes a prima facie case of retaliatory discharge, an employer, to obtain summary judgment,
must “produce evidence or refer to evidence in the record that affirmatively negates an essential
element of the nonmoving party’s claim or shows that the nonmoving party cannot prove an essential
element of the claim at trial.” Id. at 782 (internal quotation marks omitted).
The parties in this case dispute whether federal courts, sitting in diversity, are bound to apply
the summary-judgment standard announced in Gossett rather than the standard provided by the
McDonnell Douglas framework. Ultimately, however, we need not assess Gossett’s applicability
-6-
No. 12-5931
Cobb v. Keystone Memphis, LLC
to federal courts, as Compass’s motion for summary judgment prevails under either the Gossett or
McDonnell Douglas framework.
III
A
Before proceeding, it is worth mentioning what Gossett’s holding did not alter about the
summary-judgment phase for common-law retaliatory-discharge claims. Under both Gossett and
McDonnell Douglas, the plaintiff employee still must establish a prima facie case. The two
frameworks differ only as to what evidence a defendant employer must then produce in order to rebut
the prima facie case. Under McDonnell Douglas, evidence of a legitimate non-discriminatory reason
will suffice, while Gossett requires evidence that actually negates an element of the prima facie case.
Cobb argues that “[p]ursuant to Gossett, a plaintiff requires no proof to survive summary
judgment unless the defendant moving for summary judgment first shows there is no genuine issue
as to any material fact on an essential element.” Appellant Br. at 24–25 (emphasis added).
Apparently, Cobb believes that to prevail on a motion for summary judgment under Gossett,
Compass must affirmatively negate a required element of her retaliatory-discharge claim even if she
has not pled any facts sufficient to establish a prima facie case. This is a misreading of Gossett and
an untenable view of pretrial practice and procedure. The idea that a plaintiff could survive a motion
for summary judgment without having pled any facts to support the elements of her claim is contrary
to the most basic rules of the American legal system and, more specifically, Tennessee state
procedure. See Tenn. R. Civ. P. 8.01 (“A pleading which sets forth a claim for relief . . . shall
contain [] a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”);
-7-
No. 12-5931
Cobb v. Keystone Memphis, LLC
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” (alteration in
original) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557
(2007))).
While it is true that Gossett contained language stating that “[a] plaintiff requires no proof
to survive summary judgment unless the defendant moving for summary judgment first shows there
is no genuine issue as to any material fact on an essential element,” Gossett, 320 S.W.3d at 785–86,
this statement clearly presumed that a plaintiff had first established a prima facie case and merely
emphasized that a plaintiff need not take any further action unless the defendant could affirmatively
negate an element of the already established prima facie case. As Gossett itself explained, to prevail
on summary judgment, the moving party “must point to evidence that tends to disprove a material
factual allegation made by the nonmoving party.” Id. at 782 (emphasis added) (internal quotation
marks omitted). Thus, the non-moving party clearly is required to present material factual
allegations at the outset to establish its prima facie case. The only change Gossett wrought was to
alter the employer’s burden once the prima facie case was established.
B
Assessing Cobb’s claim under either Gossett or McDonnell Douglas, it is readily apparent
that her claim cannot survive Compass’s motion for summary judgment. As the district court
appropriately found, Cobb has failed to produce evidence to establish the fourth element of common-
law retaliatory discharge—that her report to DCS was a substantial factor in Compass’s decision to
-8-
No. 12-5931
Cobb v. Keystone Memphis, LLC
discharge her. Compass maintains that Patton and Clarke made the decision to fire Cobb in mid-
to late September—at the same time as Bishop’s termination and well before Cobb made her report
to DCS. If these facts are taken as true, the decision to terminate Cobb, made long before she had
contacted DCS, could not have been causally related to her report to DCS. Accordingly, the critical
question on appeal is whether the decision to fire Cobb was made before or after the decision-makers
at Compass had learned of her report to DCS. Whether operating under the direction of Gossett or
McDonnell Douglas, Cobb initially must present evidence to support this fourth element of her prima
facie case. Viewing the evidence in the light most favorable to Cobb, she has failed to carry this
burden.
1
Cobb relies on two alleged incidents to establish that her report to DCS was a substantial
factor in her termination: (1) her October 6 conversation with Bourgeois and his placing her on a
work chart; and (2) her October 7 conversation with Makepeace-Williams. With regard to the first
alleged incident, even accepting Cobb’s version of her conversation with Bourgeois, she has not
produced evidence to dispute the fact that the decision to fire her was made much earlier by Patton
and Clarke. Assuming, as we must, that Bourgeois’s telling Cobb that she was fired occurred only
after Cobb revealed her intention to file a report with DCS, this reaction is of no import, as Cobb
admits that Bourgeois had no authority to fire her. See Appellant Br. at 15, 28. Logically speaking,
the offhand comment of an individual who had no input into hiring and firing decisions does nothing
to inform our inquiry into when or why the actual decision-maker fired an employee. See Roberts
v. Principi, 283 F. App’x 325, 332 (6th Cir. 2008) (“[T]he discriminatory or retaliatory animus of
-9-
No. 12-5931
Cobb v. Keystone Memphis, LLC
a coworker is not usually relevant to whether the employer [retaliated]. Rather, the relevant beliefs
or motivations are those of the actual decisionmaker . . . .”); see also Rowan v. Lockheed Martin
Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004) (holding that when an individual is not “a
decision-maker in connection with the discharges[,] . . . whatever statements he made are
irrelevant”); Geiger v. Tower Auto., 579 F.3d 614, 620–21 (6th Cir. 2009) (noting that
“discriminatory statements must come from decisionmakers to constitute evidence of
discrimination”). Even if Bourgeois did respond negatively to Cobb’s intending to file a DCS report
and wished that he himself could fire her for such an action, his personal reaction sheds no light on
whether the real decision-makers at Compass, Patton and Clarke, acted for the same reasons. Thus,
Bourgeois’s alleged statement does not establish any kind of causal connection between Cobb’s
filing of a report and Compass’s actual decision to discharge her. Furthermore, Bourgeois’s alleged
comment that Cobb was fired is perfectly consistent with Compass’s assertion that the decision to
fire Cobb had already been made by Patton and Clarke.
Also related to Cobb’s conversation with Bourgeois is her claim that Bourgeois had placed
her on the work chart and told her to come in to work. Cobb argues that her being listed on this chart
as working on October 9 indicates that she had not been fired as of that date. We first note that even
if an employee is scheduled to work, this does not preclude the possibility that a decision has already
been made to fire that employee in the near future. Employers often continue to employ individuals,
sometimes for reasonably long periods of time, with the intention of ultimately firing them.
Accordingly, Bourgeois’s placing Cobb on the work schedule for October 9 and his alleged
statement asking her to come in to work do not indicate one way or the other whether the decision-
- 10 -
No. 12-5931
Cobb v. Keystone Memphis, LLC
makers at Compass had already made the decision to fire Cobb earlier in September and well before
her report to DCS.
In addition, it is uncontested that Bourgeois alone created the work schedule, and that, as
mentioned above, he was not involved in the decision to fire Cobb. Thus, Bourgeois’s placing Cobb
on the work schedule does not indicate that the real decision-makers within Compass had not already
made the decision to terminate Cobb, especially since Bourgeois stated in his deposition that he
created the schedule in mid-September before being notified of Patton and Clarke’s decision to fire
Cobb.
Cobb points out that Bishop, who was also fired for failing to conduct fifteen-minute checks
during her September 13-14 shift, was not placed on the work schedule, arguing that this omission
refutes Compass’s claim that the decisions to fire Cobb and Bishop were made contemporaneously.
Yet, as Compass points out, it is uncontested that Bishop was immediately notified of her
termination, thus her removal and Cobb’s non-removal are perfectly consistent. In fact, Bishop’s
September 29 termination—for misconduct identical to Cobb’s that was jointly committed by the
two of them during the same incident—strongly suggests that Compass’s decision to discharge Cobb
was also made in mid- to late September. Cobb’s reliance on the time line of Bishop’s firing ignores
the fact that had Cobb not been out on sick leave, there is no reason to believe that she would not
have been fired at the same time as Bishop.
2
Next, Cobb turns to her alleged conversation with Makepeace-Williams on October 7. Cobb
argues, as she did before the district court, that this conversation establishes the fourth element of
- 11 -
No. 12-5931
Cobb v. Keystone Memphis, LLC
a prima facie case of retaliatory discharge.2 This argument founders for the same reason that Cobb’s
reliance on Bourgeois’s comment failed—Makepeace-Williams was not a decision-maker. Compass
has submitted evidence indicating that Patton and Clarke made the decision to terminate Cobb and
that Makepeace-Williams had no such decision-making power. Compass asserts that Makepeace-
Williams’s only involvement was to review Patton and Clarke’s decision from a human-resources
perspective and then contact Cobb to schedule a meeting. If this is indeed true, the statements that
Makepeace-Williams allegedly made to Cobb do not bear on when and why the real decision to fire
Cobb was made.
Cobb contests Compass’s assertion that Makepeace-Williams was not a decision-maker,
making the conclusory statement that “the proof shows that Michelle-Makepeace Williams [sic] was
a decision-maker with respect to the termination of Ms. Cobb who specifically informed the [sic]
Ms. Cobb that she would not be terminated if provided information concerning her report of abuse
to the State on October 7, 2009.” Appellant Br. at 30. But Cobb points to no evidence in the record,
or anywhere else for that matter, contradicting Compass’s assertion that Makepeace-Williams had
no authority to fire Cobb. Rather, Cobb simply relies on her own speculative belief that because
Makepeace-Williams allegedly told Cobb she was fired, she must have been the one who made that
2
For the first time on appeal, Cobb also argues that this conversation constitutes direct
evidence of retaliatory discharge and can suffice to prove her claim without reliance on the four-
element prima-facie-case framework employed when only circumstantial evidence is available.
Having failed to present this argument before the district court, it is waived. Thurman v. Yellow
Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996).
- 12 -
No. 12-5931
Cobb v. Keystone Memphis, LLC
decision. According to Cobb, this creates a genuine dispute of material fact as to whether
Makepeace-Williams was a decision-maker.
Cobb fundamentally misunderstands what constitutes a genuine dispute of material fact,
essentially arguing that if she contests a fact in her brief, no matter how unfounded her objection,
her claim survives summary judgment. This is not the case. See Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the party opposing summary judgment
must “do more than simply show that there is some metaphysical doubt as to the material facts”);
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“[T]he party opposing [a motion for
summary judgment] may not rely on the hope that the trier of fact will disbelieve the movant’s denial
of a disputed fact but must make an affirmative showing with proper evidence in order to defeat the
motion.” (internal quotation marks omitted)); Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932
(7th Cir. 1995) (“Speculation does not create a genuine issue of fact; instead, it creates a false issue,
the demolition of which is a primary goal of summary judgment.”). Simply speculating that
Makepeace-Williams was a decision-maker—without any further proof and in the face of Compass’s
affirmative evidence to the contrary—does not create a genuine dispute for the purposes of summary
judgment. Accordingly, Cobb cannot dispute that Makepeace-Williams was a non-decision-maker,
and Makepeace-Williams’s statement therefore cannot dispute Compass’s evidence that the true
decision to fire Cobb was made by Patton and Clarke well before Cobb filed her report with DCS.
C
In sum, neither Cobb’s interactions with Bourgeois nor her conversation with Makepeace-
Williams establish a causal connection between her report to DCS and her termination. Cobb has
- 13 -
No. 12-5931
Cobb v. Keystone Memphis, LLC
thus failed to establish the fourth element of a prima facie case of common-law retaliatory discharge
and cannot survive summary judgment under either the Gossett or McDonnell Douglas standard.
IV
For the foregoing reasons, we AFFIRM the order of the district court.
- 14 -
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539 U.S. 922
Elginv.United States.
No. 02-10571.
Supreme Court of United States.
June 9, 2003.
1
Appeal from the C. A. 6th Cir.
2
Certiorari denied. Reported below: 57 Fed. Appx. 659.
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} |
16-3852
Molina-Hernandez v. Sessions
BIA
Straus, IJ
A208 197 012
A208 197 014
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 23rd day of May, two thousand eighteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 LEIDY XIOMARA MOLINA-HERNANDEZ,
14 JORGE VALDEMAR ANDRADE-MOLINA,
15
16 Petitioners,
17
18 v. 16-3852
19 NAC
20
21 JEFFERSON B. SESSIONS III,
22 UNITED STATES ATTORNEY GENERAL,
23
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONERS: Robert C. Ross, West Haven, CT.
1
2 FOR RESPONDENT: Chad A. Readler, Acting Assistant
3 Attorney General, Civil Division;
4 Cindy S. Ferrier, Assistant
5 Director; Matt A. Crapo, Trial
6 Attorney, Office of Immigration
7 Litigation, United States
8 Department of Justice,
9 Washington, DC.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioners Leidy Xiomara Molina-Hernandez and Jorge
16 Valdemar Andrade-Molina, natives and citizens of Guatemala,
17 seek review of an October 19, 2016, decision of the BIA
18 affirming an April 25, 2016, decision of an Immigration Judge
19 (“IJ”) denying Molina-Hernandez’s application for asylum,
20 withholding of removal, and relief under the Convention
21 Against Torture (“CAT”). 1 In re Leidy Xiomara Molina-
22 Hernandez, Jorge Valdemar Andrade-Molina, Nos. A208 197
23 012/014 (B.I.A. Oct. 19, 2016), aff’g Nos. A208 197 012/014
24 (Immig. Ct. Hartford Apr. 25, 2016). We assume the parties’
25 familiarity with the underlying facts and procedural history
1Andrade-Molina, Molina-Hernandez’s minor son, was included
on Molina-Hernandez’s application as a derivative
beneficiary.
2
1 in this case.
2 Under the circumstances of this case, we review the IJ’s
3 decision as modified by the BIA (i.e., excluding the
4 particular social group findings, which the BIA declined to
5 reach). See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
6 520, 522 (2d Cir. 2005). The applicable standards of review
7 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
8 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For the
9 reasons that follow, we conclude that the agency did not err
10 in determining that Molina-Hernandez failed to show past
11 persecution or a well-founded fear of future persecution.
12 Past persecution can be based on harm other than threats
13 to life or freedom, “includ[ing] non-life-threatening
14 violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d
15 223, 226 n.3 (2d Cir. 2006), but the harm must be sufficiently
16 severe to rise above “mere harassment,” Ivanishvili v. U.S.
17 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006); see Mei
18 Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
19 (“[P]ersecution is an extreme concept that does not include
20 every sort of treatment our society regards as offensive.”
21 (citation and internal quotation marks omitted)). The agency
22 did not err by determining that Molina-Hernandez’s past harm
3
1 did not rise to the level of persecution. See Hui Lin Huang
2 v. Holder, 677 F.3d 130, 136 (2d Cir. 2012) (reviewing de
3 novo whether harm rises to level that constitutes
4 persecution). Molina-Hernandez testified that she received
5 three threatening calls on her mobile phone from an
6 unidentified individual demanding money and threatening her
7 son’s life if she did not pay. The agency considered this
8 testimony and correctly determined that these threats,
9 without more were not sufficient. See Ci Pan v. U.S. Att’y
10 Gen., 449 F.3d 408, 412-13 (2d Cir. 2006) (“This Court, and
11 others, previously have rejected similar claims involving
12 ‘unfulfilled’ threats.” (collecting cases)).
13 Absent past persecution, Molina-Hernandez had the burden
14 of showing a well-founded fear of future persecution, which
15 is a “subjective fear that is objectively reasonable.” Dong
16 Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir. 2009)
17 (citations and internal quotation marks omitted). The agency
18 did not err in concluding that Molina-Hernandez failed to
19 meet her burden because she had no evidence of continuing
20 threats or any continued interest in her. See Jian Xing Huang
21 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
22 of solid support in the record,” a fear of persecution is not
4
1 well founded and “is speculative at best.”); see also See Hui
2 Lin Huang, 677 F.3d at 135 (holding that “de novo review
3 applies to the ultimate question of whether the applicant has
4 sustained her burden to establish that her subjective fear of
5 persecution is objectively reasonable”). Absent a well-
6 founded fear of persecution, Molina-Hernandez necessarily
7 failed to meet the higher burdens for withholding of removal
8 and CAT relief. Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir.
9 2013). Because the agency’s conclusions regarding past
10 persecution and a well-founded fear of persecution are
11 dispositive, we decline to reach the agency’s alternative
12 ruling regarding the ability of the Guatemalan government to
13 come to Molina-Hernandez’s aid. INS v. Bagamasbad, 429 U.S.
14 24, 25 (1976) (“As a general rule courts and agencies are not
15 required to make findings on issues the decision of which is
16 unnecessary to the results they reach.”).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any pending motion
19 for a stay of removal in this petition is DISMISSED as moot.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
5
| {
"pile_set_name": "FreeLaw"
} |
Slip Op. 16-78
UNITED STATES COURT OF INTERNATIONAL TRADE
ZOJIRUSHI AMERICA CORP.,
Plaintiff, Before: Timothy C. Stanceu, Chief Judge
v.
Court No. 15-00268
UNITED STATES,
Defendant.
OPINION
[Dismissing the action for lack of subject matter jurisdiction]
Dated: August 4, 2016
John M. Peterson, Neville Peterson LLP, of New York, NY, for plaintiff. With him on
the brief were Maria E. Celis and Elyssa R. Emsellem.
Alexander Vanderweide, Trial Attorney, Civil Division, U.S. Department of Justice, of
New York, NY, for defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant
Director. Of counsel on the brief was Yelena Slepak, Office of the Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection.
Stanceu, Chief Judge: In this action, plaintiff Zojirushi America Corporation
(“Zojirushi”) seeks to compel U.S. Customs and Border Protection (“Customs” or “CBP”) to
issue a decision granting or denying the protest it submitted following CBP’s “as entered”
liquidations of four of Zojirushi’s entries of imported merchandise. In the protest, Zojirushi
raised for the first time a claim for duty-free treatment of its merchandise under the Generalized
System of Preferences (“GSP”) program. Although Customs issued a decision on that protest,
Customs designated its action as a decision to “reject,” rather than grant or deny, the protest.
Court No. 15-00268 Page 2
Upon taking this action, Customs provided as a “protest explanation” the following notation:
“Headquarter Ruling HQ H193959 which states that GSP claims are not protestable.”
Before the court is defendant’s motion to dismiss under USCIT Rule 12(b)(6) for failure
to state a claim upon which relief can be granted. The court instead dismisses this action for lack
of subject matter jurisdiction.
I. BACKGROUND
The facts presented as background are based on the complaint and the submissions of the
parties. Zojirushi, a California corporation with a principal place of business in Torrance,
California, is an importer of vacuum bottles and jars, electrothermic home appliances, and other
housewares. Compl. ¶ 4 (Sept. 25, 2015), ECF No. 4. Between May 11, 2013 and July 30,
2013, Zojirushi made four consumption entries of various vacuum bottles and food jars imported
from Thailand at the port of Los Angeles/Long Beach, entering the vacuum bottles under
subheading 9617.00.10, Harmonized Tariff Schedule of the United States (2013) (“HTSUS”),
dutiable at 7.2% ad. val. and entering the jars under subheading 9617.00.30, HTSUS, dutiable at
6.9% ad val. See id. at Ex. A & ¶¶ 6, 8; Def.’s Mot. to Dismiss 1-2. Between May 11, 2014 and
July 30, 2014, Customs liquidated each of the four entries “as entered,” i.e., at the classifications
and rates of duty set forth by Zojirushi in the entry documentation. See id.
Zojirushi filed the protest at issue in this case, Protest No. 2704-14-101380, on
September 16, 2014, using CBP Form 19 (“Protest”). See Compl. at Ex. A. The protest included
an application for further review. Id. Customs returned the Form 19 to Zojirushi, which
Zojirushi received on December 4, 2014. Id. Customs had filled out Section VI of the form
(“Decision”) by checking a box designated “Rejected as non-protestable.” Id. Boxes designated
“Denied in full for the reason checked” and “Denied in part for the reason checked” were left
blank. Id. The notation “Headquarter Ruling HQ H193959 which states that GSP claims are not
Court No. 15-00268 Page 3
protestable” was handwritten below the boxes, and the bottom of the form bore a signature of a
Customs import specialist and the date of December 3, 2014. Id.
Zojirushi instituted this action on September 25, 2015. Summons, ECF No. 1; Compl.
The following December, defendant filed its motion to dismiss under USCIT Rule 12(b)(6).
Def.’s Mot. to Dismiss, Mem. in Supp. of Def.’s Mot. to Dismiss (Dec. 11, 2015), ECF No. 9
(“Def.’s Mem.”). Zojirushi filed its opposition to the motion to dismiss on January 12, 2016.
Mem. of Pl. in Opp’n to Def.’s Mot. to Dismiss, ECF No. 11. Defendant replied on February 1,
2016. Def.’s Reply to Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss, ECF No. 12. (“Def.’s
Reply”).
II. DISCUSSION
Zojirushi’s complaint contains three counts, each of which Zojirushi relates to the action
taken by Customs to reject its protest. In Count I, Zojirushi claims that CBP’s refusal to allow or
deny its protest was contrary to section 515(a) of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C.
§ 1515(a). Compl. ¶ 19. In Count II, it contends that a Customs guidance document issued to
Customs Port Directors, dated August 11, 2014, “Guidance: Post-Importation Claims for
Preferential Tariff Treatment,” id. Exhibit B, and the Customs Headquarters ruling that Customs
cited in rejecting its protest were invalidly issued contrary to notice-and-comment rulemaking
procedures required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. Id. ¶¶ 21-
28. In Count III, Zojirushi repeats the claim stated in Count I and contends that the guidance
document is an effective repeal of a Customs regulation, 19 C.F.R. § 10.112, which Zojirushi
construes to allow post-entry GSP claims. Id. ¶¶ 30-38. As a remedy, Zojirushi seeks an order
compelling Customs to review, and allow or deny, its protest and to set aside the guidance
document as having been issued contrary to law. Id. at Prayer for Relief.
Court No. 15-00268 Page 4
Zojirushi asserts jurisdiction under the “residual jurisdiction” provision of section 201 of
the Customs Courts Act of 1980, 28 U.S.C. § 1581(i)(4), id. ¶ 2, under which the Court of
International Trade is granted exclusive jurisdiction of a civil action commenced against the
United States “that arises out of any law of the United States providing for—(1) revenue from
imports or tonnage . . . or (4) administration and enforcement with respect to the matters referred
to” in paragraph (1). 28 U.S.C. § 1581(i).1
Defendant does not move to dismiss this case for lack of subject matter jurisdiction.
Nevertheless, this case presents a jurisdictional issue because the court may not exercise the
jurisdictional grant of § 1581(i) if the action may be brought, or could have been brought, under
any of the subsections (a) through (h) of § 1581, unless the remedy available under one of those
subsections is, or would have been, “manifestly inadequate.” Miller & Co. v. United States, 824
F.2d 961, 963 (Fed. Cir. 1987). Subsection (a) provides the Court exclusive jurisdiction over a
civil action “commenced to contest the denial of a protest . . . under section 515 of the Tariff Act
of 1930 [19 U.S.C. § 1515].” 28 U.S.C. § 1581(a).
The parties disagree on whether the decisions of Customs Zojirushi contested
administratively by filing Protest No. 2704-14-101380 were ones that properly were subject to
challenge by means of a protest filed according to section 514(a) of the Tariff Act, 19 U.S.C.
§ 1514(a). The court must decide this question in order to determine whether it may exercise
subject matter jurisdiction in this case. If the answer to the question is no, then jurisdiction under
28 U.S.C. § 1581(i)(4) possibly is available for a challenge to the action Customs took in
1
All citations to the United States Code herein are to the 2012 edition unless otherwise
indicated. All citations to the Customs regulations herein are to the 2014 edition of the Code of
Federal Regulations unless otherwise indicated.
Court No. 15-00268 Page 5
rejecting the protest. If the answer to the question is yes, then the court must decide the status of
Protest No. 2704-14-101380, which the court views as an issue to be decided according to
section 515 of the Tariff Act, 19 U.S.C. § 1515.
The court is able to determine the relevant jurisdictional facts by considering those
factual allegations in the complaint that defendant expressly or impliedly admits in its motion to
dismiss. For the reasons presented below, the court decides, based on those jurisdictional facts,
that Zojirushi’s protest contested decisions that may be protested under 19 U.S.C. § 1514(a).
According to those same facts as viewed according to 19 U.S.C. § 1515, the court also decides
that the action taken by Customs was neither an allowance nor a denial of Protest No. 2704-14-
101380. Because that action was neither an allowance nor a denial of the protest, the remedy
Congress provided in 19 U.S.C. § 1515(b) and 28 U.S.C. § 1581(a) has been, and remains,
available to Zojirushi. Accordingly, the court may not exercise jurisdiction over this action
according to 28 U.S.C. § 1581(i)(4).
A. The Liquidations Zojirushi Contested Before Customs Are Decisions that May Be Protested
Zojirushi protested the liquidations of the four entries that are the subjects of this case.
Compl. at Ex. A (“Zojirushi America Corporation hereby protests the liquidation of its imported
merchandise, consisting of vacuum bottles and jars, entered and released against the Customs
entries listed in Box 5.”). The liquidations occurred at the rates (7.2% and 6.9% ad val.) and
amounts of duty asserted at the time of entry. The protest claims Zojirushi brought against the
four liquidations were that the merchandise on the four entries qualified for duty-free tariff
treatment under the GSP program. Id. ¶ 9.
Under section 514 of the Tariff Act, when read in pertinent part, a protest may be filed to
contest “any clerical error, mistake of fact, or other inadvertence . . . adverse to the importer, in
any entry, liquidation, or reliquidation, and, decisions of the Customs Service . . . as to . . . the
Court No. 15-00268 Page 6
liquidation . . . of an entry . . . pursuant to . . . section 1500 of this title . . . .” 19 U.S.C.
§ 1514(a)(5). The breadth of this language convinces the court that Zojirushi’s protest raised, as
to each of the four liquidations of entries, claims within the scope of 19 U.S.C. § 1514(a). The
language describes these claims in two separate respects. First, as to each of the four entries, the
omission of the GSP claim at the time of entry was an “inadvertence . . . adverse to the importer”
that appeared in an “entry” and that was reflected in a “liquidation.” See 19 U.S.C. § 1514(a).
Second, the statute allows “decisions of the Customs Service . . . as to . . . the liquidation . . . of
an entry” to be protested. See 19 U.S.C. § 1514(a)(5). Therefore, if the court follows the plain
meaning of the statute, then it must consider the four liquidations to be decisions that are
reviewable in a protest made according to 19 U.S.C. § 1514. In moving to dismiss (albeit for
failure to state a claim upon which relief can be granted, not for lack of subject matter
jurisdiction), defendant raises several arguments as to why the court should conclude to the
contrary. The court is not persuaded by these arguments.
1. Defendant’s Argument Misinterprets 19 C.F.R. § 10.172
Arguing that the governing Customs regulations “require that a claim for GSP treatment
be made at entry,” Def.’s Reply 1-2, defendant maintains that Zojirushi did not challenge a
protestable decision. Because Zojirushi did not make a timely GSP claim as required by the
Customs regulations, defendant explains, “Customs could not – and did not – make a decision as
to the GSP eligibility of the imported merchandise,” adding that “[w]ithout such a decision,
Zojirushi’s protest could not be approved or denied pursuant to 19 U.S.C. §1515, and Customs
properly rejected the protest as invalid.” Def.’s Mem. 5.
The court considers defendant’s interpretations of the Customs regulations without
deference. While an agency’s interpretations of its own regulations are entitled to deference, see
Christopher v. SmithKline Beacham, 567 U.S. __, __, 132 S. Ct. 2156, 2166-67 (2012); Auer v.
Court No. 15-00268 Page 7
Robbins, 519 U.S. 452 (1997), here defendant is relying on interpretations of the Customs
regulations that differ from those Customs has put forth in published rulemaking decisions, as
the court discusses below in this Opinion and Order.2
Defendant relies on 19 C.F.R. § 10.172, which, according to defendant, “provides in
relevant part that to obtain duty-free treatment under GSP, ‘a written claim shall be filed on the
entry document by placing the symbol “A” as a prefix to the subheading of the [HTSUS] for
each article for which such treatment is claimed.’” Def.’s Mem. 4. According to defendant,
“[a]lthough a decision to deny a GSP claim is protestable under 19 U.S.C. §1514, a GSP claim
nonetheless must be asserted at entry.” Id. at 7.
The court rejects defendant’s argument because it is based on a misinterpretation of
19 C.F.R. § 10.172. Defendant’s memorandum disregards the plain meaning of the regulation
and the regulatory history, which confirms that GSP claims may be made after the time of entry.
The text of 19 C.F.R. § 10.172 is as follows:
A claim for an exemption from duty on the ground that the Generalized
System of Preferences applies shall be allowed by the port director only if he is
satisfied that the requirements set forth in this section and §§ 10.173 through
10.178 have been met. If duty-free treatment is claimed at the time of entry, a
written claim shall be filed on the entry document by placing the symbol “A” as a
2
Defendant’s submissions are confusing as to the position defendant actually is taking on
when a GSP claim must be made in order to be timely under the Customs regulations. Defendant
argues, variously, that the claim must be made at the time of importation, Def.’s Reply 1, but
also argues that the claim must be made at the time of entry, id. at 1-2 and Def.’s Mem 4-5.
Under customs law, the date of importation is not the same concept as the date (or time) of entry.
See 19 C.F.R. § 101.1. In insisting either that a GSP claim be made at time of importation or the
time of entry, defendant’s position seems at odds with the position taken in the Customs internal
guidance document, “Guidance: Post-Importation Claims for Preferential Tariff Treatment,” that
Zojirushi attaches as Exhibit B to the complaint, under which GSP claims may be made after the
time of importation and after the time of entry if they are made prior to liquidation according to
entry amendment procedures. At another point in its submissions, defendant seems to agree with
the guidance document. See Def.’s Mem. 12-14.
Court No. 15-00268 Page 8
prefix to the subheading of the Harmonized Tariff Schedule of the United States
for each article for which such treatment is claimed.
19 C.F.R. § 10.172 (emphasis added). In quoting the provision, Def.’s Mem 4, defendant’s
memorandum omits the introductory dependent clause, “If duty-free treatment is claimed at the
time of entry . . . ,” which indicates that a claim may be made at a time other than at the time of
entry. The regulatory history of § 10.172 reveals that the language defendant omitted from the
quotation was added in 1977 precisely to provide for such post-entry GSP claims. Further, the
regulatory history demonstrates that defendant incorrectly construes the present § 10.172 to
preclude these claims.
In the form in which it existed prior to a regulatory amendment made effective on
January 17, 1977, 19 C.F.R. § 10.172 read essentially as it does today, except that the
introductory clause, “If duty-free treatment is claimed at the time of entry . . . ,” was not present.3
The 1977 amendment, effected by Treasury Decision 77-36, revised § 10.172 to add that
introductory clause and to add a sentence at the end. The revised text, with the additions
highlighted, read as follows:
3
Prior to the change made effective January 17, 1977, the full text of 19 C.F.R. § 10.172
read as follows:
A claim for an exemption from duty on the ground that the Generalized
System of Preferences applies shall be allowed by the appropriate district director
only if he is satisfied that the requirements set forth in this section and
sections 10.173 through 10.178 have been met. A written claim for duty-free
entry shall be filed on the entry document by placing the symbol “A” as a prefix
to the Tariff Schedules of the United States Annotated item number for each
article for which such treatment is claimed.
T.D. 76-2, Duty Free Entry of Certain Merchandise From Designated Beneficiary Developing
Countries, 40 Fed. Reg. 60,047, 60,048 (U.S. Customs Serv. Dec. 31, 1975).
Court No. 15-00268 Page 9
A claim for an exemption from duty on the ground that the Generalized
System of Preferences applies shall be allowed by the appropriate district director
only if he is satisfied that the requirements set forth in this section and
sections 10.173 through 10.178 have been met. If duty-free treatment is claimed
at the time of entry, a written claim shall be filed on the entry document by
placing the symbol “A” as a prefix to the Tariff Schedules of the United States
Annotated item number for each article for which such treatment is claimed. If
duty-free treatment is claimed subsequent to the time of entry in accordance with
§ 10.112, the filing of the Certificate of Origin, or a duplicate thereof as
described in § 10.173(a)(2), shall constitute the written claim.
T.D. 77-36, Late Filing of Generalized System of Preferences Certificate of Origin Form A,
42 Fed. Reg. 5,041, 5,041 (U.S. Customs Serv. Jan. 27, 1977) (emphasis added). In Treasury
Decision 77-36, Customs explained as follows:
[T]o make it clear that the failure to properly place the symbol “A” on the entry
document does not preclude the importer or consignee from filing the Certificate
of the Origin subsequent to the time of entry in accordance with § 10.112 of the
Customs Regulations, it has been determined that the late filing of the certificate
in accordance with that section should constitute the written claim for duty-free
entry.
Id. Thus, Customs expressly recognized that an initial written claim for the GSP preference
could be made after entry, and at any time before the liquidation of the entry becomes final,
pursuant to 19 C.F.R. § 10.112, through the filing of a GSP Certificate of Origin. Section 10.112
of the Customs Regulations read then as it does today, not having been amended since the initial
promulgation in 1974.4
4
T.D. 74-227, 39 Fed. Reg. 32,013, 32,015 (U.S. Customs Serv. Sept. 4, 1974). Then, as
now, the regulation provided, in pertinent part, as follows:
10.112 Filing free entry documents or reduced duty documents after entry.
Whenever a free entry or a reduced duty document, form, or statement
required to be filed in connection with the entry is not filed at the time of the entry
or within the period for which a bond was filed for its production, but failure to
file it was not due to willful negligence or fraudulent intent, such document, form,
(continued…)
Court No. 15-00268 Page 10
In Treasury Decision 94-47, Customs again amended § 10.172, placing it in essentially its
current form. T.D. 94-47, Elimination of Certain Documentation Requirements for Articles
Entered Under Various Special Tariff Treatment Programs and Provisions, 59 Fed. Reg. 25,563
(U.S. Customs Serv. May 17, 1994). In T.D. 94-47, Customs deleted the last sentence in the
provision, i.e., the sentence Treasury Decision 77-36 had added to the end, but it left in place the
other change made at that time, i.e., the introductory phrase, “If duty-free treatment is claimed at
the time of entry . . . .” See id., 59 Fed. Reg. at 25,569. Customs explained that by promulgating
Treasury Decision 94-47 it was “removing certain documentation requirements relating to the
entry of articles claimed to be entitled to a partial duty exemption or duty-free treatment under
various special tariff provisions or programs,” including “the Generalized System of
Preferences.” Id., 59 Fed. Reg. at 25,563. Customs explained, further, that “[t]he amendments
reduce regulatory procedures and paperwork and thus facilitate the entry process for both the
public and Customs without affecting the ability of Customs to ensure compliance with the basic
legal requirements under these provisions and programs.” Id. Nothing in Treasury Decision
94-47 provides or even suggests that in promulgating the 1994 amendment Customs intended to
make GSP requirements more stringent. To the contrary, the expressed intent was to relax a
regulatory requirement by providing that, in the ordinary instance, importers and consignees
were required to provide a GSP Certificate of Origin only if specifically requested to do so by
Customs. See id., 59 Fed. Reg. at 25,569. For these reasons, it would be a mistake to interpret
(continued…)
or statement may be filed at any time prior to liquidation of the entry or, if the
entry was liquidated, before the liquidation becomes final.
Court No. 15-00268 Page 11
T.D. 94-47 as having eliminated an importer’s right to make an initial GSP claim at any time
before the liquidation of the entry becomes final.
2. Defendant’s Argument Mistakenly Relies on 19 C.F.R. § 10.173(a)(2)
In arguing that the Customs decisions made upon liquidation were not the proper subjects
of a protest in this case, defendant also relies on 19 C.F.R § 10.173(a)(2), which provides that
“[i]n a case involving merchandise covered by a formal entry which is wholly the growth,
product, or manufacture of a single beneficiary developing country, a statement to that effect
shall be included on the commercial invoice . . . .” Under defendant’s theory, failure to present
an invoice containing such a statement at entry disqualifies the shipment from GSP treatment.
See Def.’s Mem. 4-5. Defendant’s citation of § 10.173(a)(2) is unconvincing. Even were the
court to assume that this provision applies to Zojirushi’s merchandise, which is not clear from
the submissions, the court would not conclude that Zojirushi made no protest claim recognized
by 19 U.S.C. § 1514(a). The cited regulation does not state the consequence of failure to provide
the statement on the invoice, nor does it provide that failure to provide the statement on the
invoice at the time of entry forever precludes GSP duty-free treatment. Moreover, defendant
fails to explain why 19 C.F.R. § 10.112, when interpreted consistently with the regulatory history
the court discussed previously, would not allow a commercial invoice containing the required
notation to be submitted at any time up until the liquidation of the entry becomes final. In that
regard, defendant interprets § 10.112 too narrowly, arguing that it provides only for filing of
documents supporting a GSP claim and does not cure the failure to make a GSP claim at the time
of entry. Id. at 10-11. Defendant’s interpretation contradicts the interpretation of § 10.112
Customs itself adopted and effectuated in amending its regulations through the promulgation of
T.D. 77-36.
Court No. 15-00268 Page 12
3. Defendant’s Construction of 19 U.S.C. § 1514(a) Relies on Inapposite Judicial
Decisions
Further to its argument that Zojirushi had no right to protest the four liquidations at issue
in this case, defendant maintains that because Customs was not presented with a claim for GSP
treatment at entry, Customs could have made no decision upon liquidation as to whether GSP
would have been available and, therefore, could not have made a decision that could be protested
according to 19 U.S.C. § 1514(a). Id. at 5.
The interpretation of § 1514(a) defendant advances is not the subject of an agency rule or
regulation. Therefore, the court does not accord it the level of deference defined in Chevron v.
Nat’l Resources Def. Council, 467 U.S. 837 (1984). However, defendant’s interpretation of
§ 1514(a) is parallel to the interpretation of § 1514(a) Customs adopted in Headquarters Ruling
H193959 (July 30, 2012), which the port director cited in rejecting Zojirushi’s protest. The court
reviews this interpretation according to the level of deference the Supreme Court defined in
United States v. Mead, 533 U.S. 218 (2001). Under that level of deference, the agency’s
interpretation deserves “respect proportional to its ‘power to persuade.’” Id. at 220 (quoting
Skidmore v. Swift, 323 U.S. 134 (1944)).
Mead deference will not save the interpretation of 19 U.S.C. § 1514(a) as set forth in the
Headquarters Ruling, which bases its analysis of that statute chiefly on misinterpretations of two
decisions of the Court of Appeals for the Federal Circuit (“Court of Appeals”), Xerox Corp. v.
United States, 423 F.3d 1356 (Fed. Cir. 2005), and Corrpro Companies, Inc. v. United States,
433 F.3d 1360 (Fed. Cir. 2006). Further to its argument for the principle that the GSP preference
may not be raised for the first time in a protest (an issue that was not the subject of
HQ H193959), defendant also relies on these two decisions in support of its motion to dismiss.
Def.’s Mem. at 5-7.
Court No. 15-00268 Page 13
Xerox and Corrpro are not on point. Each case was decided expressly on the basis of
19 U.S.C. § 1520(d), which implemented a provision of the North American Free Trade
Agreement (“NAFTA”) allowing post-importation claims for the NAFTA duty preference to be
filed up to one year following importation, provided a NAFTA certificate of origin is submitted
within that period. Both Xerox and Corrpro involved situations in which the claim for the
NAFTA preference was not filed within the statutory one-year period. The Court of Appeals
concluded that where such a claim is not filed within the statutory period, an importer may not
resort to a protest of the liquidation in an attempt to defeat the statutory time limitation and held,
therefore, that the liquidation is not a protestable decision. Defendant errs in interpreting the
holdings in these cases to apply to the case at bar, as demonstrated by the following excerpt from
the opinion in Xerox:
By holding as we do, we do not suggest that liquidation by Customs of goods ‘‘as
entered’’ can never give rise to a protestable decision—that by liquidating goods
‘‘as entered,’’ Customs necessarily will not engage in the sort of decision-making
process identified by U.S. Shoe [Corp. v. United States, 114 F.3d 1564, 1569
(Fed. Cir. 1997)]. Indeed, the government at oral argument conceded that Xerox
might very well have the right to protest the liquidation of its goods ‘‘as entered,’’
were it not for the rules governing the post-importation claims for preferential
treatment under NAFTA. But hypotheticals aside, the rules governing post-
importation NAFTA claims provide the exact context from which this case arises.
Our decision thus turns on the rule of NAFTA and of 19 U.S.C. § 1520(d) that an
importer must make a post-importation claim for preferential treatment within
one year of entry.
Xerox, 423 F.3d at 1363 (emphasis added).5 GSP claims are not affected by the limitation in
19 U.S.C. § 1520(d), and nothing in the GSP statute or the applicable regulations requires a GSP
5
The Court of Appeals for the Federal Circuit subsequently held in Ford Motor Co. v.
United States, 635 F.3d 550, 557 (Fed. Cir. 2011), that the Court of International Trade had
jurisdiction over an action to contest a denial of a protest seeking reliquidation of an entry to
obtain the NAFTA duty preference. In that case, plaintiff Ford Motor Co. had filed its post-
(continued…)
Court No. 15-00268 Page 14
claim to be made at the time of entry or precludes a GSP claim that is made at any time before
the liquidation of the entry becomes final.
In further support of its argument that Zojirushi’s protest did not contest a decision
subject to protest under 19 U.S.C. § 1514(a), defendant cites various decisions of this Court,
Def.’s Mem. 7, which also are inapposite. One of the cases relied upon, Padilla v. United States,
33 CIT 1515, 659 F. Supp. 2d 1290 (2009) involved an invalid attempt to protest liquidations of
entries that were made subject to 122.88% antidumping duties pursuant to instructions from the
U.S. Department of Commerce. This Court held that the importer could not protest the
assessment of the antidumping duties upon liquidation, following the long-standing principle, as
held in Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994), that
ministerial assessments of antidumping duties upon liquidation by Customs are not protestable.
Padilla, 33 CIT at 1518, 659 F. Supp. 2d at 1293. Defendant also relies, incorrectly, on Sunshine
Int’l Trading, Inc. v. United States, 37 CIT __, Slip Op. 13-25 at 7 (Feb. 26, 2013), in which an
importer attempted to protest an unliquidated entry for which the plaintiff had argued,
incorrectly, that CBP’s rejection of the entry papers was an “exclusion” of the merchandise
protestable under 19 U.S.C. § 1514(a).6
(continued…)
importation NAFTA claims, but not the required NAFTA Certificates of Origin, within the
statutory one-year period set forth in 19 U.S.C. § 1520(d). Id. at 552. The Court of Appeals
reasoned that the filing of the NAFTA Certificate of Origin was not a jurisdictional requirement.
Id. at 557.
6
Defendant also cites other case law in support of its incorrect interpretations of the
Customs regulations. See Def.’s Mem. 10-12. None of these cases is on point.
Court No. 15-00268 Page 15
The implication of the defendant’s interpretation of § 1514(a), and of Xerox and Corrpro,
is that an importer, as a general matter, would be unable to protest “no-change” liquidations, i.e.,
“as entered” liquidations. However, as the Court of Appeals cautioned in Xerox, its ruling
should not be interpreted to support such a limitation on § 1514(a). To the contrary, no-change
liquidations are commonly protested, and the principle that they must be allowed to be protested
serves important purposes. For example, to avoid penalty liability, an importer may be required
to enter merchandise in accordance with a binding Customs tariff classification ruling even
though it may disagree with that ruling. The implication of defendant’s position is that an
importer in that position would be unable to bring a judicial challenge to the Customs
classification position, contrary to congressional intent underlying 19 U.S.C. § 1514(a) and
28 U.S.C. § 1581(a). The GSP program could serve as another example: if the entered tariff
classification is ineligible for the GSP preference but the importer, in a protest of the no-change
liquidation, advances a different classification position under which the GSP preference is
potentially available, defendant’s position would defeat GSP eligibility without a basis in the
statute or the regulations.
4. The Error in Defendant’s Construction of 19 U.S.C. § 1514(a) Is Further
Demonstrated by a Clarifying Amendment Enacted in 2004
In summary, the limitation on protests that defendant incorrectly gleans from Xerox and
Corrpro, i.e., that duty-preference claims in general cannot be presented for the first time in
protests, is based on a misinterpretation of the holdings in those cases. That defendant’s
proffered limitation on protestable decisions is incorrect is further demonstrated by a clarifying
amendment Congress made to 19 U.S.C. § 1514(a) in 2004. In the Miscellaneous Trade and
Technical Corrections Act of 2004, Pub. L. 108-429, Title II, § 2105, 118 Stat. 2598, Congress
repealed section 520(c) of the Tariff Act, 19 U.S.C. § 1520(c), clarified the scope of protestable
Court No. 15-00268 Page 16
decisions as set forth in § 1514(a), and extended the protest period from the then-applicable
90 days to the present 180 days. The repealed § 1520(c), in paragraph (1), had allowed an
importer to obtain reliquidation of an entry to correct:
a clerical error, mistake of fact, or other inadvertence, . . . not amounting to an
error in the construction of a law, adverse to the importer and manifest from the
record or established by documentary evidence, in any entry, liquidation, or other
customs transaction, when the error, mistake, or inadvertence is brought to the
attention of the Customs Service within one year after the date of liquidation or
exaction . . . .
19 U.S.C. § 1520(c)(1) (2000). Under the tariff law as it existed prior to the 2004 amendments,
an importer could protest a liquidation (including a “no-change” liquidation) of an entry within
90 days of liquidation. However, if missing the 90-day deadline, the importer still could obtain
reliquidation of the entry by making a “section 520(c) claim,” provided the claim conformed to
the more limited circumstances stated in 19 U.S.C. § 1520(c)(1). The section 520(c) procedure
commonly was used, for example, where the importer made a mistake of fact or other
inadvertent error at the time of entering merchandise that, but for the error, would have qualified
for more favorable tariff treatment. The then-existing limitation that the claim could not arise
from an error or inadvertence “amounting to an error in the construction of a law,” which
Congress eliminated in the 2004 amendments, ensured that a section 520(c) claim could not be
used to extend the 90-day protest period in most of the common protest situations.
The 2004 amendments eliminated uncertainties that had long arisen over the meaning of
the phrase “not amounting to an error in the construction of a law” while still allowing
corrections in liquidations to be made after 90 days, albeit during a shortened, i.e., 180-day,
period instead of a one-year period. Because of the concurrent clarifying change that Congress
made to § 1514(a), it would be incorrect to interpret the repeal of 19 U.S.C. § 1520(c) to limit the
authority of Customs to correct, through the protest procedure, clerical errors, mistakes of fact,
Court No. 15-00268 Page 17
and other inadvertences adverse to the importer that occur upon entry or liquidation.7 Under the
Tariff Act, at least in the current form (i.e., the form in which the statute applied in this case), it
no longer matters whether or not the error or inadvertence sought to be corrected through a
protest amounts to an error in the construction of a law; nor does it matter whether the
inadvertence was made by the importer or by Customs.8 This is not to suggest that, but for the
2004 amendments, Zojirushi would have been unable to protest the liquidations of its four entries
but only to point out that the clarifying change further demonstrates that defendant’s overly
narrow construction of § 1514(a) is incorrect.
In summary, on the jurisdictional facts presented, the court must conclude that Zojirushi
was granted the right to protest the “as entered” liquidations of its four entries by 19 U.S.C.
§ 1514(a).
B. Protest No. 2704-14-101380 Was Not “Denied” for Purposes of 19 U.S.C. § 1515(a) and (b)
Because, as the court has concluded, Zojirushi’s protesting of the liquidations of its four
entries was within the ambit of 19 U.S.C. § 1514(a), the provisions of 19 U.S.C. § 1515 apply to
Protest No. 2704-14-101380. As a general matter, § 1515 provides that Customs, within two
years from the date of filing of a protest in accordance with 19 U.S.C. § 1514, “shall review the
7
In 2011, Customs issued a final rule on, inter alia, the changes the Miscellaneous Trade
and Technical Corrections Act of 2004 made to sections 514 and 520 of the Tariff Act.
Technical Corrections: Matters Subject to Protest and Various Protest Time Limits, 76 Fed. Reg.
2,573 (U.S. Customs and Border Prot. Jan. 14, 2011). The preamble to the rule demonstrates
that Customs viewed the addition to section 514 as a clarification. See id., 76 Fed. Reg. at 2,573.
8
While it does not matter for purposes of this litigation, the court notes that the decisions
in Xerox Corp. v. United States, 423 F.3d 1356 (Fed. Cir. 2005) and Corrpro Companies, Inc. v.
United States, 433 F.3d 1360 (Fed. Cir. 2006) involved the prior version of 19 U.S.C. § 1514(a),
i.e., the version in effect prior to the 2004 clarifying amendment to that subsection. The 2004
amendments were effective December 18, 2004. Miscellaneous Trade and Technical
Corrections Act of 2004, Pub. L. 108-429, Title II, § 2108, 118 Stat. 2598.
Court No. 15-00268 Page 18
protest and shall allow or deny such protest in whole or in part.” 19 U.S.C. § 1515(a). With
respect to the two-year time limitation, courts have established the rule that where there has not
been a protest allowance or denial after the close of the two year period, and where the
“accelerated disposition” procedure of 19 U.S.C. § 1515(b) has not been invoked, the protest
remains pending indefinitely; it is neither deemed allowed nor deemed denied. See Hitachi
Home Elecs. (America) Inc. v. United States, 661 F.3d 1343 (Fed. Cir. 2011) (“Hitachi”). The
basis for this rule is § 1515(b), under which a protesting party may request accelerated
disposition by sending a request “by certified or registered mail to the appropriate customs
officer any time concurrent with or following the filing of such protest.” 19 U.S.C. § 1515(b);
see 19 C.F.R. § 174.22(a). If a protest allowance or denial does not occur within 30 days
following such mailing, the protest “shall be deemed denied” on the thirtieth day following the
mailing “[f]or purposes of section 1581 of Title 28.” Id.; see 19 C.F.R. § 174.22(d). Under the
accelerated disposition provision, a protesting party may obtain through § 1515(b) a decision of
the very type Zojirushi claims it is owed in this case.
Clearly, the action Customs took on Protest No. 2704-14-101380 was not an allowance.
If it is, instead, deemed to be a denial, Zojirushi could have obtained judicial review related to its
protest only by filing a summons to contest that decision according to 19 U.S.C. § 1514 and
28 U.S.C. § 1581(a). Zojirushi’s complaint pleads no facts indicating that Zojirushi brought an
action to contest the Customs decision on its protest within the time period that applies to an
action to contest a protest denial. According to 28 U.S.C. § 2636(a)(1), that time period is
180 days from the date of mailing of the Customs decision on the protest (in this case,
apparently, December 3, 2014). Therefore, an action to contest a protest “denial” would have
been timely only if commenced by June 1, 2015. Because this action was commenced on
Court No. 15-00268 Page 19
September 25, 2015, it would be time-barred were it to be construed as an action to contest a
protest “denial” made under 19 U.S.C. § 1515.
In deciding the question of jurisdiction this case poses, therefore, the court must decide
whether to deem the action taken by Customs in rejecting the protest to be a “denial” of the
protest within the meaning of 19 U.S.C. § 1515(a). It could be argued that under 19 U.S.C.
§ 1515(a), where a protest challenges decisions that are subject to challenge under 19 U.S.C.
§ 1514(a), any final action disposing of that protest that is not an allowance, including a
“rejection,” should be deemed a denial because it was a final decision. This argument would
hold that § 1515(a) presents Customs only three options: it may allow a protest (in whole or in
part), it may deny it (in whole or in part), or it may take no action (in which case the protest
remains pending indefinitely, subject to a request for accelerated disposition). According to this
argument, because Customs did take an action intended to dispose of the protest, the protest
cannot be considered to remain pending and hence must be considered to be denied. As
persuasive as this argument might appear to be at first glance, the court concludes to the
contrary. Congress established, in 19 U.S.C. § 1515(a), procedural requirements for the denial of
a protest that Customs did not follow, and did not intend to follow, in this case.
The nature of the action Customs took is demonstrated by the protest form. The port
director filled out Block 18 of the form (CBP Form 19), which contains four boxes, labeled
“Approved,” “Rejected as non-protestable,” “Denied in full for the reason checked,” and
“Denied in part for the reason checked,” followed by three more boxes (“Untimely filed,” “See
attached protest review decision,” and “Other, namely”). Significantly, Customs checked the
box labeled “Rejected as non-protestable” and left blank the boxes for “Denied in full . . .” and
“Denied in part . . . .” See Compl. at Ex. A. The document does not designate the decision on
Court No. 15-00268 Page 20
Protest No. 2704-14-101380 as a protest denial and, to the contrary, informed Zojirushi that
Customs did not consider the action to be a denial for purposes of 19 U.S.C. § 1515(a).9
Section 515(a) of the Tariff Act directs that “[n]otice of the denial of any protest shall be
mailed in the form and manner prescribed by the Secretary” and “shall include a statement of the
reasons for the denial, as well as a statement informing the protesting party of his right to file a
civil action contesting the denial of a protest under section 1514 of this title.” 19 U.S.C.
§ 1515(a) (emphasis added). In so directing, Congress recognized the importance of the
agency’s notifying a protesting party of a protest denial and of the party’s right to obtain judicial
review of a protest denial under 19 U.S.C. § 1514 and the related provision, 28 U.S.C. § 1581(a).
In this case, Customs did not notify the protesting party of a protest denial. Customs did not
provide Zojirushi “a statement of the reasons for the denial” and instead communicated that there
was no denial, citing only a ruling and a statement informing Zojirushi that there was no right to
protest. Nor did Customs inform Zojirushi of the right to obtain judicial review under 19 U.S.C.
§ 1514.10 Instead, all of the actions Customs took communicated to the importer that no valid
9
In addition, Zojirushi made, in connection with its protest, an application for further
review. Compl. at Ex. A; see 19 U.S.C. § 1515(a). Where a protesting party files with Customs
an application for further review of a protest filed under 19 U.S.C. § 1514, the port director is
required by 19 U.S.C. § 1515(a) to allow or deny that application within 30 days of the filing of
the application. The port director did not follow this procedure. While the Customs decision, as
set forth on the Form 19, does not provide a reason for his not doing so, it fairly can be surmised
that the port director considered further review to be inapplicable due to the action being taken
on the protest itself, i.e., the rejection.
10
The CBP Form 19 used in this case contains boilerplate language informing a
protesting party that “[i]f your protest is denied, in whole or in part, and you wish to CONTEST
the denial, you may do so by bringing a civil action in the U.S. Court of International Trade
within 180 days after the date of mailing of Notice of Denial.” Compl. at Ex. A. Because the
port director, in completing Block 17 of the form, left unchecked the boxes for “Denied in
full . . .” and “Denied in part . . .” and instead checked the box labeled “Rejected as non-
(continued…)
Court No. 15-00268 Page 21
summons could be filed to obtain, according to 19 U.S.C. § 1514, judicial review of the decision
by which Customs disposed of the protest. Because Customs did not follow (and did not intend
to follow) the specific procedures Congress established for denying a protest, it would be
incorrect for the court to “deem” the action Customs took, i.e., a “rejection” of a protest as “non-
protestable,” to be a protest denial for purposes of 19 U.S.C. § 1515(a). In other provisions of
the Tariff Act, Congress provided for deemed denials of protests; see, e.g., 19 U.S.C.
§§ 1499(c)(5)(B), 1515(b). Congress did not do so in § 1515(a).
C. Because the Statutory “Accelerated Disposition” Procedure Is, and Has Been, Available to
Zojirushi, the Court Lacks Jurisdiction under 28 U.S.C. § 1581(i)(4)
Where jurisdiction under one of the provisions set forth in 28 U.S.C. § 1581(a)
through (h) is available and will provide an adequate remedy, the court may not exercise
jurisdiction under the “residual” jurisdiction provision of § 1581(i)(4). Miller & Co., 824 F.2d
at 963. Specifically, this Court may not exercise residual jurisdiction over an action that could
have been brought under the jurisdictional grant provided in 28 U.S.C. § 1581(a). Int’l Customs
Prods. v. United States, 467 F.3d 1324 (Fed. Cir. 2006).
Zojirushi may obtain jurisdiction under 28 U.S.C. § 1581(a) through the accelerated
disposition procedure set forth in 19 U.S.C. § 1515(b). A protesting party is entitled to invoke
that procedure whenever “a protest has not been allowed or denied in whole or in part.”
19 U.S.C. § 1515(b). Because the action Customs took neither allowed nor denied Protest No.
(continued…)
protestable,” the form did not serve to notify Zojirushi of the right to judicial review under
19 U.S.C. § 1514.
Court No. 15-00268 Page 22
2704-14-101380, that situation exists in this case.11 Although Customs disposed of the protest
through a final decision, it was not a final decision of a type recognized by § 1515(b) as
sufficient to terminate a protesting party’s right to accelerated disposition. The procedure of
§ 1515(b) has been available to Zojirushi since the time it filed its protest on September 16,
2014. Were that procedure to be invoked now, any inaction by Customs, or any action Customs
takes in response within 30 days of the request, other than an allowance of the protest in the
entirety, will result in the opportunity to obtain judicial review under the jurisdictional grant of
28 U.S.C. § 1581(a). See Hitachi, 661 F.3d at 1350-51.
Were Zojirushi to prevail in an action brought under the jurisdiction provided in
28 U.S.C. § 1581(a), it could avail itself of an adequate remedy. The essence of Zojirushi’s
claim, as stated in Counts I and III of the complaint, is that Customs acted unlawfully in rejecting
its protest rather than allowing it or denying it. Congress addressed this subject matter by
enacting 19 U.S.C. § 1515(b).
In Count II of the complaint, Zojirushi addresses the August 11, 2014 Customs internal
guidance document, “Guidance: Post-Importation Claims for Preferential Tariff Treatment,”
which Zojirushi attaches as Exhibit B to the complaint, and Customs Headquarters Ruling
H193959, the ruling the port director cited in completing Block 18 of the protest form. Citing
the notice-and-comment rulemaking requirements of the APA, 5 U.S.C. § 553, Zojirushi presents
legal arguments as to why it considers the guidance document and the ruling to have been issued
contrary to law. Compl. ¶¶ 23-27. Zojirushi further states in Count II that “[t]o the extent
Customs’ refusal to review and decide Long Beach Protest 2704-14-101380 is predicated, in
11
The complaint pleads no facts from which the court could conclude that Zojirushi
already has requested accelerated disposition according to 19 U.S.C. § 1515(b).
Court No. 15-00268 Page 23
whole or in part, on complaint Exhibit B [i.e., the guidance document] and/or Customs
Headquarters Ruling [H]193959, said Customs Headquarters ruling must be held unlawful and
set aside as agency action taken without observance of procedure required by law.” Id. ¶ 28.
The court construes Count II as intertwined with Zojirushi’s challenge to the action Customs
took on the protest rather than as a separate claim independent of that challenge.
The court does not construe Count III of the complaint to state a separate claim but
instead construes it as additional grounds. In brief summary, plaintiff contends in Count III that
to the extent the guidance document “purports to repeal or limit 19 C.F.R. § 10.112” it was
issued in violation of the APA. Id. ¶ 35. As it did in Count II, Zojirushi presents in Count III
grounds as to why it considers the rejection of the protest to have been contrary to law, stating
that “[t]o the extent Customs refused to review Long Beach Protest 2704-14-101380 or to allow
or deny it, such action is without observance of procedure required by law and must be set aside
as unlawful.” Id. ¶ 38. This is the same claim as pled in Count I, in which Zojirushi also states
that CBP’s refusal to allow or deny the protest was unlawful, contending that the court is
directed by the APA, 5 U.S.C. § 706(1), to compel agency action that is unlawfully withheld or
unreasonably delayed. See Compl. ¶ 19.
In summary, Zojirushi’s claim, when properly construed, is one for which Zojirushi
potentially could obtain an adequate remedy upon prevailing in a future action brought to contest
a denial of its protest, were such a denial to occur.
III. CONCLUSION
The decisions contested in Protest No. 2704-14-101380 are within the class of decisions
that may be protested according to 19 U.S.C. § 1514(a). Customs issued a decision disposing of
that protest, but that decision does not qualify as an allowance or a denial of the protest for
purposes of 19 U.S.C. § 1515. Under subsection (b) of § 1515, only an allowance or denial of a
Court No. 15-00268 Page 24
protest, in whole or in part, suffices to foreclose the opportunity provided thereunder for
accelerated disposition. According to the jurisdictional facts presented here, that opportunity has
existed since the filing of the protest and still exists. Therefore, the court may not exercise
jurisdiction over this action according to the residual jurisdiction granted in 28 U.S.C.
§ 1581(i)(4). The court will enter judgment dismissing this action for lack of subject matter
jurisdiction.
___________________________
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Chief Judge
Dated: August 4, 2016
New York, New York
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