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J-S09038-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. TIMOTHY L. COTTLE, Appellant No. 3033 EDA 2015 Appeal from the PCRA Order September 11, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0008459-2009 BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED MARCH 15, 2017 Appellant, Timothy L. Cottle, appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm. We take the relevant facts and procedural history of this case from our independent review of the certified record. On February 11, 2011, a jury convicted Appellant of aggravated assault and simple assault.1 The conviction stems from Appellant’s June 2009 assault of his first cousin, Charvelleite Witcher Williams, in the basement of his father’s home. During the attack, Appellant grabbed Ms. Williams by the neck, threatened to kill ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2702(a) and 2701(a), respectively. J-S09038-17 her, beat her, and bit her ring finger; she sustained injuries to her face, teeth, eyes, forehead, and finger as a result. On March 25, 2011, the trial court sentenced Appellant to a term of not less ten nor more than twenty years’ imprisonment. This Court affirmed Appellant’s judgment of sentence on May 16, 2012, and our Supreme Court denied his petition for allowance of appeal on November 9, 2012. (See Commonwealth v. Cottle, 50 A.3d 243 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 57 A.3d 66 (Pa. 2012)). On March 29, 2013, Appellant filed a timely pro se PCRA petition. Appointed counsel filed an amended petition on February 8, 2015. The Commonwealth filed a motion to dismiss the petition, and the PCRA court issued notice of its intent to dismiss it on August 7, 2015. See Pa.R.Crim.P. 907(1). The court entered its order dismissing the petition on September 11, 2015. This timely appeal followed.2 Appellant raises the following questions for our review: I. Whether the [PCRA] court erred in not granting relief on the PCRA petition alleging counsel was ineffective[?] II. Whether the [PCRA] court erred in denying the Appellant’s PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel’s ineffectiveness[?] ____________________________________________ 2 Appellant filed a concise statement of errors complained of on appeal on November 5, 2015, although the PCRA court did not order him to file one. The court entered an opinion on June 7, 2016. See Pa.R.A.P. 1925. -2- J-S09038-17 (Appellant’s Brief, at 8).3 Appellant’s issues on appeal challenge the effectiveness of trial counsel. Specifically, Appellant argues that counsel was ineffective for failing to hire a handwriting expert to testify regarding Ms. Williams’ diary. (See Appellant’s Brief, at 16-17). At trial, Ms. Williams testified that some of the entries in her diary pertaining to Appellant had been altered, and Appellant claims the implication of this testimony was that he had written the entries. (See id.; see also N.T. Trial, 2/09/11, at 136-40, 143-47, 167- 68, 173). Appellant also contends that counsel was ineffective for failing to seek a continuance when the Commonwealth advised that an additional witness, Kenneth Brown, would testify at trial. (See Appellant’s Brief, at 17- 19). Our standard of review is as follows: When reviewing the denial of a PCRA petition, we must determine whether the PCRA court’s order is supported by the record and free of legal error. Generally, we are bound by a PCRA court’s credibility determinations. However, with regard to a court’s legal conclusions, we apply a de novo standard. Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citation and quotation marks omitted). Furthermore, ____________________________________________ 3 We have re-ordered Appellant’s issues for ease of disposition. The first issue contains two sub-issues, the first challenging counsel’s failure to hire a handwriting expert, and the second challenging her failure to request a continuance. (See Appellant’s Brief, at 16-19). -3- J-S09038-17 In order to be eligible for PCRA relief, the petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found in Section 9543(a)(2), which includes the ineffective assistance of counsel. 42 Pa.C.S. § 9543(a)(2)(i). It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him. To prevail on an ineffectiveness claim, the petitioner has the burden to prove that (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance. The failure to satisfy any one of the prongs will cause the entire claim to fail. Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa. Super. 2016) (case citations and quotation marks omitted). Regarding the prejudice prong, a petitioner must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s action or inaction. . . . We need not analyze the prongs of an ineffectiveness claim in any particular order. Rather, we may discuss first any prong that an appellant cannot satisfy under the prevailing law and the applicable facts and circumstances of the case. Finally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Johnson, supra at 1272 (citations omitted). In the first sub-issue, Appellant claims that counsel should have secured a handwriting expert to testify regarding Ms. Williams’ diary, because such testimony would have rebutted the implication that Appellant altered some of the entries. (See Appellant’s Brief, at 16-17). This argument does not merit relief. -4- J-S09038-17 Where a claim is made of counsel’s ineffectiveness for failing to call witnesses, it is the appellant’s burden to show that the witness existed and was available; counsel was aware of, or had a duty to know of the witness; the witness was willing and able to appear; and the proposed testimony was necessary in order to avoid prejudice to the appellant. The mere failure to obtain an expert rebuttal witness is not ineffectiveness. Appellant must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant’s cause. . . . Commonwealth v. Treiber, 121 A.3d 435, 454 (Pa. 2015) (citation omitted). Here, Appellant has not even identified a handwriting expert who was willing and available to appear at trial to testify favorably on his behalf regarding the diary entries. (See Appellant’s Brief, at 16-17; Amended PCRA petition, 2/08/15, at 9-10). Further, Appellant failed to establish that such testimony would have altered the outcome of his trial where Ms. Williams testified in detail about the violent attack, which she reported immediately to police, during which Appellant threatened to kill her, attempted to break her neck, slammed her head into a utility sink, and bit her ring finger. (See N.T. Trial, 2/09/11, at 42-47). Thus, we reject Appellant’s claim that counsel was ineffective for failing to call an expert handwriting witness. See Treiber, supra at 454; Johnson, supra at 1272. Appellant next alleges that counsel was ineffective for failing to request a continuance when the Commonwealth advised that it would call additional witness, Kenneth Brown. (See Appellant’s Brief, at 17-19). Appellant claims that a continuance was necessary in order for counsel to -5- J-S09038-17 prepare adequately for Mr. Brown’s testimony, and that “[t]he failure to request such a continuance amounts to a complete lack of due diligence in representing Appellant at trial.” (Id. at 18). This argument does not merit relief. The record reflects that, before trial, defense counsel spoke with Mr. Brown on the telephone about his recollection of events on the day of the assault on Ms. Williams. (See N.T. Trial, 2/09/11, at 7-8, 10-11). Although the Commonwealth did not initially plan to call Mr. Brown as a witness because it had not made contact with him, it decided to call him after speaking with him on the evening before trial. (See id. at 8-10). On the morning of trial, the Commonwealth provided defense counsel with notes of its conversation with Mr. Brown, and made her aware of the anticipated substance of his testimony. (See id. at 7, 9). Defense counsel informed the court that there were discrepancies between what Mr. Brown had reported to her, and what he reported to the Commonwealth, and requested that the court preclude his testimony because she had not had sufficient time to prepare for it. (See id. at 7-8, 11-12). The court denied the request, stated that counsel could question Mr. Brown about any inconsistencies, and that it was for the jury to determine his credibility. (See id. at 11-13). Defense counsel then vigorously cross-examined Mr. Brown regarding the alleged discrepancies. (See id. at 191-93). After review of the record, we discern no prejudice to Appellant as a result of defense counsel’s decision not to seek a continuance. See -6- J-S09038-17 Johnson, supra at 1272. The record demonstrates that counsel did challenge Mr. Brown’s testimony, the court was not amenable to granting a continuance request, and that counsel was able to cross-examine Brown effectively regarding any discrepancies. Thus, Appellant’s claim that counsel was ineffective for failing to request a continuance lacks merit. Finally, we address Appellant’s contention that the PCRA court erred in denying his petition without holding an evidentiary hearing on his ineffective assistance of counsel claims. (See Appellant’s Brief, at 14-15). This issue merits no relief. “[T]he right to an evidentiary hearing on a post-conviction petition is not absolute.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citation omitted). The PCRA court may dismiss a petition without a hearing when it determines “that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings[.]” Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.” Johnson, supra at 1273 (citation omitted). Instantly, Appellant has failed to raise any genuine issue of fact that, if resolved in his favor, would entitle him to relief on his ineffectiveness claims. We discern no abuse of discretion in the PCRA court’s dismissal of his -7- J-S09038-17 petition without a hearing. See id. Therefore, Appellant’s final issue does not merit relief. Accordingly, we affirm the order of the PCRA court. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/15/2017 -8-	{ "pile_set_name": "FreeLaw" }
94 S.E.2d 594 (1956) 244 N.C. 598 Julia ARMSTRONG v. Hyman H. HOWARD, Melvin D. Howard, Robert McCray and Dock Kelly Smith. No. 241. Supreme Court of North Carolina. October 10, 1956. 595 Robert A. Farris, Wilson, and Lyon & Lyon, Smithfield, for plaintiff appellant. Lucas, Rand & Rose, Wilson, for defendants McCray and Smith, appellees. PER CURIAM. The rules promulgated by this Court are intended to aid in the performance of its duties and to assure to litigants that consideration of the asserted errors which the parties have a right to expect of the Court. The rule, 19(3), which requires the grouping and assignment of errors has been repeatedly declared to require the asserted error to be clearly and distinctly set out in the assignment so that the Court shall not be compelled to go beyond the assignment itself to ascertain the precise question involved. A voyage of discovery through the records to pinpoint the asserted error should not be expected. Typical of plaintiff's assignment of error is: "Exceptions Nine, Ten and Eleven have reference to the failure of the court to explain the law as applied to the evidence in this case as indicated. (R pp 59 and 60)". This does not meet the requirements of the rule. Thompson v. Seaboard Air Line R. Co., 147 N.C. 412, 61 S.E. 286, 287, imposes the duty upon appellant in this language:"` * * always the very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is. The assignment must be so specific that the court is given some real aid and a voyage of discovery through an often voluminous record not rendered necessary.' " This interpretation of the rule has been repeatedly applied and adhered to. Wheeler v. Cole, 164 N.C. 378, 80 S. E. 241; Register v. Tidewater Power Co., 165 N.C. 234, 81 S.E. 326; Carter v. Reaves, 167 N.C. 131, 83 S.E. 248; Rogers v. Jones, 172 N.C. 156, 90 S.E. 117; Myrose v. Swain, 172 N.C. 223, 90 S.E. 118; Byrd v. Southerland, 186 N.C. 384, 119 S.E. 2; Cecil v. Snow Lumber Co., 197 N.C. 81, 147 S.E. 735; In re Will of Beard, 202 N.C. 661., 163 S.E. 748; Greene v. Dishman, 202 N.C. 811, 164 S.E. 342; State v. Bittings, 206 N.C. 798, 175 S.E. 299; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Suits v. Old Equity Life *596 Insurance Co., 241 N.C. 483, 85 S.E.2d 602. Notwithstanding the failure to comply with the rules, we have examined the record and find no error. The appeal is Dismissed.	{ "pile_set_name": "FreeLaw" }
404 F.3d 834 UNITED STATES of America, Plaintiff-Appellee,v.Gay Sanford WASHINGTON, Defendant-Appellant. No. 03-4867. United States Court of Appeals, Fourth Circuit. Argued: October 26, 2004. Decided: April 15, 2005. ARGUED: Jonathan David Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Joshua Clarke Hanks, Assistant United States Attorney, Office of the United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, Edward H. Weis, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellee. Before LUTTIG, KING, and DUNCAN, Circuit Judges. Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN concurred. Judge LUTTIG wrote a dissenting opinion. KING, Circuit Judge: 1 Gay Sanford Washington appeals from the sentence imposed upon him in the Southern District of West Virginia after his plea of guilty to a single offense of felonious possession of a firearm, in contravention of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Washington contends that he was sentenced erroneously when the district court determined that his prior conviction for breaking and entering constituted a "crime of violence" under United States Sentencing Guidelines Manual §§ 2K2.1(a)(4) and 4B1.2(a)(2) (2003), and enhanced his sentence accordingly. As explained below, we vacate Washington's sentence and remand for further proceedings consistent with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, ___ L.Ed.2d ___ (2005). I. 2 On April 1, 2003, Washington entered a plea of guilty to being a felon in possession of a firearm. The applicable provision of the Sentencing Guidelines, § 2K2.1(a), provides for a base offense level of 14, and for an enhanced base offense level of 20 when the defendant has been previously convicted of a "crime of violence." USSG § 2K2.1(a)(4). In 1996, Washington was convicted in Putnam County, West Virginia, of the state law felony of breaking and entering. See W. Va.Code § 61-3-12. Washington's initial Presentence Report ("PSR") revealed that his prior conviction was for breaking and entering the offices of a drug and violent crime task force, and it characterized the offense as a "crime of violence." The probation officer accordingly recommended that Washington's offense level be fixed at the enhanced level of 20. Washington objected, asserting to the probation officer that his prior offense was not a "crime of violence" under the Guideline, or under our decision in United States v. Harrison, 58 F.3d 115 (4th Cir.1995) (concluding that defendant's burglary of commercial building was not crime of violence). The probation officer accepted the objection and revised Washington's PSR accordingly, lowering his base offense level to 14. 3 At Washington's first sentencing hearing, on June 17, 2003, the Government objected to the PSR as revised. In objecting, the Government relied on § 4B1.2(a)(2) of the Guidelines, which provides that a "crime of violence" includes an offense which "is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk of physical injury to another."1 In support of this position, the Government contended that the circumstances of Washington's prior offense, the breaking and entering of a drug and violent crime task force, "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another," USSG § 4B1.2(a)(2), bringing it within the Guideline definition. 4 In conducting the hearing, the sentencing court posed a series of pertinent questions to counsel on the crime of violence issue, including questions as to the specifics of Washington's prior offense. It first inquired as to the title, function, and location of the Task Force whose offices were burglarized. In response, the Assistant United States Attorney represented to the court: 5 Your Honor, I believe . . . that the building that was broken into housed this particular Drug and Violent Crime Task Force. In that particular building rests a great deal of potential for violence. Not only does it house evidence, narcotics, weapons, it frequently has — I believe this particular office has surveillance equipment, security alarms. It is frequently manned at all hours of the day and night, although I don't believe it is routinely a 24-hour manned facility. I believe . . . that an individual who breaks into such an office certainly creates this other type of potential for risk of violent injury. . . . 6 (J.A. 61). The court inquired further as to the specifics of the offense, asking: "What else do you know about the circumstances of the break-in?" and "[y]ou don't know the hour of the break-in or the day?" (J.A. 62). The court then continued the sentencing hearing to a later date, directing the parties to brief both the issue of what material the court could consider in determining whether Washington's prior offense was a "crime of violence," and what specific conduct was at issue in the prior offense.2 The court also advised, "the government has the burden of proof on the matter." 7 On June 19, 2003, the Government filed a sentencing memorandum setting forth a variety of allegations regarding Washington's prior conviction. The memorandum advised that the crime was committed "[i]n the early morning hours of December 11, 1995," when the "defendant along with two accomplices broke into the office of the Midwestern Task Force by breaking a ground-level window." It also related, inter alia, that Washington and his "two accomplices" had stolen firearms and several varieties of drugs. The Government attached the police report and criminal investigation report to its memorandum.3 8 The factual background of Washington's prior state conviction, as spelled out in the prosecution's sentencing memorandum, was not contained in or suggested by the indictment itself, which merely alleged in Count 1 that Washington "did unlawfully and feloniously break and enter a building of the City of Hurricane . . . occupied by the Midwestern Drug and Violent Crime Task Force with intent to . . . steal" Task Force "goods and property."4 Likewise, the plea materials of record in the state court proceeding provided no other details on the breaking and entering conviction. 9 At Washington's final sentencing hearing on August 29, 2003, the court applied the "crime of violence" enhancement and sentenced accordingly. In so ruling, the court looked to the provisions of § 4B1.2(a)(2), specifying that a "crime of violence" includes a crime that "involves conduct that presents a serious potential risk of physical injury to another," and to the accompanying Application Note. Because the break-in underlying Washington's prior conviction was not of a dwelling, the court concluded that the earlier offense was not, in the abstract, a crime of violence. The court then made a two-tiered determination, characterized in the Statement of Reasons section of its Judgment Order as "findings of fact and conclusions of law" made by a "preponderance of the evidence." (J.A. 165) (emphasis added). It ruled that the conduct "expressly charged" in the indictment warranted the conclusion that "breaking and entering of a government-owned building to steal the goods and property of a drug and violent crime task force is conduct that, by its nature, presents a serious potential risk of physical injury to another." The court explained that conclusion as follows: 10 Based on common experience, it is reasonable to expect that quarters occupied by a drug and violent crime unit would contain both drugs and guns that are protected from theft; that, even if no one affiliated with the task force was present at the time of a breaking and entering into its quarters, one or more members or employees of the task force may show up there at any time of day or night in view of the oft-times clandestine and nocturnal nature of their work; and such persons would be armed. 11 The act of breaking and entering such a facility is a reckless, dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another. 12 (J.A. 166-67). Based on this assessment, the court fixed Washington's base offense level at the enhanced level of 20, applied a three-level reduction for acceptance of responsibility, for a final offense level of 17, and sentenced Washington to thirty months of imprisonment. II. 13 Washington has appealed his sentence, maintaining that the district court misapplied circuit precedent and the Guidelines in determining that his prior breaking and entering offense constituted a crime of violence. On appeal, he also contends that his sentence violated the Sixth Amendment, relying on Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). 14 Because Washington did not raise his Blakely claim in the district court, we review that contention for plain error only. See Fed.R.Crim.P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the district court."). In order for Washington to prevail under Rule 52(b), "there must be an `error' that is `plain' and that `affect[s] substantial rights.'" United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Moreover, because "Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals," we may exercise our discretion to recognize plain error only when "the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (citation and internal quotation marks omitted). III. 15 This appeal presents the question of the scope of the "fact of a prior conviction" exception to the Sixth Amendment protections outlined in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, including United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). More specifically, it requires that we address the question of whether the Sixth Amendment is offended when a sentencing court makes findings of fact regarding the circumstances of a defendant's prior conviction, and then relies on such findings to reach the conclusion that the prior conviction "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another," USSG § 4B1.2(a)(2), and enhances the defendant's sentence as a result. A. 16 Two important recent developments in Sixth Amendment jurisprudence guide our analysis of this case. First, in Booker, the Court held that the Sixth Amendment is contravened when a sentencing court, acting pursuant to the Guidelines, imposes a sentence greater than the maximum authorized by facts, other than the fact of a prior conviction, admitted by the defendant or found by the jury alone. Booker, 125 S.Ct. at 750-51. Second, in Shepard, the Court recently instructed that Sixth Amendment protections apply to "a disputed fact . . . about a prior conviction." 125 S.Ct. at 1262 (emphasis added). 1. 17 As the Court's line of decisions originating with Apprendi make clear, the Sixth Amendment mandates that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence of any waiver of rights by the defendant." Shepard, 125 S.Ct. at 1262 (citing Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)) (emphasis added). This protection applies to the Sentencing Guidelines, which, though promulgated not by Congress itself but by the United States Sentencing Commission, had until recently the force and effect of law, and thus implicate the Sixth Amendment. Booker, 125 S.Ct. at 750. In order to determine whether a Sixth Amendment error occurred in Washington's sentencing, we look first to whether the sentencing court imposed a "sentence exceeding the maximum allowed based only on the facts found by the jury." United States v. Hughes, 401 F.3d 540, 2005 WL 628224, at 5 (4th Cir. Mar.16, 2005). More specifically, we must assess whether the sentencing court's enhancement fits within the "fact of a prior conviction" exception of Apprendi and Booker. 2. 18 The "fact of a prior conviction" exception specified in Apprendi originated in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In that case, the Court addressed the appeal of an alien who had pleaded guilty to re-entering the United States illegally after his deportation, in contravention of 8 U.S.C. § 1326. A subsection of that statute authorized a sentence of up to twenty years for an alien who illegally returned to this country after having previously been deported following an aggravated felony. See 8 U.S.C. § 1326(b)(2). The Court determined that the failure of the indictment to allege the defendant's prior aggravated felonies and the applicability of subsection (b)(2) neither contravened the Sixth Amendment nor implicated due process concerns, because the statutory provision was simply a penalty provision to be applied by a sentencing judge in a post-conviction setting — i.e., it was not a separate offense. Almendarez-Torres, 523 U.S. at 233-36, 118 S.Ct. 1219. 19 In Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, the Court enunciated its holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In explaining this rule, the Court in Apprendi limited its ruling in Almendarez-Torres, pointing to two factors that distinguished Almendarez-Torres's case: "the certainty that procedural safeguards attached to any `fact' of prior conviction" and "the reality that Almendarez-Torres did not challenge the accuracy of that fact in his case." Id. at 488, 120 S.Ct. 2348. Together, these factors "mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a `fact' increasing punishment beyond the maximum of the statutory range." Id. 3. 20 In its recent Shepard decision, the Court addressed the application of the prior conviction exception to a disputed fact "about a prior conviction." 125 S.Ct. at 1262 (emphasis added). Shepard, who was convicted under 18 U.S.C. § 922(g), initially faced a maximum sentence, under the Guidelines, of thirty-seven months; however, the Government sought to increase his sentence to the fifteen-year mandatory minimum of § 924(e), which applies to felons with three prior drug or violent felony convictions. Shepard had three prior burglary convictions, and the Government maintained that those burglaries constituted "violent felonies." Shepard, 125 S.Ct. at 1258. 21 In making this contention, however, the Government ran afoul of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), where the Court had earlier determined that a "violent felony," pursuant to 18 U.S.C. § 924(e), includes only the burglary of a structure or building ("generic burglary"), not other types of burglary, such as burglaries of cars or vessels.5 The burglary statute of Massachusetts, where Shepard's three earlier convictions occurred, is broader than generic burglary, and can also include burglary of a non-structure, such as a car or vessel. Shepard's indictment did not specify whether burglary of a structure, i.e., generic burglary, was at issue in his convictions. As a result, the First Circuit instructed the sentencing court to answer this question by looking to the relevant complaint applications and police reports. United States v. Shepard, 348 F.3d 308, 310-11 (1st Cir.2003), vacated by ___ U.S. ___, 125 S.Ct. 1254, ___ L.Ed.2d ___ (2005).6 The Supreme Court granted certiorari and reversed the First Circuit. In so doing, the Court reiterated its holding in Taylor that a sentencing court addressing § 924(e) cannot consider items from the record of a prior conviction that were not conclusively validated in the earlier proceeding. Shepard, 125 S.Ct. at 1260-61. 22 An opinion authored by Justice Souter in Shepard and joined by three other Justices (of the eight participating),7 characterized Taylor's statutory construction rule as of Sixth Amendment significance. The plurality opinion first explained that a burglary conviction rendered in a generic burglary state inherently identifies the offense as a "violent felony," and the "judicial finding of a disputed prior conviction is made on the authority of Almendarez-Torres." Shepard, 125 S.Ct. at 1262. However, when the definition of the prior crime itself does not reveal whether the conviction was for generic burglary, as Justice Souter explained, the "only certainty of a generic finding lies in jury instructions, or bench trial findings and rulings, or (in a pleaded case) in the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea." Id. 23 A sentencing court's consideration of materials beyond those documents identified by the Court, the Shepard plurality advised, "raises the concern underlying Jones and Apprendi." Id. It deemed "debatable" which, if any, facts contained in such additional documents were part of what the state court was "required to find" as a basis for the earlier conviction. Id. If the sentencing court were to determine which facts the state court was "required to find" as part of the judgment, the sentencing court would "make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea." Id. Such a "disputed fact. . . about a prior conviction" is "too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." Id. As a result, Justice Souter's plurality opinion advised that the Court's construction of § 924(e) is "necessary to avoid serious risks of unconstitutionality." Id. at 1263. 24 Justice Thomas's concurring opinion announced an even stronger view: that a sentencing court's reliance on items beyond the charging papers in the earlier case would give rise not merely to constitutional doubt, but to constitutional error. See Shepard, 125 S.Ct. at 1263-64 (Thomas, J., concurring in part and concurring in the judgment). A majority of the Shepard Court thus agreed that any inquiry beyond charging documents and the like, in the context of the application of § 924(e), at the very least raises "serious" constitutional "risks." B. 25 Washington's case raises the issue of the scope and substance of the Sixth Amendment "risks" identified in Shepard. The sentencing court increased Washington's sentence above that authorized by his earlier guilty plea to the breaking and entering charge alone, and did so based on its determination that Washington's conviction was for a "crime of violence," because it "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another." USSG § 4B1.2(a)(2). In making this determination, the sentencing court relied on facts outside the indictment containing the prior breaking and entering offense. As applied to Washington's appeal, the Apprendi line of decisions mandates the conclusion that this procedure involved more than the "fact of a prior conviction" exempted by Apprendi from Sixth Amendment protection. Accordingly, as explained below, Washington's sentence was imposed in violation of his Sixth Amendment rights.8 1. 26 The sentencing court relied on facts outside the indictment in concluding that Washington's prior offense was a crime of violence. Although the court began with the conduct expressly charged — Count 1 of Washington's earlier indictment — the court then found additional facts about the building that was subjected to the break-in.9 These facts included what, from the court's common experience, the building's likely contents were; the identity of any occupants; and the probable level of security. These additional, hypothetical facts were specific: e.g., that "drugs and guns" would be present on the premises; that such items would be "protected from theft"; that, "even if no one affiliated with the Task Force was present at the time" of the break-in, "one or more members or employees" could "show up there at any time of day or night in view of the oft-times clandestine and nocturnal nature of their work"; and that any such employee "would be armed." While the court characterized these facts as arising from its common experience, they echoed the extra-indictment information presented by the Government.10 27 Significantly, the additional facts found and relied upon by the sentencing court were nowhere alleged in Washington's state court indictment. That indictment merely identified the building as one occupied by the Midwestern Drug and Violent Crime Task Force. Importantly, it did not reveal whether the Task Force office consists of bureaucratic administrators or police officers, or the nature of property contained therein — e.g., computers and files or drugs and guns. 28 In these circumstances, the sentencing court relied on facts outside of the prior indictment and resolved a disputed fact "about a prior conviction," see Shepard, 125 S.Ct. at 1262 (emphasis added) — namely, that the prior conviction was one which "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another." USSG § 4B1.2(a)(2). These findings are "too far removed from the conclusive significance of a prior judicial record," and "too much like the findings subject to Jones and Apprendi," Shepard, 125 S.Ct. at 1262, "to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute," id. This process and its results thus raise the very "risk" identified in Shepard, that Sixth Amendment error occurred. 2. 29 The question before us concerns whether the "risk" identified by the Court in Shepard was actually realized here — that is, whether the sentencing court's use of extra-indictment facts contravened Washington's Sixth Amendment rights. And, as explained below, we are constrained to conclude that it was. 30 There is no question that the extra-indictment facts relied on by the sentencing court, and its conclusion that Washington's prior offense constituted a "crime of violence," were not necessarily determined in the earlier proceeding. Washington pleaded guilty to the breaking and entering count of the prior indictment only, and no judicial determination was made that Washington had committed larceny — much less what, if anything, was stolen from (and therefore contained in) the building. Washington's prior guilty plea in no way implicated the level of the building's security system, the nature of its employees and their activities, or whether they at times return to work at night. As a result, the foregoing aspects of the prior conviction, which were relied upon by the sentencing court to enhance Washington's base offense level, were not part of what the state court was "required to find" as part of Washington's conviction. Shepard, 125 S.Ct. at 1262. 31 Furthermore, the special circumstances identified by the Court in Almendarez-Torres are not present here. See Apprendi, 530 U.S. at 488, 120 S.Ct. 2348 (noting that Almendarez-Torres admitted that his prior conviction was for an "aggravated felony"). Washington contests both the additional facts relied upon by the sentencing court, and the court's conclusion, based on those facts, that his prior conviction was a "crime of violence" because it "otherwise involved conduct that presented a serious risk of potential physical injury to another." Washington has not waived this issue, Shepard, 125 S.Ct. at 1262, and the "procedural safeguards" concern of the Apprendi line of decisions thus have not been satisfied. See Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. As a result, the sentencing court's reliance on extra-indictment facts in concluding that Washington's prior offense constituted a "crime of violence" resulted in an enhancement to Washington's sentence based on more than the "fact of" his prior conviction. See Shepard, 125 S.Ct. at 1262-63. A Sixth Amendment error thus occurred. C. 32 In conclusion, the sentencing court's application of the crime of violence enhancement of §§ 2K2.1(a)(4) and 4B1.2(a) of the Sentencing Guidelines in Washington's sentencing proceedings was error under Booker and Shepard. And, even though both those decisions were rendered by the Supreme Court after Washington was sentenced, the error was nonetheless "plain" at the time of our appellate review. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (finding that an error is plain "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal"). The sentencing court's application of § 2K2.1(a)(4) in Washington's case resulted in at least nine months of additional imprisonment for him. In these circumstances, "the sentence imposed by the district court as a result of the Sixth Amendment violation was longer than that to which he would otherwise be subject," Hughes, 401 F.3d 540, 2005 WL 628224, at 6 (quoting United States v. Angle, 254 F.3d 514, 518 (4th Cir.2001) (en banc)), and the sentence contravened Washington's substantial rights. See Hughes, 401 F.3d 540, 2005 WL 628224, at 5-6; accord United States v. Promise, 255 F.3d 150, 160 (4th Cir.2001) (en banc) (holding that Apprendi error resulting in increased sentence affects defendant's substantial rights). Finally, consistent with Hughes, to leave standing Washington's sentence, which was at least nine months longer than he could have received without the error, would place in jeopardy the fairness, integrity, or public reputation of judicial proceedings. Hughes, 401 F.3d 540, 2005 WL 628224, at 13; see also United States v. Washington, 398 F.3d 306, 312-13 (4th Cir.2005) (recognizing error resulting in five months extra imprisonment). IV. 33 Pursuant to the foregoing, we vacate Washington's sentence and remand for such other and further proceedings as may be appropriate. VACATED AND REMANDED Notes: 1 Application Note 1 of the Commentary to § 4B1.2 further explains that a: "[c]rime of violence" includes . . . burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted . . . by its nature, presented a serious potential risk of physical injury to another. 2 In requesting briefing on the crime of violence issue, the court advised counsel that, "if it is . . . appropriate . . . to look to the specifics of the crime, then either by stipulation or by evidence, the government needs to present the Court with the facts." 3 The Government's sentencing memorandum failed to address the issue of the information and sources on which the court could properly rely. Washington's brief urged the court, however, to consider only the elements of the offense and the conduct "expressly charged in the count of conviction." Washington contended that application of this rule required the court to disregard all evidence of items stolen, particularly drugs and guns, and the alleged existence of security alarms or police patrols 4 Count 2 of the state court indictment alleged that Washington had committed "Grand Larceny" in that he "did unlawfully and feloniously steal . . . the property of the Midwestern Drug and Violent Crime Task Force." Washington pleaded guilty to Count 1 of the indictment only, charging him with breaking and entering, and Count 2 was dismissed 5 Section 924(e) of Title 18, in contrast to the Guideline at issue here, USSG § 4B1.2(a), explicitly lists "burglary" as a "violent felony" offense 6 The complaint applications and police reports relating to Shepard's earlier offenses made clear that the crimes "were for entries into buildings and so constituted generic burglaries underTaylor." Shepard, 348 F.3d at 310. 7 The Chief Justice did not participate in theShepard decision. Though the Sixth Amendment portion of Shepard was rendered by a plurality only, Justice Thomas filed a concurring opinion, announcing a view on the application of the Sixth Amendment even stronger than that expressed by the plurality opinion. Shepard, 125 S.Ct. at 1263-64 (Thomas, J., concurring in part and concurring in the judgment). 8 As reflected herein, we need not reach Washington's contention that a burglary of a commercial structure does not, as a matter of law, constitute a "crime of violence" under the GuidelinesSee United States v. Harrison, 58 F.3d 115 (4th Cir.1995). 9 The court's characterization of its findings about the Task Force office as derived from "common experience" does not make them any less "facts."See Fed.R.Evid. 201 (allowing court to take judicial notice of adjudicative "fact"); Ohio Bell Tel. Co. v. Pub. Util. Comm'n of Ohio, 301 U.S. 292, 301, 57 S.Ct. 724, 81 L.Ed. 1093 (1937) ("notice, even when taken, has no other effect than to relieve one of the parties to a controversy of the burden of resorting to the usual forms of evidence"). See also United States v. Lewis, 833 F.2d 1380, 1385 (9th Cir.1987) ("a trial judge is prohibited from relying on his personal experience to support the taking of judicial notice") (citing 9 J. Wigmore, Evidence in Trials at Common Law § 2569, at 723 (J. Chabourn rev. ed.1981)). 10 The Government had represented to the court that the building housed "evidence, narcotics, weapons," that "I believe this particular office has surveillance equipment, security alarms," and that the building "is frequently manned at all hours of the day and night, although I don't believe it is routinely a 24-hour manned facility." (J.A. 61). These representations were part of a colloquy between the Government and the court about the facts of Washington's prior conviction, facts which were not spelled out in the charging and plea documents for that offense. This investigation by the court into the circumstances of Washington's prior offense, and its careful consideration of what the possible consequences of those circumstances might be, was clearly attributable to its characteristic thoroughness. However judicious that inquiry may have been, however, in the post-Booker (and post-Shepard) world, it was beyond the inquiry now permitted. LUTTIG, Circuit Judge, dissenting: 34 Contrary to the majority's conclusion, it is beyond question that the district court determined that Washington's prior conviction was a crime of violence, based exclusively upon the facts presented in the indictment underlying that prior conviction. Neither that crime of violence determination nor the indictment facts exclusively relied upon by the district court are required to be found by a jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and therefore Washington's sentence is not infirm as a consequence of either the district court's ultimate determination or its reliance upon the indictment's facts. The district court's imposition of sentence pursuant to a mandatory guidelines regime, in contrast, was error under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, I would not notice that error here, because Washington's substantial rights were not affected by that error, and because affirming Washington's sentence would not "seriously affect the fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Accordingly, I dissent. I. 35 As the majority concedes, the "fact of a prior conviction" is excepted from the Apprendi framework. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). Apprendi's prior conviction exception derives, at least in part, from Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), wherein the Court held that prior convictions not included in Almendarez-Torres' indictment could properly form the basis of an increase in his sentence. Id. at 243, 118 S.Ct. 1219 ("[T]he sentencing factor at issue here — recidivism — is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence."). The Apprendi court explained that "[b]oth the certainty that procedural safeguards attached to any `fact' of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that `fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a `fact' increasing punishment beyond the maximum of the statutory range." Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. 36 The district court's enhancement of Washington's sentence plainly fits within this exception to the rule of Apprendi. Contrary to the conclusion reached by the majority, the only facts that the district court relied upon for its determination that Washington's prior conviction was a crime of violence were those facts recited in the indictment underlying that conviction. The district court explained that Application Note 1 to Section 4B1.2 instructs the sentencing court to examine the "conduct set forth . . . that is expressly charged. . . in the count in which the defendant was convicted." J.A. 120 (emphasis added). Consistent with the court's exclusive focus on the facts alleged in the indictment, the district court noted that it was unconstrained by United States v. Harrison, 58 F.3d 115 (4th Cir.1995) because the "Court there did not have need or occasion to consider the meaning or application of the phrase, `conduct expressly charged.'" J.A. at 121 (emphasis added). The district court next explained, consistent with circuit precedent holding that "in assessing whether a particular offense satisfies the `otherwise clause' of [§ 4B1.2(a)], a sentencing court must confine its factual inquiry to those facts charged in the indictment," United States v. Dickerson, 77 F.3d 774, 776 (4th Cir.1996), that it would "look to the indictment itself . . . that is, the conduct expressly charged in the breaking and entering count of which the defendant was convicted." J.A. at 122. It then proceeded to read into the record the relevant portions of that indictment: 37 That Gay S. Washington, Jr., . . . did unlawfully and feloniously break and enter a building of the City of Hurricane, a Municipal corporation, occupied by the Midwestern Drug and Violent Crime Task Force, with intent the goods and property of said Midwestern Drug and Violent Crime Task Force . . . then and there to steal, take, and carry away. 38 J.A. 80. 39 After setting forth the proper legal standard governing the application of section 4B1.2(a) and recounting the specific contents of the indictment, the district court concluded that Washington's prior conviction was a crime of violence, reasoning as follows: 40 By virtue of the conduct expressly charged in that indictment, the Court concludes that the breaking and entering of a government-owned building to steal the goods and property of a drug and violent crime task force is conduct that, by its nature, presents a serious potential risk of physical injury to another. 41 Based on common experience, it is reasonable to expect that quarters occupied by a drug and violent crime unit would contain both drugs and guns that are protected from theft; that, even if no one affiliated with the task force was present at the time of a breaking and entering into its quarters, one or more members or employees of the task force may show up there at any time of day or night in view of the oft-times clandestine and nocturnal nature of their work; and such persons would be armed. 42 The act of breaking and entering such a facility is a reckless, dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another. 43 J.A. 122-23 (emphasis added). 44 The majority concludes that the district court's determination is not subject to Apprendi's prior conviction exception because the district court used its "common experience" to find facts beyond the scope of Washington's indictment that "echoed the extra-indictment information presented by the government," ante at 841-42, and because Washington "contests" the conclusion that his prior conviction" `involve[d] conduct that presented a serious potential risk of physical injury to another.'" Ante at 843 (emphasis added). The record actually confirms that the district court did not rely upon any extra-indictment facts. And neither the fact that the court referenced "common experience" nor the fact that Washington contests the court's crime of violence determination is sufficient to take the district court's determination outside the scope of Apprendi's exception. 45 The majority's suggestion that the district court, sub silentio, relied on extra-indictment information about Washington's crime is simply mistaken. The district court was aware of extra-indictment facts; the Government made certain representations pertaining to Washington's prior conviction during the June 17, 2003 hearing, J.A. 60-61, and it also submitted, as an exhibit to its sentencing memorandum, a police report describing Washington's prior conviction. J.A. 76-79. But the majority's suggestion that the district court's reference to its "common experience" merely masked its reliance on the Government's representations and the police report is nowhere supported in the record. Indeed, at the conclusion of the June 17, 2003 hearing, where the Government made representations about Washington's prior conviction, the district court asked the parties for a "review of the authorities to determine whether or not the Court simply looks to the crime as labeled or whether the Court looks to the crime as labeled coupled with the indictment or information, . . . or whether the Court looks to that as well as the specific circumstances of the particular case in order to determine whether the otherwise clause of the sentencing guideline is met." J.A. 65. And, as recounted above, at the August 29, 2003 hearing, where the district court imposed Washington's sentence, it is plain that the district court was aware that the relevant guideline application note required it to look only to the conduct expressly charged in the indictment and that those facts contained in the indictment were the sole factual bases for the imposed enhancement. The extra-indictment information referenced by the majority was not even mentioned during this hearing and there is no evidence whatever in the record to suggest the district court relied on that information as the basis for the enhancement.* 46 Nor did the district court's reference to "common experience" and the conclusions drawn therefrom entail any factual findings subject to the rule of Apprendi. Rather, such merely constituted the district court's legal analysis of whether the indictment underlying Washington's prior offense described a crime that was likely to present a serious risk of physical injury to another. The district court's decisional process was no different than if it had determined that the carrying of a gun during the course of a drug transaction constituted a crime of violence because "common experience" informs that physical injury is a foreseeable consequence of carrying a gun during such a transaction. Surely we would not hold that the court's determination in such context was an impermissible judicial finding of fact; no more so was the district court's determination in the present case impermissible. The district court made no findings as to the likelihood of violence in the specific context of the drug task force headquarters burglarized by Washington; it only drew the legal conclusion that violence is foreseeable when one burglarizes a building occupied by an organization such as a drug task force. 47 Because the district court's conclusion rested solely on the court's application of the definition in 4B1.2(a) to the facts expressly charged in the indictment, without any extra-indictment factual findings, under our circuit precedent the court's application of the "otherwise" portion of the definition of crime of violence to those facts resulted in a legal — as opposed to factual — conclusion subject to de novo review on appeal. See United States v. Pierce, 278 F.3d 282, 286 (4th Cir.2002) (holding that "[t]he question" of whether a prior conviction is "an offense, which, `by its nature, presents a serious potential risk of physical injury to another' . . . is a question of law that we review de novo"); United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.1996). 48 The majority also suggests that the "special circumstances identified by the Court in Almendarez-Torres are not present here," ante at 843, because Washington contests the conclusion that his prior conviction was a crime of violence, whereas Almendarez-Torres admitted that his prior convictions were aggravated felonies. But just as Almendarez-Torres did not dispute the facts relevant to the increase in his sentence, so too has Washington admitted the facts relevant to his enhancement. And this is all that matters. 49 Washington's prior conviction was an element, and thus included in the indictment, of the instant felon-in-possession offense, to which Washington pled guilty. J.A. 7; 46-49. Moreover, Washington does not dispute the accuracy of the facts contained in the indictment pertaining to his prior conviction, J.A. 110, and, as established above, it is clear that the district court did not rely on extra-indictment factual findings. Therefore, Washington only challenges the district court's legal conclusion, namely whether breaking and entering a drug and violent crime task force "presents a serious risk of physical injury to another." U.S.S.G. § 4B1.2(a). Both features identified by Apprendi as pertinent to the prior conviction exception exist in this case: Washington's plea of guilty to the prior conviction was accompanied by "procedural safeguards," and, in the instant proceedings, Washington has admitted the fact of his prior conviction, inclusive of the facts revealed in the indictment pertaining to that conviction. See Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. As a consequence, there was no Apprendi error whatsoever in this case. 50 This determination is not altered by the plurality's conclusion in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, ___ L.Ed.2d ___ (2005). Contrary to the majority's suggestion, that case does not establish that Apprendi's prior conviction exception is per se inapplicable to disputes "about a prior conviction." Id. at 1262. Rather, it merely establishes that such disputes must be resolved by reference to "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Id. at 1263 (emphasis added). Here, consistent with this conclusion, the district court relied exclusively on the charging document pertaining to Washington's prior conviction. 51 Because the district court's application of the "otherwise" portion of section 4B1.2(a) to the conduct charged in Washington's prior indictment was correct, I would affirm its judgment. II. 52 While the district court's imposition of a sentence enhancement did not infringe Washington's Sixth Amendment rights because the court did not enhance Washington's sentence on the basis of judicially-found facts, the district court's treatment of the federal sentencing guidelines as mandatory, and its imposition of Washington's sentence under the guidelines so understood, was error. See United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 53 Because Washington did not challenge the propriety of a mandatory sentencing guidelines regime in the district court, our review is under Federal Rule of Criminal Procedure 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). In order for Washington to prevail under Rule 52(b), "there must be an `error' that is `plain' and that `affects substantial rights.'" United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Because "Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals," we "should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. 54 Proper application of Rule 52(b) depends upon an accurate understanding of the error committed which, in turn, requires an accurate understanding of Booker. 55 In Booker, the Supreme Court held that judicial factfinding that results in an increase in an offender's sentence under the "Guidelines as written" — that is, the guidelines as "mandatory and binding on all judges" — violates the Sixth Amendment. Booker, 125 S.Ct. at 750 (Stevens, J.). The Court's remedy for this constitutional infirmity, however, was not the abolition of judicial factfinding; rather, the Court severed entirely "the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1)," id. at 756 (Breyer, J.). The effect of this severance was to render the Guidelines advisory in all cases, not merely those cases in which the trial court impermissibly found facts in violation of the Sixth Amendment. Indeed, the Court specifically rejected the Government's proposal to treat the guidelines as mandatory in cases in which there was no constitutionally impermissible judicial factfinding, on the grounds of the Court's conclusion that "Congress would not have authorized a mandatory system in some cases and a nonmandatory system in others." Id. at 768 (Breyer, J.); see also id. at 769 (Breyer, J.) ("[W]e must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review."). 56 Because of the constitutional violation identified in Booker and the remedy ordered by the Court, Booker errors can take two forms. 57 First, it is error if the sentencing court (1) within a mandatory guideline regime (2) found facts that resulted in an increase in the offender's sentence beyond that which would have been supported by the jury's findings. This error, which results in a violation of the Sixth Amendment, is the type of error that occurred in Booker's case. As the Court explained, the district court's error was that it "applied the Guidelines as written and imposed a sentence higher than the maximum authorized solely by the jury's verdict." Id. at 769 (Breyer, J.). Justice Breyer's reference to the "Guidelines as written" confirms that the district court's treatment of the Guidelines as mandatory was necessarily part of the error that occurred in Booker's case. See Booker, 125 S.Ct. at 750 ("The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.") (emphasis added). See also United States v. Gilchrist, 2005 WL 599745 (4th Cir. March 8, 2005) (Luttig, J. concurring,) (concluding that United States v. Hughes, 396 F.3d 374 (4th Cir.2005) fundamentally misidentified the foregoing Booker error "[b]y failing to recognize as error the district court's imposition of sentence on the assumption that the Guidelines were mandatory"). 58 Second, because the Court held that the remedy for impermissible judicial factfinding in violation of the Sixth Amendment was the severance of the provision that made the Guidelines mandatory (rendering them in all cases advisory), it is also error if the sentencing court merely imposed a sentence under the Guidelines "as written," that is, as mandatory. This second type of error, which does not entail a violation of the Sixth Amendment because the district court did not find facts impermissibly, is the type of error that occurred in Washington's (and Fanfan's) case. 59 While it is possible for a sentencing court to have erred under Booker in either of these two respects, it must be understood that a court will not have erred in either respect provided that it sentenced the offender under the Guidelines as advisory only. And this even if the court increased the offender's sentence based upon facts beyond those found by the jury. 60 The district court in this case committed the second type of Booker error, and this type only. It erred by applying the "Guidelines as written," that is, as mandatory. And, even though Booker was decided after the district court imposed Washington's sentence, that error is nonetheless deemed to have been "plain." See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (finding that an error is plain "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal"). 61 In order to prevail under Rule 52(b), Washington bears the burden of establishing that the district court's error affected his substantial rights. See Olano, 507 U.S. at 734, 113 S.Ct. 1770 ("It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice."). An error affects substantial rights, when "the error actually affected the outcome of the proceedings." United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998) (emphasis added). In the context of an error relating to the imposition of sentence, a defendant "must establish that [the imposed] sentence was longer than that to which he would otherwise be subject." United States v. Angle, 254 F.3d 514, 518 (4th Cir.2001) (en banc). While the Supreme Court has variously articulated the requirement that a different result would have been likely or probable, see United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2342, 159 L.Ed.2d 157 (2004) (Scalia, J. concurring), it has recently suggested that an offender can establish prejudice with a "showing of a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different." Id. at 2339 (internal quotations omitted); see also United States v. Antonakopoulos, 399 F.3d 68, 2005 WL 407365, at 7-8 (1st Cir.2005) (adopting the Dominguez Benitez"reasonable probability" standard for Booker claims). 62 As previously established, the district court erred when it imposed Washington's sentence pursuant to a mandatory sentencing guidelines regime, i.e., when it failed to treat the Guidelines as advisory. Thus, whether Washington's substantial rights were affected depends upon whether he can establish a reasonable probability that he would have received a lower sentence had the district court imposed that sentence pursuant to the advisory framework required by Booker. 63 Washington, however, has not claimed that he would have received a lower sentence under that framework and neither would the record support such a conclusion. Although the district court elected to sentence Washington at the bottom of the guideline range, it did not suggest that it was dissatisfied with this sentence. Indeed, the court noted that Washington had been "involved . . . in a number of criminal matters." J.A. 126. Thus, even assuming it were possible under a different set of facts, under these facts Washington cannot possibly establish that the error affected his substantial rights. Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) ("Where the effect of an alleged error is . . . uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights."). 64 Even if Washington could establish that the error here affected his substantial rights, I would not, and we should not, notice that error. The Supreme Court has admonished that we should only notice "particularly egregious errors . . . that seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). This is not such an error. Because there was no impermissible judicial factfinding, Washington's Sixth Amendment rights have not been infringed, and as such he is merely a collateral beneficiary of the remedy imposed by the Court in Booker. Moreover, Washington's sentence is in accordance with the Sentencing Guidelines and therefore presumptively reasonable. 65 The error here, in other words, is neither "particularly egregious" nor is it likely to undermine the "fairness, integrity or public reputation of judicial proceedings." Therefore, consistent with Justice Breyer's opinion for the Court in Booker, I would decline to notice the error here. Booker, 125 S.Ct. at 769 ("Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the `plain error' test."). III. 66 Because Washington's sentence was imposed consistent with the requirements of the Sixth Amendment and because he is not entitled to relief under Rule 52(b), I would affirm Washington's sentence. I therefore dissent. Notes: The majority notes that the district court rested its "crime of violence" determination on "findings of fact [and conclusions of law] . . . made by a preponderance of the evidence." J.A. 165. But the district court's reference to "findings of fact" merely begs the question of whether the district court foundextra-indictment facts. And, the district court plainly answered this question in the negative when it explained that Washington's prior crime was a crime of violence "[b]y virtue of the conduct expressly charged in that indictment." J.A. 122.	{ "pile_set_name": "FreeLaw" }
CNH Diversified Opportunities Master Account, L.P. v Cleveland Unlimited, Inc. (2018 NY Slip Op 04671) CNH Diversified Opportunities Master Account, L.P. v Cleveland Unlimited, Inc. 2018 NY Slip Op 04671 Decided on June 26, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 26, 2018 Renwick, J.P., Gische, Gesmer, Kern, JJ. 650140/12 6968 6967 [*1]CNH Diversified Opportunities Master Account, L.P., et al., Plaintiffs-Appellants, vCleveland Unlimited, Inc., et al., Defendants-Respondents. Drinker Biddle & Reath LLP, New York (James H. Millar of counsel), for appellants. Holwell Shuster & Goldberg LLP, New York (James M. McGuire of counsel), for respondents. Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered February 7, 2018, inter alia, dismissing the complaint pursuant to an order, same court and Justice, entered January 16, 2018, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' motion for summary judgment, unanimously affirmed. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. The court properly dismissed plaintiffs' breach of contract claim based on section 6.07 of the parties' Indenture. A fair reading of the Indenture, Collateral Trust Agreement and Security Agreement (Agreements) demonstrates that the collateral trustee was authorized to pursue default remedies, including the strict foreclosure at issue here, if so directed by a majority of the noteholders. Section 6.07 of the Indenture, which sets forth that the holder's right to payment of principal and interest on the note, or to bring an enforcement suit, "shall not be impaired or affected without the consent of such Holder," does not supersede the numerous default remedy provisions of the Agreements, nor does it conflict with them. Section 6.07 of the Indenture, which tracks the language of section 316(b) of the Trust Indenture Act of 1939 (15 USC § 77ppp[b]) "prohibits only non-consensual amendments to an indenture's core payment terms" (Marblegate Asset Mgt., LLC v Education Mgt. Fin. Corp., 846 F3d 1, 3 [2d Cir 2017]). Here, the strict foreclosure and debt equity restructuring did not amend the core payment terms in violation of section 6.07 of the Indenture, even if it had a "similar effect" (see Beal Sav. Bank v Sommer, 8 NY3d 318, 330 [2007]). Furthermore, the record shows that plaintiffs received and accepted the resulting equity from the debt restructuring. We have considered plaintiffs' remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JUNE 26, 2018 CLERK	{ "pile_set_name": "FreeLaw" }
198 F.2d 607 MOORE et al.v.C. R. ANTHONY CO. No. 4410. United States Court of Appeals Tenth Circuit. August 7, 1952. Paul Dudley, Oklahoma City, Okl. (J. B. Dudley, Oklahoma City, Okl., and Charles E. Bledsoe, Lawton, Okl., on the brief), for appellant. Joseph J. Gravely, St. Louis, Mo., and Carlisle Blalock, Dallas, Tex. (Joe A. McCloud, Oklahoma City, Okl., on the brief), for appellee. Before BRATTON, HUXMAN and MURRAH, Circuit Judges. MURRAH, Circuit Judge. 1 In this suit for infringement of a design patent on a Western style hat, the trial court first held the patent valid and infringed, but subsequently granted the defendant's motion for new trial and afforded the parties an opportunity to introduce additional evidence. After the court indicated its intention to hold the patent invalid, the plaintiff, appellant here, moved for dismissal without prejudice under Rule 41(a) (2) F.R.C.P. 28 U.S.C.A. and requested the court to fix the terms and conditions of the dismissal. The court overruled the motion and reentered its first findings of fact, but finally concluded that the patent was void "for want of patentable invention." 2 On appeal from a judgment on those findings and conclusions, appellant's first assignment of error is the refusal of the court to allow it to dismiss its cause without prejudice. The contention is to the effect that Rule 41(a) (2) authorizes the dismissal of a complaint as of right, subject only to the equitable power of the court to impose "such terms and conditions as the court deems proper"; and that the refusal of the court to fix terms and conditions for dismissal was without authority under the Rule. 3 While the rule has been construed as contended, see Bolten v. General Motors Corp., 7 Cir., 180 F.2d 379, 381, we think the majority and better reasoned view is to the effect that the power of the court to order a dismissal of a case without prejudice "`upon such terms and conditions as the court deems proper'" is a matter of judicial discretion, the exercise of which will not be disturbed on appeal in the absence of clear abuse. Walker v. Spencer, 10 Cir., 123 F.2d 347; Butler v. Denton, 10 Cir., 150 F.2d 687; Ockert v. Union Barge Line Corp., 3 Cir., 190 F.2d 303; Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 91 L.Ed. 849. The motion to dismiss came after the case had been tried and submitted, and the court had finally indicated its judgment. The avowed purpose of the Rule was to prevent the dismissal of cases without prejudice after trial and in the face of an impending unfavorable judgment. See 5 Moore's Federal Practice 1018. In the circumstances, we do not think the trial court abused its discretion in overruling the motion to dismiss. 4 According to the claims and specifications, the characteristic feature of the design for the hat "resides in the configuration of the crown, which presents a relatively wide, longitudinally extending, central indentation bounded on its sides by substantially straight parallel ridges with elongated side indentations extending from end to end of the crown, the longitudinal extremities of said central indentation being bounded by transverse ridges and having transverse indentations in the adjacent front and rear portions of the crown, all as shown." Otherwise stated, the characteristic and patentable features of the hat were the special size, shape, location and arrangement of the various creases in the crown of the hat. The creases or indentations are shaped by use of a molding plug under hydraulic pressure in order to give the hat a permanently precise, formal and dressy appearance. 5 The trial court found from the evidence that for many years, hats had been shaped and creased with top, side, front and rear creases by hand and sometimes with the assistance of steam. But the court pointed out that prior attempts at hand creasing did not produce anything which resembled the plaintiff's hat. "These prior hats" said the court, "presented a slouchy and casual appearance, wherein the material is broken down at the points or lines of creasing." And, the court went on to say that the appellant's hat "has on the contrary, a formal dressy look that gives an entirely different impression than the one creased by hand or in a homemade manner." 6 Accepting these findings, the appellant contends that they established invention and that the court erred as a matter of law in resting its decree of invalidity on them. The appellee is unwilling to accept this factual premise as the sole basis for the court's decree, and, invoking the well known and salutary rule which permits it to urge in support of the decree any matter appearing in the record1, points to the prior art of record as clearly anticipating the patented design. 7 There was abundant evidence to the effect that long before the application for the patent in suit, the wearers of Western style hats dished out the top of the crown and indented the front, rear and sides to form creases similar to the patented design, and that characteristic creases were formed either by hand or by the use of steam or luke warm water. As compared with the machine-blocked design, they were somewhat crudely done but they represented the idea which found machined perfection in the patented product. These hats were identified by their owners who described in detail the manner by which the creases were hand shaped. A number of them were photographed and introduced in evidence. The record also contains a number of prior publications showing somewhat similar designs, and the trial judge observed that he had seen and worn hats similarly creased and indented. 8 Just as a mechanical patent must be more than "new and useful", so must a design patent be more than new, original and ornamental. Both must contain that indefinable genius of invention. See Smith v. Whitman Saddle Co., 148 U.S. 674, 13 S.Ct. 768, 37 L.Ed. 606. The design must not only be new and pleasing enough to win acceptance in the market place, it must also distinctly add to the total knowledge of the particular field of design; it must be more than mere perfection of workmanship. Associated Plastics Companies, Inc. v. Gits Molding Corp., 7 Cir., 182 F.2d 1000; Knickerbocker Plastic Co., Inc. v. Allied Molding Corp., 2 Cir., 184 F.2d 652; Application of Johnson, 175 F.2d 791, 36 C.C.P.A., Patents, 1175; In re Faustmann, 155 F.2d 388, 33 C.P.A., Patents, 1065; Cf. Shaffer v. Armer, 10 Cir., 184 F.2d 303. 9 As the trial court found, the machine-blocked design of the patent in suit gave it a formal dressy appearance not found in the prior art, even to the extent that it created a different impression to the public eye, with resultant commercial success. But even so, the idea was not new or original and "mere polish of an old idea is not invention." Phoenix Knitting Works, v. Rich, C.C., 194 F. 708, 717. When considered against the background of the prior art, we think the appellant did no more than popularize an old idea in Western apparel by giving it the preciseness of a machine turned product. No patentable claim is made to the process, and moreover the record shows that the machine blocking of hats is not new with the appellant. We agree that the design does not involve invention. 10 Accepting and relying upon the findings of the trial court, the appellant designated for the record only the complaint, answer, amendment, motion to dismiss under Rule 41(a) (2), order overruling motion to dismiss, findings of fact and conclusions of law, judgment and decree, notice of appeal, bond on appeal, statement of points on appeal, and appellant's Exhibit One showing the design of its hat. The remaining portions of the record relate principally to the prior art, and it was designated by appellee. The appellant moves in the alternative under Rule 16 of this Court, as amended November 1, 1951, to tax the cost of that part of the record designated by appellee against it. The contention is that in the absence of a cross-appeal, the appellee could not urge that part of the record which formed the basis of an adverse ruling, and that he could be heard only in support of favorable rulings. It is true, as we have seen, that an appellee cannot add to or enlarge upon the judgment in his favor, and it will not be permitted to designate parts of the record on which it could not rely without incurring liability for its cost, regardless of the outcome of the litigation. 11 But the prior art designated for the record did not serve to add to or enlarge the judgment in appellee's favor, it merely supported the judgment, and the designation of that part of the record was permissible even though the trial court did not rely upon it, or it tended to contradict the reasoning of the court. It is the judgment we consider on appeal and not the reasons therefor. Kanatser v. The Chrysler Corp., 10 Cir., 1952, 195 F.2d 104. An examination of the record discloses no designated matter which does not bear directly upon the prior art — the basis of our affirmance. 12 The judgment is affirmed with costs to the appellant. Notes: 1 United States v. American Railway Express Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087; Barie v. Superior Tanning Co., 7 Cir., 182 F.2d 724; Morley Const. Co. v. Maryland Casualty Co., 300 U.S. 185, 57 S.Ct. 325, 81 L.Ed. 593. Cf. Hall v. Keller, 5 Cir., 180 F.2d 753	{ "pile_set_name": "FreeLaw" }
9 So.3d 586 (2007) JERRY RANDALL HAWKINS v. STATE. No. CR-06-1004. Court of Criminal Appeals of Alabama. June 8, 2007. Decision of the Alabama Court of Criminal Appeal Without Opinion. Dismissed.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-785V Filed: August 13, 2019 * * * * * * * * * * * * * * JOHN COLAPIETRO, * UNPUBLISHED * Petitioner, * * v. * Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Amber Wilson, Esq., Maglio Christopher & Toale, PA, Washington, DC, for petitioner. Mallori Openchowski, Esq., United States Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 Roth, Special Master: On June 13, 2017, John Colapietro (“Mr. Colapietro” or “petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged that he developed chronic inflammatory demyelinating polyneuropathy (“CIDP”) after receiving an influenza (“flu”) vaccination on September 9, 2015, and a Prevnar-13 vaccine on October 26, 2015. Stipulation at ¶¶ 1-4, ECF No. 36. On March 14, 2019, the parties filed a stipulation, which the undersigned adopted as her Decision awarding compensation on the same day. ECF No. 36. On April 29, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No. 41 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of 1 The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the ruling will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. $43,576.46 (representing $22,115.40 in attorneys’ fees and $21,461.06 in costs). Fees App. at 1. Pursuant to General Order No. 9, petitioner warrants that he has not incurred any costs in pursuit of this litigation. Id. at 2. Respondent responded to the motion on May 15, 2019, stating “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Response at 2-3, ECF No. 44. Petitioner filed a reply on May 16, 2019, reiterating his belief that the requested amount of fees and costs was reasonable. Reply at 4, ECF No. 45. This matter is now ripe for consideration. I. Legal Framework The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because petitioner was awarded compensation, he is entitled to a reasonable award of attorneys’ fees and costs. The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial estimate of a reasonable attorneys' fees” is calculated by “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward based on other specific findings. Id. Special masters have substantial discretion in awarding fees and may adjust a fee request sua sponte, apart from objections raised by respondent and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). II. Discussion A. Reasonable Hourly Rate A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum 2 jurisdiction” and “there is a very significant difference” between the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years.3 Petitioner requests the following hourly rates for the work of his counsel: for Ms. Amber Wilson, $308.00 per hour for work perfomed in 2017-2018 and $323.00 per hour for work performed in 2019; for Mr. Altom Maglio, $362.00 per hour for work performed in 2017; and for Ms. Diana Stadelnikas, $372.00 per hour for work performed in 2017. Fees App. Ex. 1 at 15. The rates requested for Mr. Maglio and Ms. Stadelnikas are consistent with what they have previously been awarded for their vaccine program work. The rate requested for Ms. Wilson’s work in 2017 requires adjustment. Ms. Wilson has consistently been awarded $290.00 per hour for her 2017 Vaccine Program work. See Douglass v. Sec’y of Health & Human Servs., No. 17-175V, 2019 WL 3239466, at 2 (Fed. Cl. Spec. Mstr. Jun. 26, 2019); Waldorf v. Sec’y of Health & Human Servs., No. 17-758V, 2019 WL 1796137, at 2 (Fed. Cl. Spec. Mstr. Mar. 6, 2019). No persuasive basis has been offered to depart from these prior determinations. The submitted billing record reflects that Ms. Wilson billed 11.7 hours in 2017. Fees App. Ex. 1 at 15. The undersigned will therefore reduce the final award of fees by $210.60.4 B. Hours Reasonably Expended Attorneys' fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a 3 The 2015-2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum- Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202018.pdf. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202019.pdf. The hourly rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). 4 ($308.00 requested rate - $290.00 adjusted rate) * 11.7 hours = $210.60. 3 single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at 9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at 26. Hours spent traveling are ordinarily compensated at one- half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V, 2014 WL 2885684, at 3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at 2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, it is “well within the Special Master's discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728– 29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). The overall hours spent on this matter (91.6) appear to be mostly reasonable. The only reduction necessary is for time billed by paralegals for downloading filings. See generally fees App. Ex. 1. Beyond the fact that downloading a document from CMECF does not take six minutes, the billing records indicate Ms. Wilson also billed for review of all filings, meaning that even review of routine filings such as scheduling had twelve minutes of time billed for their handling. Accordingly, the undersigned shall reduce the final award of fees by $518.30 to account for these entries. Petitioner is therefore entitled to final attorneys’ fees of $21,386.50. C. Reasonable Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $21,461.06 in costs. Fees App. Ex. 2 at 1. This amount is comprised of acquiring medical records, postage, the Court’s filing fee, travel to meet with petitioner, and the expert work of Dr. Jeffrey Allen in reviewing medical records, researching medical literature, and preparing an expert report. The undersigned has reviewed the submitted documentation and finds that Dr. Allen’s requested rate ($500.00 per hour) and hours billed are reasonable in light of the work performed. The rest of the costs are typical of vaccine program litigation, and petitioner has provided adequate documentation to support them. Accordingly, petitioner is entitled to the full amount of attorneys’ costs sought. III. Conclusion In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is GRANTED. I find that petitioner is entitled to an award of attorneys’ fees and costs as follows: 1) $42,847.56, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to petitioner and Ms. Amber Wilson, Esq. 4 In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.5 IT IS SO ORDERED. s/Mindy Michaels Roth Mindy Michaels Roth Special Master 5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 5	{ "pile_set_name": "FreeLaw" }
705 F.2d 469 Mitchellv.Alamand Corp. 82-5473 UNITED STATES COURT OF APPEALS Eleventh Circuit 4/28/83 1 S.D.Fla. AFFIRMED 2 --------------- Fed.R.App. P. 34(a); 11th Cir. R. 23.	{ "pile_set_name": "FreeLaw" }
180 F.2d 8 PRICKETT, et al.,v.CONSOLIDATED LIQUIDATING CORP. No. 12,360. United States Court of Appeals Ninth Circuit February 15, 1950. Mohr & Borstein, Perry Bertram, Los Angeles, Cal., for appellants. Alfred Wright and Harold F. Collins, Los Angeles, Cal., for appellee. Before MATHEWS, HEALY and ORR, Circuit Judges. MATHEWS, Circuit Judge. 1 These two appeals were taken in an action brought against appellee on January 16, 1947, to enforce causes of action, hereafter called claims, for unpaid overtime compensation and liquidated damages under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. §§ 201-219. The claims sought to be enforced were those of Glenn O. Prickett, H. F. Winans, S. E. Whitney, Luther M. Walters, Samuel D. Tinker, Frank Hemminger, Oliver H. Raftery, Fred M. Koehler, Charles R. Cobb and Charles E. Smith-Sanford. Prickett, Winans and Whitney brought the action "on behalf of themselves and all other employees similarly situated." Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford claimed to be "employees similarly situated." They were not specifically named as parties plaintiff in the original complaint, but were so named in an amended complaint filed on April 6, 1949. 2 On May 23, 1949, appellee made (1) a motion "To dismiss the amended complaint and the pending action in its entirety" and (2) an alternative motion "To dismiss the amended complaint and pending action to the extent that it purports to assert claims on behalf of [Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford]." Thus the first motion was one to dismiss the action in its entirety, and the second (alternative) motion was one to dismiss the action as to Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford. 3 The first appeal was taken on June 22, 1949. It purports to be an appeal by Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford "from the judgment of dismissal as to each of them, entered in this action on May 23rd, 1949." There was no such judgment. The first appeal is therefore dismissed. 4 On September 8, 1949, the District Court entered an order the pertinent parts of which were as follows: 5 "It is ordered and adjudged, that the motion to dismiss certain claimants named in the amended complaint is hereby granted as to the following named claimants, to wit: [Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford]. 6 "It is further ordered and adjudged, that the motion to dismiss the amended complaint as to [Prickett, Winans and Whitney] is denied." 7 Thus, in effect, the order of September 8, 1949, denied the motion to dismiss the action in its entirety and granted the motion to dismiss the action as to Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford. 8 The second appeal was taken on September 8, 1949. It purports to be an appeal by all the plaintiffs "from that portion of the order of * * * September 8, 1949, which dismisses the claims of [Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford]." The order of September 8, 1949, did not contain any such "portion." It did not dismiss the claims of Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford, nor did it dismiss the action as to them. It merely granted a motion to dismiss the action as to them. Such an order is not a final decision, within the meaning of 28 U.S.C.A § 1291, and is not appealable.1 9 No final judgment having been entered, the action is still pending as to all the plaintiffs. However, the District Court may hereafter direct the entry of a final judgment — a judgment which will be a final decision, within the meaning of § 1291, and hence will be appealable — dismissing the action as to Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford, without dismissing it as to Prickett, Winans and Whitney. This can be done by following Rule 54(b) of the Federal Rules of Civil Procedure, as amended, effective March 19, 1948, 28 U.S.C.A.2 Whether it can be done without following Rule 54(b), as amended, we need not and do not now decide.3 10 Because the order of September 8, 1949, did not contain the "portion" from which the second appeal was purportedly taken, and because that order was not a final decision, within the meaning of § 1291, and was not appealable, the second appeal is dismissed. Notes: 1 City and County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390; Wright v. Gibson, 9 Cir., 128 F.2d 865; Tee-Hit-Ton Tribe of Tlingit Indians v. Olson, 9 Cir., 144 F.2d 347; Peoples Bank v. Federal Reserve Bank, 9 Cir., 149 F.2d 850; Cashion v. Bunn, 9 Cir., 149 F.2d 969 2 Rule 54(b), as amended, provides: "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims." As to the applicability of Rule 54(b), as amended, to actions brought before March 19, 1948, see Rule 86(b), as amended 3 See, however, Lockwood v. Hercules Powder Co., 8 Cir., 172 F.2d 775; Kuly v. White Motor Co., 6 Cir., 174 F.2d 742	{ "pile_set_name": "FreeLaw" }
989 So.2d 1195 (2008) PAEZ v. STATE. No. 3D08-289. District Court of Appeal of Florida, Third District. September 12, 2008. Decision without published opinion. Vol.dismissed.	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-30-2004 USA v. Clark Precedential or Non-Precedential: Non-Precedential Docket No. 03-3066 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Clark" (2004). 2004 Decisions. Paper 305. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/305 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 03-3066 UNITED STATES OF AMERICA v. TRACY CLARK, Appellant No. 03-3073 UNITED STATES OF AMERICA v. ANTHONY MILLER, Appellant Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action Nos. 01-cr-00428-2/1) District Judge: Honorable Robert F. Kelly Submitted Under Third Circuit LAR 34.1(a) September 14, 2004 Before: SCIRICA, Chief Judge, ALITO and AM BRO, Circuit Judges (Opinion filed September 30, 2004) OPINION AM BRO, Circuit Judge Appellant Anthony Miller was convicted of possession with intent to distribute in excess of 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a), and sentenced to 360 months imprisonment. Appellant Tracy Clark was convicted of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and sentenced to 293 months imprisonment. Both convictions were based on evidence that was recovered during the execution of a search warrant at Miller’s apartment in Philadelphia on December 8, 1999. Miller and Clark appeal the District Court’s denial of their motions to suppress evidence obtained during the search of the apartment. They contend that the warrant authorizing the search was not supported by probable cause and, in the alternative, that the officers executing the search waited an unreasonably short time before forcing entry, violating the “knock-and-announce” principle implicit in the Fourth Amendment. Miller separately raises two additional issues in his appeal. He asserts that there may have been impeachment material in a confidential personnel file of one of the officers involved in his investigation. By motion of Miller’s counsel, the trial judge reviewed the file in camera before ruling that he would not compel its discovery because 2 the file’s contents were immaterial and could not be entered into evidence. Miller now asks us to review independently the file and make our own ruling regarding its relevance. Finally, Miller charges that the prosecutor of his case made improper and prejudicial statements to the jury in a rebuttal argument, warranting a mistrial. Because the judge issuing the warrant had a substantial basis for concluding that probable cause existed, and because the manner in which the search was executed was not unreasonable under the circumstances, we affirm the District Court’s denial of the motions to suppress the evidence. We decline Miller’s invitation to review the materials excluded by the District Court because even if they were to contain the very evidence Miller suspects they might, this would not be enough to cast into doubt the sufficiency of the evidence upon which the jury relied to convict him. Likewise, the prosecutor’s comments to which Miller takes exception, even if we were to consider them improper, were too insignificant and too quickly cured to render their inclusion harmful. Accordingly, we affirm the convictions. I. Facts and Procedural History A. Facts On October 28, 1999, agents of the Pennsylvania Attorney General’s Office, Bureau of Narcotics Investigation and Drug Control (“BNI”), received information from a confidential informant (“CI”) regarding drug trafficking activity on the 600 block of Creighton Street in Philadelphia. The CI reported that crack cocaine was being sold at 3 this location on a 24-hour-a-day basis. The CI stated that sellers on the corner paged Miller when crack supplies began to run low, and that he would generally arrive within a half hour to resupply them. The CI indicated that Miller drove a cream-colored Lexus and that the drugs he sold were packaged and stored in a residence at the Parkside Village Apartments at Bryn Mawr Avenue and Parkside Avenue. As a result of this information, BNI agents performed surveillance on the 600 block of Creighton Street on November 8, November 19, and December 1, 1999. On those days, agents observed numerous drug transactions conducted in a nearby alley. They also twice observed Miller resupply the sellers after leaving Apartment 72 of Parkside Village. Subsequent to these observations, the BNI agents applied for a search warrant from a judge of the Court of Common Pleas of Philadelphia, requesting authorization to search Miller’s residence for evidence of drug trafficking. An agent submitted an affidavit summarizing the CI’s information and the observations made during the surveillance, which, he submitted, established probable cause for the search. The judge agreed that probable cause existed and issued the warrant on December 7, 1999. On December 8, 1999, at about 5:00 p.m., six BNI agents prepared to execute the search warrant. When the agents, who wore raid gear that was clearly marked “Police,” gathered outside the buildings, one of the agents observed someone looking out of the window of Apartment 72. The agents proceeded upstairs, where they knocked on the 4 door and announced “police search warrant.” No one responded to this announcement, although agents heard footsteps inside the apartment suggesting that someone was running around and not traveling in the direction of the door. The agents believed that there was a strong possibility that evidence, particularly cocaine, was being destroyed. After waiting approximately 10 seconds, the agents forcibly knocked down the door and entered the apartment. Miller was inside the apartment together with Clark. Clark attempted to pull a .45 caliber semiautomatic handgun out of his waistband, but was apprehended along with Miller. In Miller’s jacket were found 135 packets of crack cocaine. In addition, a wide variety of packaging material and other paraphernalia were recovered throughout the apartment, including amber-colored vials containing crack, many empty packets and vials, and a heat sealer, strainer, and other tools used in packaging narcotics. Other items included a glass bowl in the microwave oven containing white powdery residue, digital scales, blue-tinted ziplock packets of crack, and a coffee grinder containing white powder residue. The total amount of crack recovered was approximately 59.9 grams. B. The M otions to Suppress Prior to trial, Miller and Clark separately moved to suppress evidence obtained in the search of the apartment on two grounds: 1) that the BNI failed to establish probable cause when applying for the search warrant, and 2) that the officers waited an unreasonably short period before forcing entry into the apartment. The District Court 5 held a hearing on these issues, during which Miller’s counsel argued that the probable cause determination had been based entirely on uncorroborated information by a non- credible CI and that the knock-and-announce principle was violated. The District Court denied the motions, ruling that the affidavit submitted with the the application for the warrant supported a finding of probable cause to believe that the narcotics operation on Creighton Street was being supplied from drugs stored in Apartment 72 of Parkside Village. The District Court also ruled that the knock-and-announce principle was not violated, because the manner of the forced entry was not unreasonable under the circumstances. The exigent circumstances that, in the District Court’s opinion, rendered the short wait reasonable included: 1) the agents noticing someone look out the window of the apartment, leading them to conclude that the individuals inside the apartment were aware of their presence, and 2) the agents hearing hurried footsteps inside the apartment that were not moving in the direction of the door, leading them to believe that crack, which is easily destroyed, was possibly being destroyed or disposed. C. The Personnel File During trial, Miller’s counsel requested that the Government produce the personnel file of BNI Agent Kenneth Bellis, who testified against Miller. The file contained an internal BNI report on an investigation into alleged misuse of Government property by Agent Bellis. Because the Government represented that the contents of the confidential report were irrelevant to this case, it objected to their discovery by the 6 defense. At the suggestion of Miller’s counsel, both sides agreed that the trial judge would review the report in camera to determine whether it was relevant to the defense, and in particular whether it contained anything that would tend to undermine the credibility of Agent Bellis’s testimony. The Court reviewed the report in camera and ruled that nothing in the file could constitute impeachment material or matter that would assist in cross-examination to attack the credibility of Agent Bellis. Accordingly, it declined to compel discovery of the confidential report. D. Prosecutor’s Remarks At the close of Miller’s trial, the prosecutor made a rebuttal statement summarizing the evidence presented and asking the jury to return a guilty verdict. On two occasions the defense objected to remarks made by the prosecutor to the jury. 1 In the first objection, 1 The first remark by the prosecutor to which the defense took exception was: MR. DOUGLAS: The defense says, well, why didn’t they fingerprint him? And the Government would contend, they had the person, you heard the [] testimony that we were focusing on the one person we knew who lived at this address or had access to this address, this defendant. And when they went to that location, what did they find? They found these items. Was there anybody else there? No. Was there testimony that anybody else lived there? No. (Emphasis added.) The second remark was: MR. DOUGLAS: And when you stop to think and apply your common sense and your life experience to that, you will come up with one conclusion and one conclusion only and that is the same conclusion that the Government is asking you to do and that is tell Anthony Miller that on 7 Miller’s counsel claimed that the prosecutor was improperly shifting onto the defense the burden of proof on the issue of whose residence was Apartment 72. This, he argued, was an element that formed part of the prosecution’s burden. Following a sidebar, the trial judge overruled this objection. In the second objection, moments later, Miller’s counsel moved for a mistrial on the ground that the prosecutor had asked the jury to “send a message” by convicting Miller. The trial judge summarily overruled this objection, but also immediately clarified to the jury that “we aren’t sending messages. There is one thing you have to do here and decide whether or not the Government has proven over this couple days, that the defendant was guilty of the crime charged in Count 1 of the indictment beyond a reasonable doubt.” II. Analysis A. Probable Cause Because the District Court’s decision that the search warrant was supported by probable cause was based on the facts contained in the search warrant affidavit—the veracity of which Miller and Clark do not challenge—we afford plenary review to their claims of error. United States v. Burton, 288 F.3d 91, 97 (3d Cir. 2002). Miller’s claim that the affidavit improperly relied on the uncorroborated information of a first-time CI to establish the required nexus between the property to be searched and contraband sought December 8, 1999, that having all of this was absolutely wrong. (Emphasis added.) 8 leaves us scratching our heads. Even a cursory review of the affidavit and the facts surrounding the BNI investigation reveals that, to the contrary, before applying for the warrant the agents actively sought to corroborate the CI’s information and to link the drug transactions on Creighton Street to Apartment 72 of Parkside Village. Probable cause is a “practical, common-sense decision” and may be found whenever “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Because the information in the affidavit could reasonably be read to show that there was more than a fair probability that drugs would be found in the apartment, we affirm the District Court’s conclusion that the issuing judge’s probable cause determination should be upheld. Accordingly, the District Court’s refusal to suppress evidence obtained during execution of the search warrant was entirely proper. B. Knock-and-Announce Our inquiry into whether the manner in which the agents executed the warrant was consistent with the Fourth Amendment’s protection from unreasonable searches is guided by the Supreme Court’s recent decision in United States v. Banks, 540 U.S. 31, 124 S. Ct. 521 (2003). There the Court reiterated its holdings from previous cases that constitutionality of the manner in which a search is performed is subject to a “totality of circumstances” analysis. Banks, 124 S. Ct. at 525. This analysis focuses on reasonableness, a sensible standard when one considers that the Amendment itself relies 9 on the same language. U.S. Const. amend. IV (“The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated . . . .”). The reasonableness of a warrant’s execution turns in significant measure on the significance of the exigency revealed by the circumstances as they are perceived by the officers. In Banks, the Supreme Court affirmed the constitutionality of a search remarkably similar to ours. The officers arrived at the home of a suspected cocaine dealer on a weekday afternoon, rapped hard on the door, and called out “police search warrant.” Hearing nothing, and waiting for 15 to 20 seconds with no answer, the officers broke open the front door with a battering ram and entered the premises. The Supreme Court emphasized that “what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant [exigent] circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain.” 124 S. Ct. at 527. We consider reasonable the 10-second wait in this case even though it is shorter than the 15 to 20 seconds approved in Banks. That is because the agents in this case faced the same exigency as in Banks, along with two others: their knowledge that someone inside the apartment had already seen them approaching, and their hearing of 10 scurrying footsteps inside the apartment that were not headed in the direction of the door. 2 We therefore affirm the District Court’s ruling that, under the facts of this case, the manner in which the search was performed did not violate appellants’ Fourth Amendment rights. C. The Personnel File Miller argues that we should independently review the contents of Agent Bellis’s personnel file to verify that there was no admissible material in it that could have been used by the defense to undermine Bellis’s credibility with the jury. Even assuming such a review is within our jurisdiction—the Government argues that it was waived when Miller’s counsel agreed to abide by the outcome of the judge’s in camera review and did not object when the judge returned with his ruling—we decline to review the file because its contents would not produce a different result at trial. Giglio v. United States, 405 U.S. 150, 154–55 (1972); United States v. Milan, 304 F.3d 273, 287 (3d Cir. 2002). Agent Bellis’s testimony to the jury served two functions in the prosecution’s case. First, he testified to Miller’s presence at Apartment 72 on one of the days of the stakeout, November 19, 1999. While this information may have been important to the initial finding of probable cause to issue the warrant, it did not play a great role, nor does it seem even to have been contested, at trial. The second function of Bellis’s testimony was to 2 The Supreme Court noted with approval United States v. Markling, 7 F.3d 1309 (7th Cir. 1993), a case where a wait as short as seven seconds was considered reasonable under the totality of circumstances. Banks, 124 S. Ct. at 526 n.5. 11 explain why the agents forcibly broke open the door of the apartment when executing the search warrant. While Miller questions the correctness of that conduct, he does not dispute the factual circumstances leading up to it. As such, even if we were to discover that the personnel file contained admissible information tending to undermine Bellis’s credibility, and even if the jury had disbelieved the witness and entirely discounted both aspects of his testimony, it would not be enough to call into question the sufficiency of the evidence upon which the jury could rely to convict Miller. That evidence was overwhelming, and there is no reasonable probability that the outcome of the trial would have been different but for Bellis’s testimony. D. Prosecutor’s Remarks Miller’s contention that the prosecutor’s rebuttal comments shifted the burden of proof to the defendant and improperly asked the jury to base its considerations on something other than the evidence is simply meritless. The prosecutor’s first remark, that Miller had not shown that anyone else occupied the apartment, was spoken to underscore Miller’s failure to support his contention at trial that he did not live in Apartment 72. In that context, the prosecutor was merely highlighting a weakness in the defense’s theory rather than shifting any evidentiary burden. The trial judge rightly overruled M iller’s objection to the prosecutor’s mention of this weakness. Even more baseless is Miller’s contention that the prosecutor urging the jury to tell Miller that having nearly 60 grams of crack cocaine in his apartment “was absolutely 12 wrong” somehow amounted to directing the jury to base its considerations on something other than the evidence. When asking the jury to return a guilty verdict, it is not fitting for a prosecutor to describe a guilty verdict as expressive of the jury’s moral disapprobation of a defendant’s conduct. But such a rhetorical device was harmless in this case, especially when cured by the judge’s immediate admonition to the jury that “[t]here is one thing you have to do here and [that is to] decide whether or not . . . the defendant was guilty of the crime charged in Count 1 of the indictment beyond a reasonable doubt.” See Gov’t of V.I. v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985) (defendant was not prejudiced by prosecutor’s closing argument in light of curative jury instruction). III. Conclusion For the reasons stated, we affirm the District Court’s denial of appellants’ motions to suppress evidence and Miller’s motion for a new trial. Accordingly, the convictions of Tracy Clark and Anthony Miller are affirmed. 13	{ "pile_set_name": "FreeLaw" }
172 F.3d 690 Unempl.Ins.Rep. (CCH) P 16162B, 99 Cal. Daily Op.Serv. 2429,1999 Daily Journal D.A.R. 3191Loyd E. GATLIFF, Jr., Plaintiff-Appellant,v.COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,Defendant-Appellee. No. 97-36161. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 12, 1999.Decided April 2, 1999. D. James Tree, Yakima, Washington, for the plaintiff-appellant. Richard H. Wetmore, Social Security Administration, Seattle, Washington, for the defendant-appellee. Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-96-01656-JO. Before: LEAVY, McKEOWN, and WARDLAW, Circuit Judges. McKEOWN, Circuit Judge. 1 Does a string of sequential, short-term jobs constitute "substantial gainful activity" under the Social Security Act (the "Act")? 42 U.S.C. § 1382c(a)(3)(A). Put more directly, does a claimant's cobbling together some 150 different jobs over his remaining 25-year work life constitute meaningful, sustained employment? 2 We must decide whether a Social Security claimant's ability to perform successive jobs, generally lasting no more than two months, renders him capable of substantial gainful activity. We conclude that it does not, and therefore reverse the judgment of the district court. Substantial employment cannot be pieced together from a collection of insubstantial attempts. This is one instance in which the maxim e pluribus unum does not apply. BACKGROUND 3 Loyd E. Gatliff, Jr. is functionally illiterate and suffers from several severe mental impairments, including antisocial personality disorder, developmental reading and expressive language disorder, and probable attention deficit and hyperactivity disorder. Although he completed eleventh grade, with the last several years in special education, early on he was certified as a "mentally retarded child for special class placement." During the 15 years prior to his claimed disability, Gatliff was employed sporadically and held 20-30 jobs. He was terminated from at least half of those jobs, the longest of which lasted six to eight months, due to anger problems and conflicts with supervisors or co-workers. 4 Gatliff applied for disability insurance and supplemental security income benefits, claiming disability based on mental impairment, a fused vertebra in his neck, a bad knee and a bad back. After both applications were denied, Gatliff requested and was granted an administrative hearing. During the hearing, Gatliff and his wife testified about his neck and back pain as well as his antisocial behavior and difficulty controlling his anger. Gatliff's wife testified that Gatliff regularly has fits of anger, which involve throwing and kicking things and punching doors and walls. 5 After considering conflicting evidence about Gatliff's ability to work, the administrative law judge ("ALJ") found that Gatliff could not return to his previous work in logging, construction or landscaping. The ALJ concluded that he could perform light work but that his capacity was reduced by his social and intellectual limitations. Much of the hearing focused on the practical impact of Gatliff's mental limitations. In response to the ALJ's hypothetical question, which assumed that Gatliff was capable of a job demanding only "light work," "simple and repetitive" tasks, and "little interaction with co-workers and supervisors," a vocational expert testified that Gatliff could perform the jobs of office cleaner or partition assembler. However, in response to a question posed by Gatliff's attorney, the vocational expert conceded that Gatliff could only be expected to stay in any one job for a "couple of months" before being fired as a result of his mental impairments. The expert also testified that Gatliff's pattern--the ability to obtain, but not maintain, jobs--would continue. 6 The ALJ determined that Gatliff was capable of performing light work and was therefore not disabled. The Appeals Council declined Gatliff's petition for review and the district court upheld the ALJ's decision, concluding "as a legal matter, [that] sequential full-time employment can constitute substantial gainful employment." On appeal, Gatliff contends that his inability to maintain employment for longer than several months in any one job renders him incapable of engaging in substantial gainful activity and that he is therefore disabled under the Act.1 STANDARD OF REVIEW 7 We review de novo the district court's order upholding the Commissioner's denial of benefits, Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.1997), and will set aside the Commissioner's findings only "if they are based on legal error or are not supported by substantial evidence," Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998). ANALYSIS 8 Like bookends, two key findings frame our analysis: (1) the ALJ found that Gatliff's residual functional capacity for the full range of light work is reduced by his mental impairments, and (2) the Commissioner of the Social Security Administration (the "Commissioner") concedes that Gatliff likely cannot maintain any single job for more than approximately two months. The conclusion: Gatliff is employable, but only for short periods. The issue then is one of duration and what period of employment satisfies the requirements of the Act. Disability Under the Social Security Act 9 Under the Act, disability is defined as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The Social Security Administration's ("SSA") regulations include guidelines to determine whether work qualifies as substantial gainful activity: 10 We will generally consider work that [the claimant] is forced to stop after a short time because of [his] impairment as an unsuccessful work attempt and [his] earnings from that work will not show that [he is] able to do substantial gainful activity. 11 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1) (1999). The concept is further refined in Social Security Ruling 84-25.2 The SSA generally presumes that a work effort lasting three months or less because of the claimant's impairments is an "unsuccessful work attempt," and is not considered evidence of an ability to engage in substantial gainful activity. SSR 84-25, 1984 WL 49799 (1984). Substantial Gainful Activity 12 The Commissioner concedes that Gatliff "has a work history showing that he performs a job for a duration of about two months," and does not dispute that the pattern will continue, but contends that Gatliff is capable of substantial gainful activity because he is not precluded from moving from one job to the next job after termination. We reject the Commissioner's argument. 13 We begin by noting that no Ninth Circuit authority controls the outcome of this case. The Commissioner points to Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir.1990), as analogous precedent. Keyes, however, is not controlling. Keyes involved part-time (five and a half hours per day, five and a half days per week), long-term (at least ten years) employment, whereas this case involves full-time, short-term employment. Unlike the claimant in Keyes who worked over ten years, Gatliff can work full-time but is incapable of sustaining employment for a period longer than approximately two months. 14 In Tylitzki v. Shalala, 999 F.2d 1411 (9th Cir.1993), we considered whether a claimant's ability to hold jobs successively for eleven months at a time before being fired because of his alcoholism constituted substantial gainful activity. Id. at 1415. We held that "such a series of jobs would constitute substantial gainful activity when they are of significant duration as under the terms of the ALJ's hypothetical [i.e., 11 months]." Id. (emphasis added). While Tylitzki establishes that a series of jobs, each lasting almost a year, could constitute substantial gainful activity, it teaches nothing about successive jobs of a substantially less significant duration. 15 Other circuits looking at this question have required that a claimant be able not only to obtain a job, but to maintain the job for a significant period of time. In Singletary v. Bowen, 798 F.2d 818 (5th Cir.1986), for example, the Fifth Circuit concluded that: 16 A finding that a claimant is able to engage in substantial gainful activity requires more than a simple determination that the claimant can find employment and that he can physically perform certain jobs; it also requires a determination that the claimant can hold whatever job he finds for a significant period of time. 17 Id. at 822. The claimant in Singletary, like Gatliff, suffered from a personality disorder that prevented him from holding a job for a long period of time.3 The ALJ nevertheless found that the claimant was capable of substantial gainful activity because some of his doctors determined that he was "employable." Id. Because it was unclear whether the record would support a finding that Singletary could remain employed for "significant periods of time," the Fifth Circuit reversed and remanded for further consideration of that issue. Id. at 823.4 18 In Tennant v. Schweiker, 682 F.2d 707 (8th Cir.1982), another analogous case, the Eighth Circuit reversed the denial of disability benefits where the claimant, who suffered from a personality disorder, had held forty-six jobs in twelve years of employment. Id. at 710-11. Framing the issue as "whether the claimant has the emotional capacity to engage in sustained employment," the court found that, despite the claimant's physical capacity to perform light work, there was no evidence of "work that [the claimant could] perform for a sustained period," and therefore no evidence that the claimant could engage in "substantial gainful employment." Id.5 19 The Third, Fourth, Sixth, Tenth and D.C. Circuits have similarly imposed a durational requirement on the concept of substantial gainful activity. See, e.g., Kangas v. Bowen, 823 F.2d 775, 778 (3rd Cir.1987) (reversing and remanding where ALJ did not consider whether claimant could maintain "regular, continuing or sustained" employment in light of his frequent hospitalizations); Wilson v. Richardson, 455 F.2d 304, 307 (4th Cir.1972) (finding that claimant's holding eleven jobs in three years "may demonstrate not his ability, but his inability to engage in substantial gainful activity");6 Parish v. Califano, 642 F.2d 188, 192 (6th Cir.1981) ( "The phrase 'substantial gainful activity' implies employment with some degree of regularity."); Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir.1994) (quoting Singletary standard); Pagan v. Bowen, 862 F.2d 340, 350 (D.C.Cir.1988) ("The critical question is not whether the claimant has been stable enough to work for short periods, but whether he or she is able 'to hold whatever job he finds for a significant period of time.' ") (quoting Singletary, 798 F.2d at 822). 20 We are persuaded by the reasoning of our sister circuits that substantial gainful activity means more than merely the ability to find a job and physically perform it; it also requires the ability to hold the job for a significant period of time. It requires no leap to conclude that two months is not a significant period. Indeed, the SSA considers jobs that end within three months because of the claimant's impairments to be "unsuccessful work attempts," and does not consider such short-term jobs as evidence of an ability to engage in substantial gainful activity. SSR 84-25;7 see also Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir.1996) ("The 'unsuccessful work attempt' concept was designed as an equitable means of disregarding relatively brief work attempts that do not demonstrate sustained substantial gainful employment."). If a job of less than three months does not constitute substantial gainful activity when considering the claimant's past work history, the same holds true with regard to prospective employment. 21 Where it is established that the claimant can hold a job for only a short period of time, the claimant is not capable of substantial gainful activity. The practical effect of upholding the Commissioner's view in this case demonstrates the point: assuming that Gatliff, who is now under 40, could work for another 25 years, he would have to perform 150 jobs, at a rate of six jobs per year, to remain employed. Such a result strains both common sense and the practical realities of the labor market. Although we do not purport to define exactly how long a period of employment must last to be considered "significant," a job of two-months' duration is certainly insufficient. The concept of substantial gainful activity requires more and consequently we hold that Gatliff was not capable of "substantial gainful activity." Date of Onset 22 Although Gatliff alleged a date of onset of June 1, 1991 in his application for benefits, he agreed at oral argument to accept the earliest onset date supported by the medical evidence in the record--the date of his examination by Dr. Lawrence J. Lyon. Accordingly, for purposes of calculating benefits, Gatliff's date of onset shall be September 29, 1993. 23 The judgment of the district court is REVERSED and the case is REMANDED to the district court with instructions to remand to the Social Security Administration for an award of benefits consistent with this opinion. 1 Because we find that Gatliff is disabled within the meaning of the Act due to his inability to engage in substantial gainful activity, we do not consider his alternative argument that he is unable to sustain employment without third-party intervention 2 Social Security Rulings ("SSR") are "final opinions and orders and statements of policy and interpretations" that have been adopted by the Administration. 20 C.F.R. § 402.35 (1999). Once published, as was Ruling 84-25, these rulings are binding precedent upon ALJs. Heckler v. Edwards, 465 U.S. 870, 873 n. 3, 104 S.Ct. 1532, 79 L.Ed.2d 878 (1984) 3 The court in Singletary did not specify how long the claimant could hold a job--only that he was unable to maintain employment for "long periods of time," for "significant periods of time," and for "more than limited periods of time." 798 F.2d at 822-23 4 See also Moore v. Sullivan, 895 F.2d 1065, 1069-70 (5th Cir .1990) (reversing and remanding in light of Singletary for a determination of whether claimant "will be able to maintain employment for significant periods of time"); Leidler v. Sullivan, 885 F.2d 291, 293-94 (5th Cir.1989) (reversing and remanding in light of Singletary where ALJ did not consider that claimant "is disabled if he can perform work but not enjoy sustained employment because of his condition") 5 See also Dix v. Sullivan, 900 F.2d 135, 138 (8th Cir.1990) (reversing and remanding for award of benefits where claimant was "not capable of holding a job for a significant period of time"); Parsons v. Heckler, 739 F.2d 1334, 1340 (8th Cir.1984) ("The Secretary's determination regarding the ability of a claimant to perform jobs in the national economy must take into account the actual ability of the claimant to find and hold a job in the real world.") 6 We agree with Gatliff that Wilson is not distinguishable on the ground that it "involve[s] working a few hours a day with interruptions," as argued by the Commissioner. Wilson, like this case, involved a claimant who could work full-time but short-term. Wilson, 455 F.2d at 307 7 Under SSR 84-25, in order for a work attempt to be considered "unsuccessful," the attempt must be preceded by a period of unemployment of at least 30 consecutive days or a "forced" change "to another type of work or another employer." Because it is undisputed that Gatliff would be unlikely to hold any job for more than approximately two months, the rationale of SSR 84-25 applies	{ "pile_set_name": "FreeLaw" }
973 F.Supp. 691 (1997) UNITED STATES of America, Plaintiff, v. Yechiel BART and Arthur Stewart, Defendants. Criminal No. SA-94-CR-244. United States District Court, W.D. Texas, San Antonio Division. August 27, 1997. 692 Christopher L. Varner, U.S. Dept. of Justice, Fraud Section, Criminal Div., Boston, MA, James A. Baker, U.S. Dept. of Justice, Fraud Section, Criminal Div., Washington, DC, for U.S. Roy R. Barrera, Sr., Roy R. Barrera, Jr., Nichols & Barrera, P.C., San Antonio, TX, for Arthur Stewart. Ronald F. Ederer, Reed, Ederer & Moore, P.C., San Antonio, TX, for Yehiel Bart. AMENDED SENTENCING ORDER FOLLOWING REMAND FROM THE FIFTH CIRCUIT COURT OF APPEALS BIERY, District Judge. The matters before the Court are the sentences to be imposed on the defendants Yechiel Bart, formerly of Israel and now living in New Jersey and Arthur Stewart, of Hondo, Texas, who were convicted by a jury of non-violent, non-drug related white collar crimes. Since the original judgments of December 1, 1995, two events have occurred necessitating and affecting the amended judgments herein: 1) The Fifth Circuit Court of Appeals correctly observed this Court was overly vague in its reasons for the extremely rare downward departures granted these defendants. United States v. Bart, No. 96-50007, op. at 4, 117 F.3d 1416 (5th Cir. May 29, 1997). The Court pleads guilty to brevity and vagueness in its original judgments and offers in mitigation the burgeoning caseload visited upon this and other federal trial courts as a result of continuing federalization of the criminal and civil law. Nevertheless, the Court will set forth in extensive detail its reasons for the sentences imposed. 2) The United States Supreme Court in the Koon v. United States decision, ___ U.S. ___, ___, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996), restored a modicum of discretion to the federal trial bench in rendering just sentences within the spirit of the law as opposed to the hypertechnical "how many angels fit on the head of a pin" approach of those who worship at the altar of the letter of the law. To seek justice, to address the appellate court's concerns, to apply the discretionary standards delineated in Koon, and to cure the insomniac, the arguments and evidence proffered by both sides have been considered and this opinion is delivered as a part of the judgments in this case. HISTORICAL ROOTS Because of a statistically supported perception of disparity in sentences within the 693 statutory ranges of punishment and a good faith desire to seek more perfect justice, Congress enacted the federal sentencing guidelines. 18 U.S.C. § 3553(a)(2)(A) to (D) (Sentencing Reform Act of 1984 provides for development of guidelines which further basic goals of criminal punishment: deterrence, incapacitation, just punishment, rehabilitation); see United States Sentencing Commission, Guidelines Manual, Ch. 1, Pt. A, intro. comment, at 1 (November 1995) Experience shows the overwhelming majority of defendants are in fact sentenced within the guideline ranges and it is a rarity for the federal trial bench, which is after all in the best position to decide, to depart upwardly or downwardly (unless on motion of the government because of substantial assistance). See 1995 U.S. SENTENCING COMM'N ANN. REP. table 31, at 90 (Fifth Circuit: 5.1% downward departures). One might argue inferentially from these numbers, and this author affirmatively believes, the sentencing guideline system works well only slightly less than 100% of the time. But the Judeo-Christian roots spread to our modern law have rejected the Pharisees' view exalting only the letter, unbalanced by the spirit, of the law. If federal courts are to be more than a mere modern version of the Sanhedrin, those roots must necessarily be nourished and nurtured with the water of common sense, society's interests, mercy and a macro, as opposed to micro, view of the purposes of criminal punishment. In the details of the trees of technical rule-making to achieve the admirable goal of avoiding disparities in sentencing, we should not lose sight of the forest of justice. To do otherwise through a rote, computer application of the guideline grid would cause the flavor of justice to become like tasteless store bought tomatoes compared to the summer joy and plumpness of homegrown. THE ANALYTICAL TRELLIS FOR DISCRETION IN SENTENCING AFTER KOON The Fifth Circuit traditionally used the review power given it under the Sentencing Reform Act to reverse downward departures absolutely. Notably, the appellate court changed this practice in 1996 when it affirmed a downward departure in a money laundering case. In United States v. Walters, 87 F.3d 663, 664 (5th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 498, 136 L.Ed.2d 390 (1996), an insurance agent and a member of the governing body of a Louisiana parish were convicted by a jury of mail fraud, money laundering and conspiracy for failing to disclose payment of a solicitation fee. The government appealed the agent's twenty-four month sentence for money laundering. Id. at 671. The Fifth Circuit found the downward departure reasonable and not disproportionate in the light of the district court's conclusion the guideline calculation overstated the seriousness of the offense. See id. at 671-72. Ten days after the Fifth Circuit issued its less restrictive standard regarding downward departure in the Walters money laundering case, the United States Supreme Court similarly enlarged the amount of discretion afforded the sentencing judge. Koon, ___ U.S. at ___, 116 S.Ct. at 2043. In Koon, the Supreme Court created a framework for analyzing when departures may be appropriate. See Paul J. Hofer, Discretion to Depart after Koon v. United States, 9 FED. SENT. REP. 8 (July/August 1996); see also Larry Allen Nathans, Grid & Bear It, THE CHAMPION, July 1997, at 31. A court must inquire into the following matters when considering a downward departure: * What features of this case potentially take the case outside of the guidelines' heartland and make it a special or unusual case? * Has the Sentencing Commission forbidden departures based on those features? * If not, has the Sentencing Commission encouraged departures on those features? * If not, has the Sentencing Commission discouraged departures based on those features? Koon, ___ U.S. at ___, 116 S.Ct. at 2045. To resolve this inquiry, the totality of the circumstances must be considered, including the many facts which bear on the outcome of the case. Id. at ___, 116 S.Ct. at 2046. The sentencing court must identify any "special" features of the case which may form the 694 basis for departure. See id. If the guidelines forbid departures based upon a feature, a court cannot grant a departure.[1] If the guidelines encourage departures based upon a special factor, a court may depart if the applicable guideline does not already account for the factor.[2] If the special factor is a discouraged factor[3], or an encouraged factor already taken into account by the guidelines, a court should depart only "if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Koon, ___ U.S. at ___, 116 S.Ct. at 2045. If the factor is not identified in the guidelines, a court must determine if the factor takes the case outside the heartland. Id. The sentencing guidelines allow a court to depart downward from the guideline range if the court finds an aggravating or mitigating circumstance which was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and which should result in a sentence different than that described. 18 U.S.C. § 3553(b). In determining whether a circumstance was adequately taken into consideration by the Commission, the sentencing judge shall consider the sentencing guidelines, as well as policy statements and official commentary of the Sentencing Commission. Koon, ___ U.S. at ___, 116 S.Ct. at 2044. This analysis considers the structure and theory of the relevant guideline and the guidelines as a whole. Id. at ___, 116 S.Ct. at 2045. Whether a factor is present to a degree not adequately considered by the guidelines, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are questions determined in large part by comparison with the facts of other guideline cases. United States v. Wells, 101 F.3d 370, 374 (5th Cir.1996). The factors warranting departure in a particular case do not exist in isolation, but may well converge to create the unusual situation not contemplated by the Commission. United States v. Parham, 16 F.3d 844, 848 (8th Cir.1994). Koon makes clear "[t]he appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion." ___ U.S. at ___, 116 S.Ct. at 2043. THE FRUIT OF THIS COURT'S EXPERIENCE Recognizing the sentencing judge to have the perspective of seeing the humanity involved in a criminal trial, as opposed to a paper record, the Supreme Court in Koon deferred to the sentencing court's discretion based on the experience of judicial trial officers. "To ignore the district court's special competence about the ordinariness or unusualness of a particular case would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case." Koon, ___ U.S. at ___, 116 S.Ct. at 2047 (citation omitted). Former Commissioner Breyer, writing as Chief Circuit Judge in United States v. Rivera, 994 F.2d 942, 951 (1st Cir.1993), emphasized the importance of deferring to the sentencing judge's "superior feel for the case," which, when reduced to writing, "can help the Commission determine whether, and how, Guidelines revision should take place." In the past three and one-half years, the undersigned has sentenced approximately one thousand (1,000) felony defendants within the guideline ranges. Perhaps two or three dozen defendants received downward departures of a few months because they had served most of their sentences and were 695 subject to imminent deportation to their home countries, thus obviating the need for American taxpayers to house and feed them further and making jail space available for new arrestees. This case is the only instance in which a downward departure of this degree has been granted in this Court's federal experience. Moreover, for over fifteen years prior to 1994, the undersigned sentenced and reviewed the punishments of thousands of misdemeanor and felony defendants in Texas trial and appellate courts. Accordingly, the punishment decision reached herein is one neither lightly reached nor without a significant experiential base of other cases. SEEDS OF THE CONTROVERSY Mr. Stewart and Mr. Bart were accused of offenses resulting from the sale of aircraft parts to the Israeli armed forces. The Israeli Ministry of Defense Mission to the United States ("MODNY") is an arm the Israeli government military defense team. Mr. Bart was one of approximately 225 individuals who worked as a buyer for MODNY, primarily procuring weapons and support items for the Israeli armed forces. One of the companies from which Mr. Bart made purchases, Gary Aerospace, was owned by the Stewart family and run by Mr. Stewart. Gary Aerospace, located in Hondo, Texas, was a privately held company engaged in the repair and refitting of aircraft engines. Although the defendants together were acquitted on a total of thirty counts of criminal activity, a jury found defendants used their professional and managerial discretion to obtain monies fraudulently through manipulation of the purchase orders relating to the Israeli military program. Mr. Stewart and Mr. Bart were convicted of fraud, in violation of 18 U.S.C. § 1341; wire fraud, in violation of 18 U.S.C. § 1343; interstate transportation of property taken by fraud, in violation of 18 U.S.C. § 2314; and of engaging in monetary transactions in property derived from specified unlawful activity, or money laundering, in violation of 18 U.S.C. § 1957. Because these offenses are closely related, U.S.S.G. § 3D1.2 groups them together for purposes of sentencing and provides the greatest base offense level for any of the grouped offenses should be used for sentencing. Here, the base level for money laundering under U.S.S.G. § 2S1.2 was the greatest. As outlined in the presentence investigation report, the Court found there is sufficient evidence to determine a reasonable estimate of the loss, given the available information, is $76,000. Mr. Bart has paid his share ($36,528) of restitution and has paid the $650 special assessment fee. Mr. Bart and Mr. Stewart are viewed as the only individuals who directly profited from their fraudulent activities and no offense was committed by a criminal organization. THE INTERTWINED VINES OF MR. STEWART AND MR. BART The Court first addresses factors common to Mr. Stewart and Mr. Bart: 1) To determine whether a case falls outside the heartland, a court may inquire what type of case a particular guideline is intended to cover. Paul J. Hofer, Discretion to Depart after Koon v. United States, 9 FED. SENT. REP. 10 (July/August 1996). This inquiry focuses on the legislative history and guideline commentary surrounding the particular offense, in this case, the money laundering statutes. Id.; see also Koon, ___ U.S. at ___-___, 116 S.Ct. at 2044-46. Congress enacted the money laundering statutes, 18 U.S.C. §§ 1956 and 1957, as part of the Anti-Drug Abuse Act of 1986. Debates surrounding their passage reveal the money laundering statutes were intended to combat the large amounts of money being "laundered" by the drug trade and organized crime.[4] Moreover, although the statute covers 696 many types of underlying conduct, commentators agree money laundering has been traditionally associated with large drug enterprises. See United States v. Ferrouillet, No.Crim. A. 96-198, 1997 WL 266627, at 5 (E.D.La. May 20, 1997) (quoting extensively from Senate hearings and related commentary). As to the structure of the relevant money laundering guideline, the commentary to U.S.S.G. § 2S1.2 states the legislative history of 18 U.S.C. § 1957 influenced the drafting of the guideline: "In keeping with the intent of the legislation, this guideline provides for substantial punishment." U.S.S.G. § 2S1.2, comment (background), at 207. "It is apparent, therefore, that the money laundering guideline was set at a relatively severe base offense level to counteract the illegal drug trade in this country." United States v. Caba, 911 F.Supp. 630, 635 (E.D.N.Y.1996), aff'd, 104 F.3d 354 (2d Cir. 1996). At least one district court in this circuit agrees. Ferrouillet, 1997 WL 266627, at 6 (adopting reasoning of Caba decision). A 1992 memorandum written by the Sentencing Commission's Money Laundering Working Group reinforces this view: "[I]t appears that the base offense levels ... reflect a view that [the money laundering statutes] would generally be applied primarily to traditional, and perhaps large-scale, professional money launderers." U.S. SENTENCING COMM'N, MONEY LAUNDERING WORKING GROUP, REP. ON INFORMATION GATHERING AND INITIAL FINDINGS 17 (October 14, 1992). The working group proposed amendments which would have required that the money laundering base offense levels correlate more closely with the offense levels applicable to the underlying conduct. See id. at 20; see also Act of October 30, 1995, Pub.L. No. 104-38, 1995 U.S.C.C.A.N. (109 Stat.) 335, 344 (proposed amendments submitted to Congress by Sentencing Commission on May 1, 1995). Although Congress ultimately rejected these arguments, the memorandum and proposed amendments are evidence of the Commission's concern the money laundering statutes were being unequally applied to dissimilar criminal offenses and dissimilar offenders. See 1995 U.S.C.C.A.N. (109 Stat.) 344 (disapproving proposed amendments). Additional indicia these guidelines were intended for large scale criminal operations involving sizeable amounts of money is found in the structure of the money laundering guidelines. The lowest base offense level of guideline § 2S1.2 starts at a sizeable $100,000. The base offense level increases only when the value of funds increases to $200,000, and then $350,000, $600,000, $1,000,000 and $2,000,000 and greater. Given that the initial offense level does not differentiate between funds less than $100,000, and the severity of the sentence increases only when the value of the funds increases by $100,000 or more, it appears the Commission targeted large scale operations when drafting the money laundering guidelines. The legislative history, the Sentencing Commission's commentary to U.S.S.G. § 2S1.2, the memorandum and proposed amendments of the working group, as well as the structure of the guidelines themselves, support the conclusion the money laundering guidelines are intended to apply to large scale drug and organized crime enterprises laundering large amounts of money. This case does not involve any drug or organized crime enterprise and the amount of so-called laundered money was $76,000, a sum falling within the lowest base offense level of the guideline. Mr. Stewart and Mr. Bart are neither drug dealers nor organized crime members, nor were they involved in a massive money laundering operation. Rather, their schemes consisted of a businessman and a non-practicing lawyer defrauding the 697 government of an amount on the lowest downward side of the prohibited value of funds. In its resentencing brief, the government cites examples of pre-Koon cases where the defendants were sentenced under the money laundering guidelines for non-narcotic activities. At least two circuit courts have held that Koon provides an opportunity for revisiting downward departure issues decided in the government's favor prior to Koon. In United States v. Brock, 108 F.3d 31 (4th Cir.1997), and United States v. Kalb, 105 F.3d 426 (8th Cir.1997), the Fourth and Eighth circuits considered downward departure issues which, under existing pre-Koon precedent, had been deemed improper grounds for downward departures. In each case, the appellate court concluded Koon had implicitly overruled existing precedent, requiring that the relevant departure issues be reconsidered. Brock, 108 F.3d at 35; Kalb, 105 F.3d at 428-29. Hence, both Brock and Kalb provide authority for concluding any case decided prior to Koon, which addressed a factor the Guidelines do not expressly prohibit as a basis for departure and held the factor could never justify downward departure, must be reconsidered in light of Koon. See Larry Allen Nathans, Grid & Bear It, THE CHAMPION, July 1997, at 49; see also Sentencing Guidelines, A.B.A. SEC. CRIM. JUST. NEWSL. (WHITE COLLAR CRIME COMMITTEE), July 1997, at 11-12. Another consideration of the heartland analysis is the type, or profile, of the defendant typically prosecuted under the statute. Paul J. Hofer, Discretion to Depart after Koon v. United States, 9 FED. SENT. REP. 10 (July/August 1996). This profile reflects an examination of prosecutorial practices and the types of crimes prosecuted in federal courts. The vast majority of money laundering convictions nationwide result from pleas of guilty and a full 16.4% of those convicted receive fully probated sentences. U.S. Sentencing Comm'n, MONFY, tables 3, 4 (Datafile 1995). The United States Attorney's Manual, the United States Government Manual and Department of Justice ("DOJ") news releases are other indicators of the usual or ordinary type of money laundering defendant. These publications are probative of how the government views the intentions of Congress in drafting the statutes and the Commission in drafting the guidelines and also are instructive as to how the government believes the statutes should be applied. The DOJ United States Attorney's Manual provides the money laundering section of the United States Attorney's Office was created to prosecute money laundering cases and that only particularly complex and sensitive cases should be prosecuted under 18 U.S.C. § 1957. U.S. DEP'T OF JUST., U.S. ATTY'S MANUAL, ORG. OF THE CRIM. DIV. 9-3.400. This is, the government manual states, to ensure uniform application of the money laundering statutes. U.S. DEP'T OF JUST., U.S. GOV'T MANUAL 335, 341 (1996/1997). Moreover, within the last five years, the DOJ altered its internal policy for charging money laundering counts in financial cases such as this. The policy, effective only since the fall of 1992, mandates "[i]n any case where the conduct to be charged as `specified unlawful activity' under §§ 1956 and 1957 consists primarily of one or more financial or fraud offenses, and where the financial and money laundering offenses are so closely connected with each other that there is no clear delineation between the underlying financial crime and the money laundering offense, no indictment or complaint may be filed without prior consultation with the Money Laundering Section." U.S. DEP'T OF JUST., U.S. ATTY'S MANUAL, CRIM. DIV. (MONEY LAUNDERING BLUESHEET) 9-105.000, at B3. This new policy advises prosecutors that where the same financial transaction is the basis for the specified unlawful activity and the laundering charge, no money laundering charge should be brought. Id. Although the Court does not contend it has the authority to enforce on behalf of the defendants internal policies of the DOJ, the Department's recognition of this problem further supports the conclusion this case presents a situation not adequately considered by the Sentencing Commission in formulating the guidelines. DOJ news releases focus on the success the government has had in prosecuting large scale money laundering operations. See U.S. DEPT. OF JUST., NEWS RELEASE, MIAMI FEDERAL GRAND JURY INDICTS FOUR IN MULTI-MILLION 698 DOLLAR "FREON" EXCISE TAX FRAUD CASE, 1996 WL 499535 (September 5, 1996); U.S. DEP'T OF JUST., NEWS RELEASE, HUNDREDS OF VICTIMS OF AN ADA BUSINESS SCAM GET MONEY BACK, 1996 WL 355649 (June 28, 1996); U.S. DEP'T OF JUST., NEWS RELEASE, FORMER ORGANIZED CRIME FIGURE SENTENCED IN BILLION DOLLAR FUEL TAX FRAUD SCHEME, 1996 WL 307912 (June 7, 1996). Given these government pronouncements, the decision to prosecute Mr. Stewart and Mr. Bart under the money laundering statute appears to deviate from prosecutorial practices and may controvert not only the government manual, but also two objectives of the Commission, uniformity and proportionality in sentencing. USSG Ch. 1, Pt. A, intro. comment, at 2. This prosecutorial discretion provides the government with the ability to seek disparate sentences in spite of similar criminal offenses committed by similar offenders. Moreover, this case was prosecuted by the fraud section of the United States Attorney's Office rather than the section created and designated to prosecute money laundering crimes. By commenting on the government's charging choices, no suggestion is made the government did not have the authority to indict under the money laundering statute, only that the case is atypical given the DOJ's stated procedures regarding money laundering offenses. The Court finds the guidelines do not take these government charging choices into account. See Koon, ___ U.S. at ___, 116 S.Ct. at 2044. 2) If a case has features which would result in irrationality if the guideline sentence was applied, the case is outside the normative heartland and departure is warranted. Paul J. Hofer, Discretion to Depart after Koon v. United States, 9 FED. SENT. REP. 11 (July/August 1996). Punishment and sentencing goals are set forth in Title 18 U.S.C. § 3553. The sentence to be fashioned must reflect the seriousness of the offense, promote respect for the law and provide just punishment for the particular offense. 18 U.S.C. § 3553. Adequate deterrence to criminal conduct must be afforded and the public must be protected from other crimes of the offenders, while defendants must be provided with needed educational or vocational training or other correctional treatment. Id. The ideal of equal justice under the law requires appropriate punishment of both white-collar and street crimes. See id. While the sentencing guideline system seeks consistency, a sentencing judge is not required to be blind to common sense and fundamental fairness, nor do the guidelines place a court in a sentencing straightjacket in fashioning appropriate punishment. See Koon, ___ U.S. at ___, 116 S.Ct. at 2047. Applying the guidelines to the individual circumstances of each defendant is "heavily dependant ... on the application of the factfinding tribunal's experience with the mainsprings of human conduct." United States v. Wright, 873 F.2d 437, 444 (1st Cir. 1989) (citation omitted). Recognizing that punishment in a criminal case must be based on its own peculiar facts, it nevertheless seems at least a bit ironic, if not logically absurd, that law enforcement officer Koon could beat his victim Rodney King almost to the point of death, have his sentence of thirty (30) months given the imprimatur of approval by the United States Supreme Court and yet have the same government, albeit represented by different counsel, insist these non-violent defendants are deserving of almost twice as much punishment as officer Koon. Such a disparity runs afoul of the goal of achieving a perception of fairness and consistency in sentencing. See U.S.S.G. Ch. 1, Pt. A, intro. comment, at 2. 3) One of the underlying public policy goals of the Sentencing Guidelines is to ensure consistency among the various districts in the United States. See id. Axiomatically, there should be some degree of punishment consistency within this district of the federal court system. As if spinning a roulette wheel to choose those who would be the money changers in the temple, these defendants were prosecuted, not by the United States Attorney for the Western District of Texas where at least part of the criminal activity occurred, but rather by attorneys from the Fraud Division of the United States Justice Department from Washington, D.C. There being an honest 699 and good faith disagreement among the advocates for the government and defense, this Court as umpire must resolve those differences to try to achieve some consistency in sentencing within this district and as compared to other related cases involving Israeli officials and American businesses. Although the disagreement has been presented agreeably and noting the reality of prosecutorial discretion, the Court nevertheless divines no reason why defendants prosecuted by Washington lawyers should receive harsher sentences than defendants prosecuted by Western District of Texas lawyers, contrary to the spirit of the guideline concept to prevent disparities in punishment. See id. Just as cases prosecuted in different circuits should produce similar sentences, so also similar cases, such as the Israeli/American matters discussed below, prosecuted by different lawyers from the same government should achieve the perception, if not the perfection, of equal justice. The Court finds no indication this factor has been considered by the Sentencing Commission. See Koon, ___ U.S. at ___, 116 S.Ct. at 2044. In addition to the earlier comparison with the punishment in Koon, this Court's awareness provides additional examples: A) Western District of Texas prosecutions for white-collar offenses: 1) United States v. Ronald Barrick, Criminal Action No. A-94-CR-10 (W.D.Tex.1994), lawyer Barrick guilty of conspiring to defraud and making false, fraudulent, fictitious claims: victim impact loss of $24,228,574.53, total offense level of 30; guideline range of 63-78 months; following a trial, defendant was sentenced to 60 months in prison and ordered to pay $1,804,879.99 in restitution; 2) United States v. Benefax Surety Corp., Criminal Action No. SA-93-CR-278 (W.D.Tex.1993), defendant guilty of conspiring to defraud and making false claims: victim impact loss of $24,228,574.53, total offense level of 24; following a trial, defendant was ordered to pay $1,804,879.99 in restitution; 3) United States v. Anthony Michael Upton, Criminal Action No. A-94-CR-10 (W.D.Tex.1994), contractor guilty of conspiracy to defraud the government and making false, fictitious and fraudulent claims: victim impact loss of $365,109.38, total offense level of 17, guideline range of 24-30 months; following a trial, defendant was sentenced to 24 months in prison and ordered to pay $363,813.69 in restitution; 4) United States v. Earl Stenger, Criminal Action No. SA-94-CR-322 (W.D.Tex.1994), psychiatrist guilty of subscribing a false income tax return: victim impact loss of $200,000, total offense level of 16, guideline range of 21-27 months; following a plea of guilty, defendant was sentenced to 21 months in prison, fined $50,000 and ordered to pay $200,000 in restitution; 5) United States v. Charles T. Conway, Criminal Action No. SA-92-CR-184 (W.D.Tex.1992), lawyer guilty of income tax evasion and structuring of currency to evade reporting requirements: victim impact loss of $46,199.87, total offense level of 13, guideline range of 12-18 months; following a trial, defendant was sentenced to 14 months in prison; 6) United States v. Lloyd Adams, Criminal Action No. SA-94-CR-344 (W.D.Tex.1994), defendant guilty of conspiring to steal government property: victim impact loss of $231,718.38, total offense level of 13, guideline range of 12-18 months; following a plea of guilty, defendant was sentenced to 12 months in prison and ordered to pay $200,000 in restitution; 7) United States v. Clinton Manges, Criminal Action No. SA-94-CR-319 (W.D.Tex.1994), defendant guilty of conspiring to defraud and bribery: victim impact loss of $67,634.67, total offense level of 18, guideline range of 27-33 months; following a trial, defendant 700 was sentenced to 27 months in prison and fined $50,000; 8) United States v. Rupert Hayes, Criminal Action No. SA-93-CR-62 (W.D.Tex.1994), bank president guilty of conspiring to defraud and bribery: victim impact loss of $45,067,826, total offense level of 21, guideline range of 37-46 months; following a plea of guilty, defendant was sentenced to 41 months in prison, fined $25,000 and ordered to pay $43,267,826 in restitution; 9) United States v. Raul Guerra, Criminal Action No. SA-93-CR-136 (W.D.Tex.1993), attorney guilty of disposition of a firearm to a person reasonably believed to be a felon: total offense level of 12, guideline range of 10-16 months; following a plea of guilty, defendant was sentenced to 23 months in prison; 10) United States v. Albert Bustamante, Criminal Action No. SA-93-CR-39 (W.D.Tex.1993), United States Congressman guilty of racketeering and receipt of a gratuity by a public official: total offense level of 21, guideline range of 36-47 months; following a trial, defendant was sentenced to 42 months in prison and fined $55,000. B) Related Israeli/American cases prosecuted by government lawyers other than those who prosecuted these defendants: 1) United States v. Benjamin Sonnenschein, defendant guilty of failing to declare currency and failing to report a financial interest in a foreign bank account on his United States individual income tax return: total offense level of 13, guideline range of 12-18 months; following a plea of guilty, defendant was sentenced to 3 years probation, fined $150,000, ordered to pay $50,000 in restitution and to make an additional payment of $2,800,000; 2) United States v. Herbert B. Steindler, General Electric's international sales manager guilty of conspiring to commit offenses against the United States, wire fraud, money laundering and use of mail in aid of racketeering: total offense level of 28, guideline range of 78-97 months; after a plea of guilty, defendant was sentenced to 84 months in prison and $1,741,453 was ordered forfeited; 3) United States v. Gary S. Klein, defendant guilty of conspiring to commit offenses against the government: total offense level of 20, guideline range of 33-42 months: following a plea of guilty, defendant was sentenced to 18 months in prison and $652,613 was ordered forfeited; 4) United States v. General Elec. Corp., defendant guilty of violating the record keeping provisions of the Foreign Corrupt Practices Act and money laundering: following a plea of guilty, defendant was fined $9,500,000 and entered into a civil settlement of $59,500,000; 5) United States v. National Airmotive Corp., defendant guilty of submitting false claims: following a plea of guilty, defendant was fined $1,250,000, entered into a civil settlement in the amount of $1,750,000 and voluntarily returned $400,000.[5] Lastly, this Court had the experience of sentencing, pursuant to a plea agreement in a case prosecuted by the United States Attorney's Office for the Western District of Texas, Mr. Karlton Halbert, Criminal Action No. SA-95-CR-11 (W.D.Tex.1995). Mr. Halbert was indicted for four armed bank robberies which struck terror into the hearts of four young tellers. Having pleaded guilty to one count, defendant Halbert was sentenced within the guideline range to fifty-one months, a punishment similar to that Washington counsel would have the Court impose on these non-violent defendants. 701 The amount of money stolen, as indicated by the victim impact loss and solidified by the amount of fines, restitutions and civil settlements ordered, and the sentences received in the related Israeli/American and white-collar prosecutions in the Western District of Texas reflect far more serious cases than the one before the Court. For example, the General Electric Corporation was fined $9.5 million and paid a civil settlement of $59.5 million. Its international sales manager caused a victim impact loss of over $11.5 million (an amount 150 times more than that involved in this case) and was ordered to spend eighty-four months in prison. Mr. Hayes, a bank president, caused a victim impact loss of over $45 million and was ordered to spend only forty-one months in prison. The victim impact loss in defendant Klein's case amounted to over $7 million, yet he was sentenced to eighteen months. Here, although the loss was limited to $76,000, the government nonetheless seeks to imprison these defendants for periods comparable to or in excess of the sentences received by more serious offenders. Benjamin Sonnenschein caused $2,800,000 in loss (thirty-seven times the amount involved here) but received probation in a plea agreement negotiated by different government lawyers. In comparison, Mr. Bart and Mr. Stewart are the smallest of fish who absconded with relatively few loaves, notwithstanding government efforts to multiply defendants' size and the severity of their sentences. 4) Many defendants receive downward departures on motion of the government for cooperation with law enforcement officials in ongoing investigations. See 1995 U.S. SENTENCING COMM'N ANN. REP. table 31, at 90 (Fifth Circuit: 19.1% received substantial assistance downward departure). If a defendant is a large corporation such as the General Electric example, it can buy peace with a multi-million dollar payment. But the dwarf tomato variety of defendants who are prosecuted at the end of an investigation or who are so low on the vine they have no information to be harvested have no such opportunity. Mr. Stewart from Hondo, Texas, and Mr. Bart in the low echelon of the Israeli purchasing process clearly are not high on the trellis. This reality, in the Court's opinion, is one of the more identifiable failings of the sentencing guidelines. Often, the only offenders who can take advantage of this type of sentencing relief are the hard-core defendants who have worked their way up in a criminal enterprise to become trusted lieutenants. Only they are in possession of the type and quality of information which can result in arrests and prosecutions, so only they can take advantage of downward departures under this section of the guidelines. In a sense, a person is rewarded for being more involved in a criminal enterprise or activity for being more of a criminal. It is "curiouser and curiouser" that Mr. Stewart and Mr. Bart could actually receive a lower sentence if they were high up in an organization, had laundered more money or had been in positions of authority. LEWIS CARROLL, ALICE'S ADVENTURES IN WONDERLAND AND THROUGH THE LOOKING GLASS 26 (Penguin Books 1960). The Court finds no evidence this factor has been considered by the Sentencing Commission. See Koon, ___ U.S. at ___, 116 S.Ct. at 2044. 5) Neither Mr. Bart nor Mr. Stewart appears to be dangerous, United States v. One Star, 9 F.3d 60, 61 (8th Cir.1993), and neither has demonstrated he poses any threat to the community, United States v. Gaskill, 991 F.2d 82, 86 (3d Cir.1993). MR. STEWART'S FACTORS In addition to the factors common with Mr. Bart, other factors are specific to Mr. Stewart: 1) He was also prosecuted by the same Washington counsel and initially convicted by a jury of conspiracy to defraud the United States, mail fraud and wire fraud in Criminal Action No. SA-95-CR-78, before the Honorable Edward C. Prado. A sentence of thirty-seven months was imposed to run concurrently with the sentence in this case. After serving twenty-one and one-half months, this multiple prosecution was recently reversed and remanded for dismissal by the Fifth Circuit Court of Appeals based on insufficient evidence, although his co-defendants' convictions were affirmed. United States v. JLM Aviation Int'l, 122 F.3d 1066 (5th Cir. 702 1997). Thus, Mr. Stewart has already served the sentence imposed herein, has been put through the rigors of a second trial found by the Fifth Circuit to have been insufficiently presented, and is trying to rebuild his life. See Koon, ___ U.S. at ___, 116 S.Ct. at 2053 (district court may consider effect of successive prosecutions when considering downward departure). He is on supervised release for the next three years in the unlikely event of further violations. 2) After the initial indictment in this case, Mr. Stewart and his counsel met with government counsel and agents to provide information and to engage in good faith negotiations aimed at a non-trial disposition, as often happens in cases presented by government counsel located in the Western District of Texas milieu. In this instance, however, the voluntary meeting resulted in a superseding indictment sought by Washington government counsel alleging additional counts. 3) After many months of incarceration, Mr. Stewart appeared in court for his resentencing following remand from the Fifth Circuit. Bart, No. 96-50007, 117 F.3d 1416. He appeared to this sentencing judge to have lost thirty to forty pounds (a fact confirmed by Mr. Stewart), to be pale and to be broken in spirit, thus furthering this Court's belief that sufficient punishment has already been meted out. 4) Mr. Stewart was found to have violated a position of trust, adding two points to the base offense level. In reality, his position was inherited from the efforts of his mother and late father. As a practical matter, the lone individual who could possibly suffer from Mr. Stewart's violation of trust is the woman who bore him. His mother has been at every court proceeding and has never indicated a desire to have her son punished as a result of any monetary loss she suffered from his business dealings. Mainly through the undoing of Mr. Stewart, these business interests are now either defunct or bankrupt and the family fortune is gone. Unlike a violation of trust by an officer of a publicly held company, this situation is clearly intra-family, a difference not adequately taken into account by the Sentencing Commission. See Koon, ___ U.S. at ___, 116 S. Ct. at 2044. FACTORS SPECIFIC TO MR. BART In addition to the factors in common with Mr. Stewart, other factors are specific to Mr. Bart: 1) Born and reared in Israel, Mr. Bart is an Israeli law school graduate who advanced to Lieutenant Colonel in the Israeli military. He married an American citizen, become a naturalized United States citizen, and has absolutely stated his intent to remain in the United States. Mr. Bart was almost fifty years old when he began his prison sentence. At about the same time, his only son was born. During his incarceration, he kept in daily contact with his wife and infant child. 2) From the very beginning of this case, Mr. Bart has appeared promptly, respectfully and voluntarily at each court proceeding, with no negative reports from pretrial services for the lengthy period between arraignment and voluntarily reporting to the Bureau of Prisons. After being a model prisoner who fully paid his $36,528 restitution and after being separated from his wife and young child for fifteen months, Mr. Bart returned to his family and continued to comply faithfully with his conditions of release, which will continue for three years. Upon reversal of this Court's first sentencing decision and notwithstanding a dearth of evidence that Mr. Bart would flee when he had had every opportunity to do so before, government counsel engaged in ex parte communications with Bureau of Prison officials, under whose supervision Mr. Bart remained. As a result, with not even a courtesy advisory to the Court or defense counsel, much less due process notice and an opportunity to be heard by the independent judiciary, the executive branch of the government unilaterally reincarcerated Mr. Bart. The government's methodology imposed further punishment on Mr. Bart not considered by the Sentencing Commission. See Koon, ___ U.S. at ___, 116 S.Ct. at 2044; see also Parham, 16 F.3d at 848 (district court may consider government's conduct in decision to grant downward departure). The scene of what happened to Mr. Bart and his family as a result of the government's ex parte behavior was 703 described in a letter to defense counsel from Mr. Bart's wife[6]: The last ten days have been a nightmare. Last Thursday morning, two federal marshalls [sic] came and took Yechiel from our house. The local police were in the background with rifles and dogs. They would not let him kiss [his toddler-aged son] without handcuffs on. Three years ago, almost to the day, this nightmare began. At that time, I was in my ninth month of pregnancy and federal marshalls [sic] came and arrested Yechiel because then, as now the federal prosecutor claimed that Yechiel was a flight risk. He was as much a flight risk then, as he is now. At that time he was attending birthing classes with me and was preparing to be my coach during the birth of our son. Luckily, he was able to return home in time for his son's birth. Since that morning three years ago I have had nightmares and I tremble every time a strange car pulls up to our drive. Last Thursday morning the stormtroopers returned to take my husband again. . . . . . Yechiel was out on bond before and after his sentencing until the day he self-surrendered and entered Fort Dix. At Fort Dix he worked outside the gates and was given early release to a halfway house. He traveled on his own from Fort Dix to the halfway house and after being there a short time he was given home confinement. And he is a flight risk? When Yechiel was picked up [on] Thursday ... he was taken to ... a maximum security facility. He was held in a cell for 23 and a half hours a day.... He was not allowed to have pencil and paper in order to prepare information for his lawyer, for his resentencing.... It seems to me that the prosecutor is succeeding in punishing us, by manipulating the system. What he couldn't accomplish through the courts, he is accomplishing by stretching his reach and misusing the system. While our adversarial system needs earnest and vigorous prosecutorial efforts, government lawyers also have a duty well described by Mr. Justice Sutherland and a unanimous Supreme Court sixty-two years ago: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Moreover, the United States Attorney's Manual advises government attorneys: [The] Principles of Federal Prosecution ... should promote the reasoned exercise of prosecutorial authority, and contribute to the fair, evenhanded administration of the federal criminal laws. The manner in which federal prosecutors exercise their decision-making authority has far-reaching implications, both in terms of justice and effectiveness in law enforcement and in terms of the consequences for individual citizens.... The intent is to assure regularity without regimentation, to prevent unwarranted disparity without sacrificing necessary flexibility. The availability of this statement of Principles to federal law enforcement officials and to the public serves two important purposes: ensuring the fair and effective exercise of prosecutorial responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case. U.S. DEP'T OF JUST., U.S. ATTY'S MANUAL, PRINCIPLES OF FED. PROSECUTION 9-27.001. As Attorney General Janet Reno has said: "We must treat the people we deal with in every 704 context of our service as if that person is a member of our family...." U.S. DEP'T OF JUST., LEGAL ACTIVITIES 1997-1998 iii (1997). Presumably, "every context" includes those against whom the might of the federal government is aimed. Although never justified, the growth of mischievous mental machinations of those who would employ violence against federal employees and federal property is fertilized and cultivated by the Zealot-like use of government power. That we might not reap what a few would sow, such force must be circumscribed by concepts of fundamental fairness and constitutional due process. Reminiscent of a Shakespearean protest[7], the government complains of the use of the term "ex parte" to describe secret communications between government counsel and Bureau of Prison personnel resulting in Mr. Bart's unjustified placement in virtual solitary confinement. Demurring to the government's technically correct semantic analysis, perhaps a vernacular portrayal more clearly construes the government's conduct: The government went behind the Court's back to accomplish its intended purpose.[8] As required by Koon, the Court has considered the structure and theory of the relevant guideline and the guidelines as a whole to determine whether this case falls outside the guideline's heartland. Koon, ___ U.S. at ___, 116 S.Ct. at 2045. The Court believes each of the factors discussed above is sufficient to take this case outside the heartland. However, the Commission does not preclude a downward departure based upon the totality of circumstances or a combination of characteristics. See USSG § 5K2.0 comment, at 311 (November 1995). It is therefore alternatively concluded that the combination of the legislative history, the guidelines' commentary, the structure of the guidelines, government publications, prosecutorial practices (including the rearrest of Mr. Bart), the types of crimes prosecuted, statistical evidence, and past sentencing practices (including the Israeli/American prosecutions and white collar sentences handed down in this district) and based upon the facts before the Court and the extensive experience in sentencing felony defendants of the undersigned, it is concluded this case falls outside the heartland of traditional money laundering cases. A downward departure is therefore justified. THE EXTENT OF THE DOWNWARD DEPARTURES As directed by the Fifth Circuit, the Court fashions a sentence based on § 2S1.2 of the guidelines. Bart, No. 96-50007, op. at 3, 117 F.3d 1416. The base offense level for both defendants is set at seventeen. As the loss did not exceed $100,000, there is no enhancement pursuant to 2S1.2(b)(2). However, as it was known the funds were proceeds of a specified unlawful activity, there is an increase of two levels pursuant to U.S.S.G. § 2S1.2(b)(1)(B). In addition, as there was an abuse of a position of trust, there is a further increase of two levels pursuant to U.S.S.G. § 3B1.3. There is also a two level increase for obstruction of justice under U.S.S.G. § 3C1.1. Neither defendant is entitled to a downward adjustment for acceptance of responsibility. Thus, as to each defendant, a total offense level of twenty-three is set, with a criminal history category of I, resulting in a guideline imprisonment range of forty-six to fifty-seven months. In departing downward, the Court sets an imprisonment term of twenty-one months for each defendant. As a final matter, the district court must demonstrate the extent of the departure is reasonable by analogy to the guidelines. 18 U.S.C. § 3742(f)(2); see also Williams v. United States, 503 U.S. 193, 202, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992) (if reviewing court concludes decision to depart was not result of erroneous interpretation of guidelines, it must then determine whether resulting sentence is unreasonably high departure from relevant guideline 705 range).[9] The superseding indictment charges in counts one through twenty-one a complex series of fraudulent activity constituting mail fraud and wire fraud. As part of each count, the prosecution alleged in forty-seven parts "THE SCHEME AND ARTIFICE" to defraud. Paragraphs twenty-one through sixty-five and sixty-nine, seventy and seventy-one of each mail and wire fraud count describe "the scheme and artifice to defraud the United States and to obtain money by means of false and fraudulent pretense, representations and promises." Paragraph seventy-three of the interstate transport count charges defendants with transporting funds "taken by fraud." Paragraph seventy-five of the money laundering counts reads: [Defendants] did knowingly engage and attempt to engage in monetary transactions affecting interstate commerce, in criminally derived property of a value of greater than $10,000, this is, certain monetary transfers, such property having been derived from specified unlawful activity, that is mail fraud, wire fraud.... At trial, it became clear the factual components of the money laundering and interstate transportation counts are contained in the mail fraud and wire fraud counts. According to the presentence report, each defendant's guideline range is doubled by the use of the money laundering and interstate transport guidelines in addition to or instead of the guidelines related to mail fraud and wire fraud. Thus, adding the money laundering and interstate transportation charges only serves to greatly increase the sentencing range each defendant faces for conduct and financial transactions already encompassed in the mail and wire fraud counts. The Court heeds the pre-Koon words of the Fifth Circuit that the de minimis nature of the money laundering conduct can never justify departure. United States v. Willey, 57 F.3d 1374, 1392 (5th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 675, 133 L.Ed.2d 524 (1995). However, as noted above, an argument can be made that any pre-Koon case holding that a factor can never justify departure is no longer good law. Brock, 108 F.3d at 35; Kalb, 105 F.3d at 428-29. Nonetheless, in an abundance of caution, the Court employs this analysis solely for the basis of establishing the reasonableness of the departure. Another analogous guideline is U.S.S.G. § 2C1.7, which covers fraud involving the deprivation of the right to the honest services of appointed officials and fraud involving the interference of governmental functions. For purposes of the objective criminal conduct, there appears to be little difference between defendants' money laundering activities and the conduct in a typical section 2C1.7 case. Bearing this in mind, had defendants been sentenced for fraud involving the deprivation of the right to honest services, the total offense level for Mr. Stewart would be eighteen and the guideline range would be twenty-seven to thirty-three months imprisonment. Mr. Bart's total offense level would be sixteen, and the guideline range would be twenty-one to twenty-seven months in prison. Although the Fifth Circuit prohibited this Court from computing Mr. Bart's and Mr. Stewart's sentences using this guideline, Bart, No. 96-50007, op. at 2-3, 117 F.3d 1416, this analogy to section 2C1.7 illustrates the reasonableness of the extent of departure when sentencing these defendants under the money laundering guidelines. THE GOVERNMENT'S BURNS OBJECTION The government disingenuously says it did not receive a Burns notice, implying the government *706 did not know the Court might depart on resentencing. Burns v. United States, 501 U.S. 129, 131 & 135 n. 5, 111 S.Ct. 2182, 2183-84 & 2185-86 n. 5, 115 L.Ed.2d 123 (1991) (district court required to give notice to government before sua sponte departing downward from applicable guideline range). The Court had assumed the government read the Fifth Circuit's opinion on remand directing this Court to "reconsider the vague factors it cited to justify departure in light of the Guidelines, the Supreme Court's opinion in Koon, and this opinion." Bart, No. 96-50007, op. at 4, 117 F.3d 1416. The Court fails to see how one more piece of paper telling the government the amount of punishment will be in issue at resentencing would shed light on the already well-illuminated. The Burns objection is overruled. CONCLUSION It is this author's humble and respectfully submitted opinion, after almost nineteen years of judicial decision making, that twenty-one months for each defendant is just punishment. Given this Court's opportunity to see and hear the defendants on resentencing, the Court is unhesitatingly convinced of rehabilitation and deterrence from any future violation. Both defendants are under Court supervision for the next three years. Sending them back to prison accomplishes nothing but the Orwellian absurdity of spending as much to reincarcerate them as is sought in restitution. The punishment nightmares continue for Mr. Bart and his family because of the government's unilateral actions resulting in the terror of his rearrest. Mr. Bart poignantly said at his resentencing: "I just want my life back." Moreover, as set forth in detail above, the common sense goal of consistency in sentencing within this district and in comparison with related Israeli/American cases is met with a twenty-one month term. Had this case been brought by Department of Justice lawyers located in the Western District of Texas, it likely would have been over in 1994 with far less expense, far fewer trees consumed and punishment at about twenty-one months. To accede to the government's tunnel visioned insistence on approximately twice the prison time would miss the target of consistency, would achieve no societal benefit, would cost the American taxpayers a minimum of almost $73,000 in prison expenditures and would take up two spaces in an already overcrowded system, spaces better reserved for the human predators among us.[10] Although no perfect remedy or punishment can be fashioned which pleases everyone, the Court is confident that the goals of justice, the Sentencing Commission and the Congress are properly met. Over the span of eternity, there is little difference among, and nothing to be gained from, additional incarceration of these defendants, be it twenty-four, thirty, thirty-seven or forty-six months. Implanted with the totality of the reasons stated herein is a strong visceral reaction, located somewhere between the sternum and the navel, that what the government wants to do and has done to these defendants is excessive and outside the heartland; nor do some government tactics receive an acceptable grade in an examination by the olfactory senses. Despite the well intentioned exuberance of government counsel, to follow the guidelines in this atypical case would cross the line from prosecution to persecution. Some other authority will have to see to the approval of the government's endeavors and its goal to extract more life and liberty from defendants Bart and Stewart. This Court chooses not to have its hands sullied. It is so ORDERED. NOTES [1] Departures based upon race, sex, national origin, creed, religion, socio-economic status, U.S.S.G. § 5H1.10; lack of guidance as a youth, U.S.S.G. § 5H1.12; drug or alcohol dependence, U.S.S.G. § 5H1.4; and economic hardship U.S.S.G. § SK2.12; are forbidden. [2] The guidelines list a number of factors which encourage a downward departure including: (1) no intent to injure or kill, U.S.S.G. §§ 5K2.1, 5K2.2(2); (2) victim's wrongful conduct significantly provoked the offense, U.S.S.G. § 5K2.10; (3) offense committed to avoid perceived greater harm, U.S.S.G. § 5K2.11; (4) coercion or duress, even if insufficient to constitute a complete defense, U.S.S.G. § SK2.12; and (4) diminished capacity not resulting from the use of intoxicants, U.S.S.G. § 5K2.13. [3] Discouraged factors include the defendant's family ties and responsibilities, U.S.S.G. § 5H1.6; his or her education and vocational skills, U.S.S.G. § 5H1.2; and his or her military, civic, charitable or public service record, U.S.S.G. § 5H1.11. [4] In introducing this legislation, Senator Thurmond, Chairman of the Judiciary Committee, remarked "[c]reation of a money laundering offense is imperative if our law enforcement agencies are to be effective against the organized criminal groups which reap profits ... by camouflaging the proceeds through elaborate laundering schemes." Statements on Introduced Bills and Joint Resolutions, 1986: Proceedings and Debates on the Money Laundering Crimes Act, 99th Cong., 2d Sess. (Thursday, July 24, 1986), available in WESTLAW, 132 C.R. S9626-04. Senator Biden, also a chief sponsor of the bill, recognized that "[m]oney laundering is a crucial financial underpinning of organized crime and narcotics trafficking." Id. Senator DeConcini observed the money laundering laws are necessary to prevent large legitimate businesses, organized crime and drug kingpins from concealing enormous amounts of illegally generated income. Statements on Introduced Bills and Joint Resolutions, 1985: Proceedings and Debates on the Money Laundering Crimes and Disclosure Act, 99th Cong., 1st Sess. (Thursday, June 27, 1985), available in WESTLAW, 131 C.R. § 8957-02. After analyzing reports related to the Anti-Drug Abuse Act, the Tenth Circuit Court of Appeals concluded the purpose behind 18 U.S.C. § 1957 was to criminalize the "classic case" of laundering money "where a drug trafficker collects large amounts of cash from drug sales...." United States v. Johnson, 971 F.2d 562, 568 (10th Cir. 1992). [5] Though the Court has considered the cases cited by the government, the Court finds them factually inapposite and finds the cases summarized above to be more comparable. [6] In United States v. Wells, 101 F.3d 370, 373-74 (5th Cir.1996), the Fifth Circuit affirmed a departure based upon the psychological harm suffered by the victims of defendant's credit card fraud scheme. The sentencing judge found the case involved "extreme circumstances," as described in two letters received from the victims. Id. at 372. [7] WILLIAM SHAKESPEARE, HAMLET, PRINCE OF DENMARK act 3, sc. 2 ("The lady doth protest too much, methinks."). [8] WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2 ("What's in a name? That which we call a rose by any other name would smell as sweet."). [9] The Seventh Circuit has decided that Koon did not remove the requirement that the district court explain the extent of a departure by analogy to the guidelines. United States v. Horton, 98 F.3d 313, 319 (7th Cir.1996); see also United States v. Barajas-Nunez, 91 F.3d 826, 834 (6th Cir.1996) ("Although Koon has changed the standard of review to an abuse of discretion standard, the rationale for requiring an explanation of reasons for departure and the extent thereof still remains"). The Ninth Circuit, on the other hand, decided en banc that Koon effectively overruled its earlier holding that a departure requires a comparison to analogous guideline provisions. United States v. Sablan, 114 F.3d 913, 919 & n. 10 (9th Cir.1997); see also United States v. Hardy, 99 F.3d 1242, 1253 (1st Cir.1996) ("A sentencing court is not required to dissect its departure decision, explaining in mathematical or pseudo-mathematical terms each microscopic choice made."). The Court did note, however, "[a]n analysis and explanation by analogy ... may still be a useful way for the district court to determine and explain the extent of departure, but it is not essential." Sablan, 114 F.3d at 919 n. 10. [10] The average cost for maintaining a prisoner is approximately $21,352 per year. U.S. DEP'T OF JUST., JUD. GUIDE TO THE FED. BUREAU OF PRISONS 5 (1995). The government seeks to spend a minimum of $88,966.50 and a maximum of $128,111.76, the cost of maintaining these defendants in prison for additional time. Federal prisons are currently operating at 124% of capacity.	{ "pile_set_name": "FreeLaw" }
Case: 17-50898 Document: 00514785392 Page: 1 Date Filed: 01/08/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-50898 January 8, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. HERON PENA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:11-CR-649-1 Before JONES, HAYNES, and OLDHAM, Circuit Judges. PER CURIAM:* Heron Peña appeals his statutory-maximum sentence of twenty-four months, which was imposed following the revocation of his supervised release. For the first time on appeal, he argues the district court erred in two ways. First, he claims the district court based his sentence on unsupported allegations. Second, the district court imposed an above-guidelines revocation sentence, which Peña argues it did not sufficiently explain. We reject these arguments and AFFIRM. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 17-50898 Document: 00514785392 Page: 2 Date Filed: 01/08/2019 No. 17-50898 In 2012, Peña pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to sixty months’ imprisonment and three years’ supervised release. He began serving his term of supervised release in April 2016. From May 2016 through March 2017, Peña’s probation officer filed several reports of Peña’s noncompliance with the terms of his supervised release. The officer reported that Peña threatened a psychiatrist, failed to take prescribed medications, became aggressive with a work supervisor, used methamphetamine, failed to pay a twenty-five-dollar special assessment, failed to maintain steady employment, and failed to attend a cognitive life- skills program. After the third report of noncompliance, the district court ordered a revocation hearing. At the March revocation hearing, the district court described those allegations to Peña and asked him, “Are those facts true?” Peña responded, “Yes, sir.” Despite Peña’s many violations, the district court used its discretion to give him another opportunity and returned him to supervised release. Peña again violated the terms of his supervised release. The probation officer reported that Peña failed a drug test, submitted a diluted drug test, failed to complete the cognitive life-skills program, failed to work regularly at a lawful occupation, and failed to pay the twenty-five-dollar special assessment. The district court set another revocation hearing for September. At the September 2017 revocation hearing, Peña was informed of similar allegations to those in the March 2017. This time, he equivocated on the allegations that he threatened anyone and failed to complete the cognitive life- skills program. The district court found him in violation of the terms of his supervised release and sentenced him above the recommended guidelines 2 Case: 17-50898 Document: 00514785392 Page: 3 Date Filed: 01/08/2019 No. 17-50898 range to the statutory maximum of twenty-four months. Now, for the first time on appeal, Peña argues that the sentence was erroneous. Because Peña did not object in the district court, review is only for plain error. United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014). To show plain error, Peña must identify an error that was clear or obvious and affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have discretion to correct the error but only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in original) (internal quotation marks and citation omitted). Peña has not shown that the district court relied on unsupported allegations. The record shows that the district court based the revocation sentence on Peña’s current supervised release violations, as well as his history of noncompliance on supervised release. See United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012). Peña argues that decision was error because the district court could not rely on admissions from the March revocation hearing during the September revocation hearing. Peña offers no authority for the proposition that a judge cannot rely on a defendant’s own admissions in the same case, on the same issue, just because they were made earlier in the year. Thus, any purported error in doing so cannot be plain. See United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (noting that plain error must be “clear or obvious, rather than subject to reasonable dispute”); United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017) (“An error is not plain under current law if a defendant’s theory requires the extension of precedent.” (internal quotation marks omitted) (quoting United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010))). Peña has also failed to show that the district court failed to explain the above-guidelines sentence. The district court reviewed Peña’s supervised 3 Case: 17-50898 Document: 00514785392 Page: 4 Date Filed: 01/08/2019 No. 17-50898 release history and noted that Peña returned to prison twice because he was aggressive and would not follow instructions, that Peña had been given three chances with different programs, and that he had not shown any improvement over the course of his supervised release. The district court further stated that Peña had “earned” the twenty-four-month, above-guidelines sentence. The district court’s reasons were adequate in view of the record as a whole. See Rita v. United States, 551 U.S. 338, 356–58 (2007). Thus, Peña has not shown any error, much less clear or obvious error. Further, Peña has not shown that any supposed error affected his substantial rights. See United States v. Whitelaw, 580 F.3d 256, 262–65 (5th Cir. 2009). AFFIRMED. 4	{ "pile_set_name": "FreeLaw" }
125 F.3d 862 97 CJ C.A.R. 2147 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Lee R. PHILLIPS, Plaintiff-Appellant,v.George P. ELDER; Marilyn S. Hutton, Assistant U.S.Attorney, Defendants-Appellees. No. 97-2094. United States Court of Appeals, Tenth Circuit. Oct. 2, 1997. Before ANDERSON, BARRETT, and MURPHY, Circuit Judges. 1 ORDER AND JUDGMENT* 2 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 3 Plaintiff Lee R. Phillips, appearing pro se, appeals the district court's order dismissing her complaint seeking warrants for defendants' arrest based on their roles as attorneys for the Air Force and the United States Government in a prior civil action brought by plaintiff. The district court held that plaintiff lacked standing to initiate a criminal prosecution against another. We affirm. 4 We review de novo the district court's order of dismissal with prejudice for lack of standing. See United States v. Colorado Supreme Court, 87 F.3d 1161, 1164 (10th Cir.1996). Plaintiff, as the party invoking federal jurisdiction, bears the burden to establish standing. See id. Therefore, she must show that (1) she has suffered an injury in fact, (2) there exists a causal connection between the injury and defendants' conduct, and (3) it is likely that the injury will be redressed by a favorable decision. See Bennett v. Spear, 117 S.Ct. 1154, 1161 (1997). 5 An "injury in fact" must invade a legally protected interest. See Colorado Supreme Court, 87 F.3d at 1164-65. Here, plaintiff's complaint seeking prosecution of others did not involve a legally protected interest because "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566-67 (10th Cir.1993) (holding civil rights plaintiff lacked standing to require disciplinary proceedings to be filed against another). Accordingly, we conclude that plaintiff lacks standing to require defendants' arrest on criminal charges. 6 The judgment of the United States District Court for the District of New Mexico is AFFIRMED. The mandate shall issue forthwith. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3	{ "pile_set_name": "FreeLaw" }
924 F.Supp. 1116 (1996) Elizabeth SELLERS, Plaintiff, v. FOREMOST INSURANCE COMPANY, et al., Defendants. Civil Action No. 96-T-197-N. United States District Court, M.D. Alabama, Northern Division. April 24, 1996. 1117 Jere L. Beasley, Thomas James Methvin, Julia Ann Beasley, Richard D. Morrison, Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, AL, for plaintiff. James A. Byram, Jr., Charles M. Crook, Anna Cathryn Northington, Balch & Bingham, Montgomery, AL, for defendant. ORDER MYRON H. THOMPSON, Chief Judge. Plaintiff Elizabeth Sellers initially filed this lawsuit in the Circuit Court of Bullock County, Alabama on January 3, 1996, charging defendants Foremost Insurance Company, Jewell Tabler, and Sam Tabler with fraud, fraudulent suppression, negligence and conspiracy to defraud relating to Sellers's purchase of a mobile home insurance policy. Sellers claims that the defendants fraudulently failed to disclose to her that non-mandatory adjacent structure coverage was included in the policy and that she would be charged an additional premium for such coverage. On February 6, 1996, Foremost Insurance removed this lawsuit to federal court, basing removal on diversity-of-citizenship jurisdiction pursuant to 28 U.S.C.A. §§ 1332, 1441. This matter is now before the court on Sellers's motion to remand. Oral argument was held on the motion on April 18, 1996. "Very early in the judicial history of this country, the Supreme Court established the rule of complete diversity of citizenship in Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). This rule requires that all plaintiffs and all defendants must be of different citizenships." Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1557 (11th Cir.1989). Foremost Insurance is incorporated in and has its principal place of business in a state other than the State of Alabama. However, because Sellers and the Tablers are all citizens of the State of Alabama, complete diversity of citizenship is not present in this case. Foremost Insurance contends that Sellers fraudulently joined the Tablers as defendants in order to defeat diversity of citizenship. The citizenship of a resident defendant fraudulently joined should not be considered by a court for the purpose of determining diversity jurisdiction. The removing 1118 party bears the burden of proving that the joinder of the resident defendant was fraudulent. Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983). In order to establish fraudulent joinder, the removing party must show either "[1] that there is no possibility that the plaintiff would be able to establish a cause of action against the resident defendant in state court or [2] that there has been outright fraud in the plaintiff's pleading of jurisdictional facts." Id.; see also Cabalceta, 883 F.2d at 1561. Furthermore, "[i]f there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court." Coker, 709 F.2d at 1440-41. The court must evaluate all factual issues and questions of controlling substantive law in favor of the plaintiff. Cabalceta, 883 F.2d at 1561. Sellers maintains that, in determining whether joinder is fraudulent, the court may look only to the pleadings. Admittedly, the Eleventh Circuit Court of Appeals reaffirmed that "Removability should be determined `according to the plaintiff's pleading at the time of the petition for removal.'" Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1359 (11th Cir.1996) (quoting Coker, 709 F.2d at 1440). And, admittedly, the defendants have not asserted that Sellers has failed to meet Rule 9's requirement that, "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P.9. Sellers has adequately alleged fraud against the Tablers. Sellers overlooks, however, that the Eleventh Circuit has also made clear that the district court "can consider any submitted affidavits and/or deposition transcripts." Cabalceta, 883 F.2d at 1561. As the Fifth Circuit Court of Appeals has stated, "While we have frequently cautioned the district courts against pretrying a case to determine removal jurisdiction, we have also endorsed a summary judgment-like procedure for disposing of fraudulent joinder claims." Cavallini v. State Farm Mutual Auto Insurance Co., 44 F.3d 256, 263 (5th Cir.1995) (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990)). "`[F]raudulent joinder claims can be resolved by piercing the pleadings and considering summary judgment-type evidence such as affidavits and deposition testimony.'" Cavallini, 44 F.3d at 263 (quoting Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir.1994)). This court must acknowledge that Sellers has not yet had a full opportunity to engage in discovery to prove her claim of fraud against the Tablers. The court also agrees with Sellers that she should not be unjustly cut off at this early stage from pursuit of a possibly valid claim. The question then is how should a court assess factual allegations for fraudulent joinder when there has not been a full opportunity for discovery. The court need not look far for an appropriate threshold standard. A party submitting a pleading must meet, at least, the requirements of Rule 11 of the Federal Rules of Civil Procedure, which provides, in part, that, "By presenting to the court ... a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, ... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." Rule 11 recognizes, as the 1993 Advisory Committee Notes state, that "a litigant may have good reason to believe that a fact is true or false but may need discovery, formal or informal, from opposing parties or third persons to gather and confirm the evidentiary basis for the allegation." Nonetheless, as the Committee Notes further state, "Tolerance of factual contentions ... when specifically identified as made on information and belief does not relieve litigants from the obligation to conduct an appropriate investigation into the facts that is reasonable under the circumstances; it is not a license to join parties [or] make claims ... without any factual basis or justification." Thus, Rule 11 requires that a litigant be able provide some showing that "the allegations and other factual contentions 1119 have evidentiary support or ... are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." The court believes that, because a fraudulent-joinder charge based on lack of evidence raises a concern already addressed by Rule 11 that is, that a plaintiff may have good reason to believe that a fact is true but may need discovery to confirm the fact Rule 11's standard should apply to such a charge. Therefore, to block a fraudulent-joinder charge based on lack of evidence, a plaintiff who has not been able to engage in full discovery must be able to provide some showing that her claim against the resident defendant has evidentiary support or is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.[] Applying these standards, the court concludes that the Tablers have been fraudulently joined as defendants. It is undisputed that the Tablers sold Sellers a mobile home. At oral argument, however, counsel for Sellers admitted that he had no evidence whatsoever that supports, or is likely to lead to evidence that supports, a viable claim against the Tablers. Indeed, the evidence in the record reflects that the Tablers were not present when the mobile home insurance policy was sold to Sellers, and thus the Tablers had nothing to do with Sellers's purchase of the policy. Accordingly, it is ORDERED as follows: (1) That plaintiff Elizabeth Sellers's motion to remand to state court, filed on February 29, 1996, is denied; and (2) That defendants Sam Tabler and Jewell Tabler are dismissed. NOTES [*] Rule 11 further provides, in part, that, "By presenting to the court ... a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, ... the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Therefore, to block a fraudulent-joinder charge based on lack of legal support, a plaintiff need only show that her claim against a resident defendant is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.	{ "pile_set_name": "FreeLaw" }
33 U.S. 148 (____) 8 Pet. 148 THOMAS JACKSON ET AL., APPELLANTS v. WILLIAM E. ASHTON. Supreme Court of United States. Mr Peters, for the appellee. Mr Key contended. *149 Mr Chief Justice MARSHALL delivered the opinion of the Court. The title or caption of the bill, is no part of the bill, and does not remove the objection to the defects in the pleadings. The bill and proceedings should state the citizenship of the parties, to give the court jurisdiction of the case. The only difficulty which could arise to the dismissal of the bill, presents itself upon the statement, "that the defendant is of Philadelphia." This, it might be answered, shews that he is a citizen of Pennsylvania. If this were a new question, the court might decide otherwise; but the decision of the court, in cases which have heretofore been before it, has been express upon the point; and the bill must be dismissed for want of jurisdiction. This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Pennsylvania, and was argued by counsel; on consideration whereof, it is the opinion of this court, that the said circuit court could not entertain jurisdiction of this cause, and that, consequently, this court has not jurisdiction in this cause, but for the purpose of reversing the decree of the said circuit court, entertaining said jurisdiction: whereupon, it is ordered, adjudged and decreed by this court, that the decree of the said circuit court be, and the same is hereby reversed, and that this appeal be, and the same is hereby dismissed. All of which is hereby ordered to be certified to the said circuit court, under the seal of this court.	{ "pile_set_name": "FreeLaw" }
405 F.Supp.2d 1169 (2005) KISS CATALOG, LTD, etc., et al., Plaintiffs, v. PASSPORT INTERNATIONAL PRODUCTIONS, INC., etc., et al., Defendants. No. CV 03-8514 DSF (CWx). United States District Court, C.D. California. December 21, 2005. Barry E. Mallen, Joy T. Teitel, Manatt Phelps & Phillips, Los Angeles, CA, for Plaintiffs. Michael R. Blaha, Michael R. Blaha Law Offices, Santa Monica, CA, for Defendants. 1170 ORDER GRANTING MOTION TO RECONSIDER, VACATING FINDING OF UNCONSTITUTIONALITY, AND DENYING DEFENDANTS' MOTION TO DISMISS ON GROUNDS OF UNCONSTITUTIONALITY FISCHER, District Judge. INTRODUCTION AND PROCEDURAL BACKGROUND On December 21, 2004, the Honorable William J. Rea, to whom this case was originally assigned, granted Defendants' motion to dismiss the Seventh Claim for Relief for violation of 17 U.S.C. § 1101, the anti-bootlegging statute, finding that § 1101(a)(3) violated the "for limited Times" requirement of the Copyright Clause and was therefore unconstitutional. KISS Catalog v. Passport Int'l Prods., 350 F.Supp.2d 823, 837 (C.D.Cal.2004) ("Order"). The United States learned of this finding only after the Order was entered, and sought leave to intervene in the action. On June 7, 2005, Judge Rea granted that request. On August 5, 2005, due to Judge Rea's death, the action was transferred to this Court for all further proceedings. This matter is now before the Court on the motion of the United States to reconsider the finding that § 1101(a)(3) ("Statute") is unconstitutional.[1] Plaintiff's have joined in the motion; Defendants have opposed it. DISCUSSION I. THE MOTION TO RECONSIDER IS GRANTED When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C. § 2403.[[2]] . . . A party challenging the constitutionality of legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted. Fed.R.Civ.P. 24(c). Neither Defendants nor the Court complied with this Rule. Failure fully to consider the position of the United States would be an abuse of discretion. See Fordyce v. City of Seattle, 55 F.3d 436, 442 (9th Cir.1995) (failure to allow state attorney general "to participate fully" where constitutionality of state statute was challenged was abuse of discretion). The Court therefore grants the motion of the United States to reconsider the Order.[3] 1171 II. SECTION 1101(a)(3) IS A CONSTITUTIONAL EXERCISE OF CONGRESS' COMMERCE CLAUSE POWER 17 U.S.C. § 1101(a) provides: Anyone who, without the consent of the performer or performers involved (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation, (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505 to the same extent as an infringer of copyright. Until Judge Rea's Order, no published decision had yet addressed the constitutionality of 17 U.S.C. § 1101(a)(3). Only two, United States v. Moghadam, 175 F.3d 1269 (11th Cir.1999), cert. denied, 529 U.S. 1036, 120 S.Ct. 1529, 146 L.Ed.2d 344 (2000), and United States v. Martignon, 346 F.Supp.2d 413 (S.D.N.Y.2004), discuss a related criminal statute, 18 U.S.C. § 2319A.[4]Moghadam and Martignon, after a careful consideration of whether the anti-bootlegging[5] legislation is a constitutional exercise of congressional power under the Copyright Clause or the Commerce Clause, reached opposite conclusions. This analysis of the constitutionality of the Statute addresses two separate considerations: (a) did Congress have the power to enact the legislation? and (b) if so, is the legislation "fundamentally inconsistent" with the Copyright Clause? This Court agrees with the analysis of Moghadam: the Statute is constitutional. A. The Commerce Clause Empowers Congress to Enact the Statute Because Congress may exercise only those powers granted to it by the Constitution, e.g., United States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Court must determine whether Congress had the power to enact the Statute in the first instance. The Copyright Clause,[6] U.S. Const. art. I, § 8, cl. 8, the Commerce Clause, id. cl. 3, and the Necessary and Proper Clause, id. cl. 18, are the generally suggested sources of such power. Congress may have believed that it was acting pursuant to the Copyright Clause, which provides that Congress has the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." See Moghadam, 175 F.3d at 1272 ("[W]hat little legislative history exists tends to suggest that Congress viewed the anti-bootlegging provisions as enacted pursuant to its Copyright Clause authority," citing 140 Cong. Rec. H 11441, H 11457 (daily ed. Nov. 29, 1994) (statement 1172 of Rep. Hughes)); Martignon, 346 F.Supp.2d at 419. But see 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8E.05[A] (2005) ("In the context of Chapter 11 [of Title 17], the question arises how Congress viewed its enactment authority. There is no answer."). The Statute was placed within Title 17, and incorporates the statutory remedies for copyright infringement.[7] 17 U.S.C. § 1101(a). It appears unlikely, however, that Congress could have derived the power to enact the Statute from the Copyright Clause. See, e.g., Moghadam, 175 F.3d at 1274 ("[A]lthough in the modern era the term `Writings' allows Congress to extend copyright protection to a great many things, those things have always involved some fixed, tangible and durable form."); KISS Catalog, 350 F.Supp.2d at 831 ("[I]t would seem that a live performance protected by § 1101 is not a fixed work. . . . Thus, one would be inclined to think that . . . live performances could not be regulated via the Copyright Clause."); Martignon, 346 F.Supp.2d at 424 ("[B]y virtue of the fact that it regulates unfixed live performances, the anti-bootlegging statute is not within the purview of Congress' Copyright Clause power."); 1 Nimmer, Nimmer on Copyright, supra, § 1.08[C][2] ("If the word `writings' is to be given any meaning whatsoever, it must, at the very least, denote `some material form, capable of identification and having a more or less permanent endurance.'" (citation omitted)); Susan M. Deas, Jazzing Up the Copyright Act? Resolving the Uncertainties of the United States Anti-Bootlegging Law, 20 Hastings Comm. & Ent. L.J. 567, 578 (1998); David Nimmer, The End of Copyright, 48 Vand. L.Rev. 1385, 1409 (1995) ("[N]o respectable interpretation of the word `Writings' embraces an untaped performance of someone singing at Carnegie Hall."). This does not end the analysis, however, as Congress' intent is not dispositive. See Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144, 68 S.Ct. 421, 92 L.Ed. 596 (1948) ("The question of the constitutionality of action taken by Congress does not depend on the recitals of the power which it undertakes to exercise."). Moreover, "[d]ue respect for the decisions of a coordinate branch of Government demands that [courts] invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). There is a "presumption of constitutionality." Id. Therefore, it is the Court's obligation to look elsewhere for a source of congressional power to enact the Statute. The United States argues that the Commerce Clause grants such authority. This Court agrees with the United States and with the Eleventh Circuit's analysis in Moghadam, 175 F.3d at 1274-77. Indeed, Judge Rea believed the Statute could be enacted under the Commerce Clause if not for the conflict with the Copyright Clause. 1173 KISS Catalog., 350 F.Supp.2d at 833-34 and n. 7 ("[T]hat copyright-like protection for live performances touches on commerce is a proposition that should be without serious dispute.") Though Martignon criticized Moghadam's "swift conclusion" that the legislation is authorized under the Commerce Clause (potential Copyright Clause limitations aside), this Court agrees that the Statute is well within Congress' Commerce Clause powers as broadly defined by, inter alia, Gonzales v. Raich, ___ U.S. ___, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), and Lopez. As the United States Supreme Court most recently made clear in these cases,[8] Congress' authority to enact legislation pursuant to the Commerce Clause has been interpreted broadly in the modern era. Indeed, Supreme Court "case law firmly establishes Congress' power to regulate [even] purely local activities that are part of an economic `class of activities' that have a substantial effect on interstate commerce." Raich, 125 S.Ct. at 2205 (citations omitted). This is true even where the affected market is an illegal one. Id. at 2206 (acknowledging an illegal market for marijuana). Moghadam assumed, without deciding, that the anti-bootlegging legislation could not stand under the Copyright Clause. 175 F.3d at 1274. It simply turned to an alternate source, the Commerce Clause, noting that the test of constitutionality under that clause is "`whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce.'" Id. at 1275 (quoting Lopez, 514 U.S. at 557, 115 S.Ct. 1624). Even in the absence of legislative findings of an interstate commerce nexus, the court easily concluded: "The link between bootleg compact discs and interstate commerce and commerce with foreign nations is self-evident." Id. at 1276. "Bootleggers depress the legitimate markets because demand is satisfied through unauthorized channels." Id. In addition, that § 1101 was enacted in connection with an international treaty called for by the World Trade Organization establishes its connection with if not its reliance on interstate and international commerce. Id.; accord Howe, supra, at 846 (citing, inter alia, Office of United States Trade Representative, at http://www.ustr.gov. (last visited March 19, 2005)). This Court finds that the Commerce Clause grants Congress the power to enact the Statute.[9] B. The Statute Is Not "Fundamentally Inconsistent" With the Copyright Clause Though Judge Rea and the court in Martignon next considered whether the anti-bootlegging law was fundamentally inconsistent with the Copyright Clause, that step is not necessarily mandated. Arguably, a determination that the Statute does not fall within the ambit of the Copyright Clause ends the analysis. In general, the various grants of legislative authority contained in the Constitution stand alone and must be independently analyzed. In other words, each of the powers of Congress is alternative to all of the other powers, and what cannot be done under one of them may very well be doable under another. 1174 Moghadam, 175 F.3d at 1277 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), and The Trade-Mark Cases, 100 U.S. 82, 25 L.Ed. 550 (1879)). In contrast, Martignon, concluded: In order to give meaning to the express limitations provided in the Copyright Clause, when enacting copyright-like legislation, such as the anti-bootlegging statute, . . . Congress may not, if the Copyright Clause does not allow for such legislation, enact the law under a separate grant of power, even when that separate grant provides proper authority. 346 F.Supp.2d at 424-25. The court provides no authority for this conclusion, however. Instead, as discussed below, it reads the Copyright Clause too broadly, and circumscribes Congress' power under other constitutional grants of authority too narrowly. Judge Rea, following Martignon, deemed the Statute "copyright-like," KISS Catalog, 350 F.Supp.2d at 830, and then proceeded to the conclusion that the power to regulate a subject matter that admittedly does not fall within the parameters of the Copyright Clause is nevertheless subject to the limitations imposed by that clause. Id. at 837. This characterization, even if valid, is not particularly helpful. As the United States points out, nothing prohibits Congress from protecting similar things in different ways so long as some provision of the United States Constitution allows it to do so. Railway Labor Executives' Association v. Gibbons, 455 U.S. 457, 102 S.Ct. 1169, 71 L.Ed.2d 335 (1982) is not to the contrary. There the Supreme Court examined the definition of "bankruptcy," the language of the challenged legislation, the events surrounding its passage, and its legislative history, and concluded that "Congress was exercising its powers under the Bankruptcy Clause." Id. at 466-68. In other words, it was a bankruptcy statute not a "bankruptcy-like" statute. Neither the appellant nor the United States argued that Congress could have enacted the law pursuant to the Commerce Clause. Id. at 468. The Supreme Court noted that the Commerce Clause does not require uniformity of regulation; therefore, if it held that the Commerce Clause did provide authority for nonuniform bankruptcy laws, the Court "would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws." Id. at 468-69, 102 S.Ct. 1169. The analysis here is different. All parties, and all authorities cited, agree that Congress does not have the authority to legislate concerning live performances under the Copyright Clause. Finding that Congress does have the authority to do so under the Commerce Clause does not negate any of the purposes of, protections afforded by, or limitations established by, the Copyright Clause. Thus the Railway Labor analysis does not apply. Accord Adam Giuliano, Steal This Concert? The Federal Anti-Bootlegging Statute Gets Struck Down, But Not Out, 7 Vand. J. Ent. L. & Prac. 373 (2005); cf. United States v. Elcom Ltd., 203 F.Supp.2d 1111, 1138-42 (N.D.Cal.2002) (Digital Millenium Copyright Act within Congress' Commerce Clause power due to lack of fundamental inconsistency with Copyright Clause). The Court again agrees with the United States (and Moghadam) that the analysis of The Trade-Mark Cases is more to the point. There, the Supreme Court noted that legislation that could not be permitted under the Copyright Clause could nevertheless pass muster under the Commerce Clause if the independent requirements of that clause were met. 100 U.S. at 94-96. Under the more restrictive view of the Commerce Clause that prevailed at the 1175 time, those requirements were not met. Id. As noted above, modern case law has expanded the interpretation of the Commerce Clause and modern cases upholding trademark protection are based on the Commerce Clause. See, e.g., Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833, 838 (11th Cir.1983). Therefore, once the Court concludes that the Statute does not fall within the purview of the Copyright Clause, it need no longer consider whether it complies with the limitations of the Copyright Clause. To do so imports into the Commerce Clause limits that clause does not have. That the Statute might provide "copyright-like" or "copyright-related" protection to matters clearly not covered by the Copyright Clause is not important. One need only find an alternative source of constitutional authority. This Court finds such authority in the Commerce Clause. Cf. Authors League of Am., Inc. v. Oman, 790 F.2d 220, 224 (2d Cir.1986) (manufacturing clause of the Copyright Act constitutional under the Commerce Clause). Neither the court in Martignon nor Judge Rea gave sufficient deference to the fundamental premise that legislation is presumed to be constitutional. See Morrison, 529 U.S. at 607, 120 S.Ct. 1740. Rather, they seemed to feel compelled to choose between the several enumerated powers that might apply and to choose in a way that rendered the Statute unconstitutional (at least in their view) for failure to meet the "for limited Times" limitation. The Martignon court concluded: "That the anti-bootlegging statute has its roots in an inter-country initiative cannot save the statute; it does not serve to transform what appears on its face to be an intellectual property statute into one whose primary purpose is to regulate commerce." 346 F.Supp.2d at 421. But nowhere does the court explain why only a statute's "primary purpose" can be considered in determining its constitutionality. As noted, the Copyright Clause allows Congress to protect a narrowly defined subject matter within defined parameters. The Statute addresses a similar, but different, subject matter. This Court agrees with Moghadam: We hold that the Copyright Clause does not envision that Congress is positively forbidden from extending copyright-like protection under other constitutional clauses, such as the Commerce Clause, to works of authorship that may not meet the fixation requirement inherent in the term "Writings." The grant itself is stated in positive terms, and does not imply any negative pregnant that suggests that the term "Writings" operates as a ceiling on Congress' ability to legislate pursuant to other grants. Extending quasi-copyright protection to unfixed live musical performances is in no way inconsistent with the Copyright Clause, even if that Clause itself does not directly authorize such protection. 175 F.3d at 1280. At least one author opined that Judge Rea "wrongly ignor[ed] the basic tenet that courts should when possible protect the constitutionality of statutes through their interpretive judgments." 1 Raymond T. Nimmer, Information Law § 6:30 (2005). The "fundamental conflict" standard gives deference to the separate, co-equal character of constitutional grants, creating preemptive conflict only where the separate enactment conflicts with a core and explicit, broad limitation of the other constitutional power. In this respect, the Copyright Clause speaks only to the creation of a separate, limited constitutional grant and, unlike concepts such as are in Due Process and Fourth Amendment rules, does not place broad limitations on any and all exercises of congressional power. Thus the [Moghadam] 1176 court's analysis was clearly correct. Id. As Nimmer goes on to state: An important aspect of the KISS Catalog [] result was its further conclusion that, while the statute could have been enacted under the Commerce Clause (which contains no time limitation), Commerce Clause powers could not be invoked to subvert an express limitation in the Copyright Clause. This conclusion creates an unwarranted hierarchy among otherwise seemingly co-equal constitutional grants and is particularly suspect in a modern era in which Commerce Clause authority is broadly construed. It hinges entirely on the court's belief that, in some fashion, this statute was a "copyright-like" enactment and, thus, governed entirely and solely by the Copyright Clause. Id. With regard to Martignon's holding that the criminal version of the statute also violates the "Writings" provision (an issue not addressed by Judge Rea), Nimmer comments: This . . . analysis . . . only holds if one assumes that the limitations of the Copyright Clause dominate other provisions of the Constitution, a conclusion that is conducive in this instance to a restrictive view of Congressional power to provide for rights in information products, but that has little grounding in constitutional history or the purpose of a clause that was intended to create a power, rather than comprehensively limit governmental conduct. Id. Even if a "fundamental conflict" with the Copyright Clause would invalidate the Statute, none exists here. Considering whether the Copyright Clause prevents Congress from exercising its Commerce Clause power perpetually to prohibit boot-legging or more specifically, the dissemination of bootlegged recordings[10] the Court concludes it does not. As indicated previously, the Statute merely proscribes conduct not otherwise addressed, prohibited or protected by the Copyright Clause: the non-consensual recording of a live performance. Stated differently, what Congress regulates here is an unauthorized and (by this statute) unlawful recording of a live performance, not an authorized, protected, and constitutionally-encouraged fixation of an author's original work. Thus, the Statute complements, rather than violates, the Copyright Clause by addressing similar subject matter, not previously protected or protectible under the Copyright Clause. See Giuliano, supra, at 373 ("Properly construed, the anti-bootlegging statute serves as a complement to copyright regulation, rather than a derogation from it."). In contrast to Railway Labor, the question is not whether legislation empowered by the Copyright Clause but invalid under it can otherwise be empowered by the Commerce Clause. The question is whether matters not encompassed within the Copyright Clause can be addressed by the Commerce Clause free of the restrictions of the Copyright Clause. The answer to that question is, clearly, yes. One does not have to stretch the presumption of constitutionality to conclude that legislation that prevents dissemination in perpetuity of an unauthorized videotape by a third-party of a live performance does not conflict with a clause that protects, "for limited Times," the voluntarily disseminated "Writings" of authors. That portion of the Order that holds the Statute unconstitutional is hereby vacated. 1177 CONCLUSION For the reasons stated above, the motion to reconsider is granted, the portion of the Order holding 17 U.S.C. § 1101(a)(3) unconstitutional is vacated, and Defendants' motion to dismiss the Seventh Claim for Relief on the grounds that 17 U.S.C. § 1101(a)(3) is unconstitutional is DENIED. NOTES [1] Defendants also moved to dismiss the Seventh Claim for Relief on the grounds that it was inconsistent with the Eighth Claim for Relief for copyright infringement, and that the alleged conduct occurred before the time period covered by § 1101. In addition, Defendants moved to dismiss the Eighth Claim on the grounds that it conflicted with an exhibit attached to the complaint and was inconsistent with the Seventh Claim. Judge Rea denied those portions of the motion. KISS Catalog, 350 F.Supp.2d at 826-29. The United States does not seek reconsideration of those portions of the Order. [2] 28 U.S.C. § 2403(a) provides: In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene . . . for argument on the question of constitutionality. [3] Defendants argue that the request for reconsideration should be denied because the United States cannot point to any new law or new evidence, and that Local Rule 7-18 likewise does not permit reconsideration. The authorities cited by Defendants do not contemplate the situation where a party legally permitted to participate was excluded from the proceedings. [4] All three decisions are thoroughly and impressively researched. This Court relies on their discussion of the history of the anti-bootlegging legislation. [5] "Bootlegging" is "the making of an unauthorized copy of a commercially unreleased performance," and is distinct from "piracy," which is an unauthorized duplication of an authorized recording. Moghadam, 175 F.3d at 1272 n. 3 (citation and internal quotation marks omitted). [6] This clause has also been referred to as the Intellectual Property Clause. [7] Judge Rea held that the Statute did not incorporate 17 U.S.C. § 302, which limits the duration of copyright protection. KISS Catalog, 350 F.Supp.2d at 832. At least one author has touted incorporating that durational limit into the Statute as an approach to preserving constitutionality. Angela T. Howe, United States v. Martignon and Kiss Catalog v. Passport International Products: The Anti-Bootlegging Statute and the Collision of International Intellectual Property Law and the United States Constitution, 20 Berkeley Tech. L.J. 829, 851 (2005). The United States had not addressed this issue and the Court requested further briefing. Because the United States agreed that the durational limitation of 17 U.S.C. § 302 cannot be incorporated into the Statute, the Court assumes, without deciding, that it is not incorporated. [8] Raich, of course, was issued after both Judge Rea and the court in Martignon considered the issue. [9] Because the Court finds § 1101(a)(3) valid under the Commerce Clause, the Court need not consider whether it might alternatively be authorized under the Necessary and Proper Clause. There has been some suggestion that the Necessary and Proper Clause would even more clearly provide a constitutional source for the Statute. Howe, supra, at 847-50. [10] Only § 1101(a)(3) is at issue here.	{ "pile_set_name": "FreeLaw" }
774 F.2d 1172 Roman-Romerov.Immigration 85-5070 United States Court of Appeals,Eighth Circuit. 9/20/85 AFFIRMED	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR PUBLICATION File Name: 20a0255n.06 Case No. 18-5004 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 06, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF TRAVIS O’DELL, ) TENNESSEE ) Defendant-Appellee. ____________________________________/ Before: MERRITT, SUHRHEINRICH, and SUTTON, Circuit Judges. MERRITT, Circuit Judge. This case is controlled by the case of United States v. Brown, decided by the Sixth Circuit on April 24, 2020. The Brown case decides the same questions raised here. The government appeals the district court’s 2017 judgment granting Petitioner Travis O’Dell habeas relief under 28 U.S.C. § 2255. The district court granted O’Dell relief under our en banc decision in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), which held that an aggravated burglary in Tennessee did not qualify as a “violent felony” under the Armed Career Criminal Act (the Act), 18 U.S.C. § 924(e)(1). The Supreme Court overruled that decision in United States v. Stitt, 139 S. Ct. 399 (2018). Because the legal basis on which the district court granted O’Dell relief is no longer good law, and because Brown forecloses O’Dell’s arguments, we REVERSE the district court’s judgment granting him relief and REMAND for the court to reinstate his original sentence. Case No. 18-5004, United States v. O’Dell I. On December 10, 2014, O’Dell pled guilty to violating 18 U.S.C. § 922(g)(1),1 felon in possession of a firearm and ammunition. The Presentence Investigation Report identified twelve previous convictions of aggravated burglary in Tennessee. At the time, a Tennessee aggravated burglary qualified as a “violent crime” for purposes of the Act under United States v. Nance, 481 F.3d 882 (6th Cir. 2007). As such, O’Dell was classified as an armed career criminal and thus subject to the Act’s mandatory minimum sentence of fifteen years.2 The district court, on April 16, 2015, sentenced O’Dell to a term of imprisonment of 180 months to run concurrently with any sentence imposed by the Tennessee State Court, and a 3-year term of supervised release. O’Dell did not file a direct appeal. On June 6, 2016, O’Dell filed a 28 U.S.C. § 2255 motion challenging his armed career criminal status following the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the Act’s residual clause as unconstitutionally vague. At the government’s request, the district court stayed the proceedings until our en banc court decided United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (Stitt I), which held that a conviction of Tennessee aggravated burglary did not qualify as a violent felony under the Act. The district court then granted O’Dell’s petition under Stitt I. The Supreme Court, however, soon reversed our en banc decision and held that a conviction under Tennessee’s aggravated burglary statute indeed qualifies as a violent felony 1 18 U.S.C. § 922(g)(1) makes it “unlawful for any person . . . who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year[] . . . to . . . possess in or affecting [interstate] commerce, any firearm or ammunition[.]” 2 The Act imposes a mandatory minimum sentence of imprisonment of fifteen years for felons in possession of a firearm with three or more previous convictions of “violent felonies.” 18 U.S.C. § 924(e)(1). -2- Case No. 18-5004, United States v. O’Dell under the Act. United States v. Stitt, 139 S. Ct. 399 (2018) (Stitt II). Stitt II is the basis of the government’s appeal. II. We review de novo a district court’s determination of whether a prior conviction qualifies as a violent felony under the Act. See Brumbach v. United States, 929 F.3d 791, 794 (6th Cir. 2019) (citing Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016)). The Act mandates a minimum fifteen-year prison sentence for those who violate 18 U.S.C. § 922(g) and have three previous convictions for “violent felonies.” 18 U.S.C. § 924(e)(1). Relevant here, the Act defines “violent felony” as, among other things, “burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). “To decide if a defendant’s prior conviction under a state’s burglary statute qualifies as a conviction for ‘burglary’ under [the Act], the Supreme Court adopted the so-called ‘categorical approach’ in Taylor v. United States, 495 U.S. 575 (1990).” United States v. Brown, -- F.3d --, No. 18-5356, 2020 WL 1966845, at 1 (6th Cir. Apr. 24, 2020) (citing Stitt II, 139 S. Ct. at 405). The categorical approach compares a state statute’s elements of burglary to the elements of the “generic” definition of burglary that the Supreme Court adopted in Taylor. See id. (citing Stitt II, 139 S. Ct. at 405). The Taylor Court defined “generic burglary” as an “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598. “If a state burglary statute sweeps in more conduct than this generic definition of the crime, convictions under the state statute will not qualify as convictions for ‘burglary’ under the [Act].” Brown, 2020 WL 1966845, at 1 (citing Mathis v. United States, 136 S. Ct. 2243, 2247‒48 (2016)). In Tennessee, “aggravated burglary” is a “burglary of a habitation as defined in §§ 39-14- 401 and 39-14-402.” Tenn. Code Ann. § 39-14-403(a). A person commits burglary in Tennessee -3- Case No. 18-5004, United States v. O’Dell if that person, “without the effective consent of the property owner”, (1) “[e]nters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;” (2) “[r]emains concealed, with the intent to commit a felony, theft or assault, in a building;” (3) “[e]nters a building and commits or attempts to commit a felony, theft or assault;” or (4) “[e]nters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.” Id. at § 39-14-402(a)(1)-(4). “Habitation” means “any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons[.]” Id. at § 39-14-401(1)(A).3 In United States v. Nance, 481 F.3d 882 (6th Cir. 2007), “we held that an aggravated- burglary conviction under Tennessee law categorically counts as a burglary under the Supreme Court’s generic definition and so falls within [the Act].” Brown, 2020 WL 1966845, at 2 (citing Nance, 481 F.3d at 888). Ten years later, in Stitt I, our en banc court overruled Nance and held that “a violation of Tennessee’s aggravated burglary statute is not categorically a violent felony.” Stitt I, 860 F.3d at 861. And in 2018, the Supreme Court unanimously reversed our en banc decision. Stitt II, 139 S. Ct. at 403‒04. Nance is thus “once again the law of this circuit.” See Brown, 2020 WL 1966845, at 3 (quoting Burbach, 929 F.3d at 794). O’Dell offers three arguments for why Tennessee’s aggravated burglary statute does not comport with Taylor’s definition of “generic burglary.” First, he maintains that the “entry” element of the statute is such that it criminalizes a “mere attempted burglary”, which does not qualify as generic burglary under the Act. Second, O’Dell contends that a person can violate 3 Habitation also “[i]ncludes a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant” and a “separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.” Id. at § 39-14-401(1)(B)‒(C). -4- Case No. 18-5004, United States v. O’Dell Tennessee’s aggravated burglary statute with “merely reckless conduct” as opposed to the “intent to commit a crime” as required by Taylor. Third, and finally, O’Dell says that we are unable to determine if his previous convictions of violent felonies occurred on different occasions as required by the Act. We address each argument in turn. A. O’Dell argues that Tennessee aggravated burglary cannot qualify as a “burglary” under the Act because the definition of “enter” in Tennessee’s burglary statute4 encompasses more conduct than “generic burglary” as defined in Taylor, and criminalizes conduct that would be only an attempted burglary at common law. O’Dell concedes that we rejected the “entry” argument in Brumbach. Brumbach, 929 F.3d at 795. We did so because “a panel of this court cannot overrule Nance.” Brumbach, 929 F.3d at 795. And, since Brumbach, we have rejected the argument most recently in our opinion in Brown. See Brown, 2020 WL 1966845, at 7.5 B. The same goes for O’Dell’s intent argument. O’Dell posits that generic burglary, under Taylor, requires that a defendant have intent to commit a crime while within the building. Taylor, 495 U.S. at 599. O’Dell states that, specifically, under Tenn. Code Ann. § 39-14-402(a)(3), a defendant can be convicted for merely reckless conduct. The petitioner in Brown lodged the same argument, and as we pointed out there, “it is not clear under our precedent that we may rely on this new argument to conclude that all Tennessee aggravated-burglary convictions fall outside the Act.” Brown, 2020 WL 1966845, at 7. This is 4 “Enter” is defined as “(1) [i]ntrusion of any part of the body; or (2) [i]ntrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.” Tenn. Code Ann. § 39-14- 402(b)(1)‒(2). 5 While we do not discuss the merits of O’Dell’s argument regarding the entry element of the statute, we note that Brown questioned the merits of this argument. See id. at 5‒13. -5- Case No. 18-5004, United States v. O’Dell because we have “held, broadly, that convictions under subsections (a)(1), (a)(2), and (a)(3) of the Tennessee burglary statute fit within the generic definition of burglary and are therefore violent felonies for purposes of the [Act].” Id. (citing Brumbach, 929 F.3d at 794 (quoting United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (internal quotation marks omitted)). If “we have previously rejected other attempts to bring new arguments challenging those prior holdings[,]” it follows that those cases foreclose O’Dell from raising this “intent” argument. See id. (citing Brumbach, 929 F.3d at 795). Moreover, like the petitioner in Brown, O’Dell was indicted for and convicted of violating subsection (a)(1), not subsection (a)(3). See id. Although O’Dell’s indictments for aggravated burglary do not specify under which subsection he was charged, each charged that O’Dell “did . . . unlawfully and without the effective consent . . . of the owner of a habitation, knowingly enter such habitation, which was not open to the public, with intent to commit theft, in violation of T.C.A. Section 39-14-403[.]” Just like in Brown, “[t]hat language mirrors the language of § 39- 14-402(a)(1).” Brown, 2020 WL 1966845, at 13. The “(a)(1) version contains the ‘intent’ requirement that [O’Dell] claims the (a)(3) version lacks: It forbids a person, without the ‘effective consent of the property owner,’ to ‘enter a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault.’” Id. at 14 (quoting Tenn. Code Ann. §§ 39-14- 402(a)(1), 39-14-403) (alterations omitted). It also aligns with “the Supreme Court’s definition of generic burglary: the ‘unlawful or unprivileged entry into’ ‘a building or other structure, with intent to commit a crime.’” Id. (quoting Stitt II, 139 S. Ct. at 405‒06). Thus, O’Dell’s aggravated- burglary convictions qualify as violent felonies under the Act. See id. -6- Case No. 18-5004, United States v. O’Dell C. Finally, O’Dell maintains that we cannot determine if his burglary and aggravated burglary convictions were committed on different occasions. The Act requires conviction of three violent felonies that were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Specifically, O’Dell contends that under Shepard v. United States, 544 U.S. 13 (2005), courts may consider only the crimes of conviction and the elements thereof in making this determination, and dates of the convictions or offenses fall into neither category. As O’Dell concedes, we rejected this argument in United States v. Hennessee, 932 F.3d 437, 444 (6th Cir. 2019), and we have since rejected it in Brown, 2020 WL 1966845, at 8. We reject it here, too. O’Dell’s argument also fails on the merits. O’Dell must show by a preponderance of the evidence that his prior violent felonies did not occur on different occasions. See id. at 8 (citing Packett v. United States, 738 F. App’x 348, 352 (6th Cir. 2018) and Potter v. United States, 887 F.3d 785, 787‒88 (6th Cir. 2018)). We may look to “charging documents” in deciding if O’Dell committed his prior felonies on different occasions. See United States v. King, 853 F.3d 267, 276 (6th Cir. 2017). State-court indictments qualify as such. See Brown, 2020 WL 1966845, at 8 (citing King, 853 F.3d at 275‒76)). There are three indictments that each charge O’Dell with one count of aggravated burglary on a separate occasion in 1995, each involving a different victim. Additionally, another indictment charges O’Dell with five counts of aggravated burglary on four separate occasions in 2003. Thus, the “charging documents” show that O’Dell committed aggravated burglary on at least seven different occasions. O’Dell therefore cannot meet his burden. For the reasons stated above, we VACATE the district court’s 2017 order granting O’Dell relief, and REMAND with instructions to reinstate his original sentence. -7-	{ "pile_set_name": "FreeLaw" }
Case: 14-13329 Date Filed: 09/03/2015 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-13329 Non-Argument Calendar ________________________ D.C. Docket No. 5:13-cv-00283-CAR-CHW JERRY GUEST, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, UNITED STATES POSTAL SERVICE, JOHN AND OR JANE DOE, Postmaster Unadilla, GA, Defendants-Appellees, JOHN AND OR JANE DOES, Two unidentified postal employees, Defendants. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (September 3, 2015) Case: 14-13329 Date Filed: 09/03/2015 Page: 2 of 4 Before JORDAN, JILL PRYOR and BLACK, Circuit Judges. PER CURIAM: Jerry Guest, a state prisoner proceeding pro se, appeals the district court’s dismissal of his complaint for failure to state claim. Guest argues (1) the Postmaster of Unadilla, Georgia denied his constitutional right of access to the courts; (2) the Postmaster violated his due process rights by falsely accusing him of making threats, which caused his three-day confinement in involuntary segregation; and (3) his state law claims are not barred by the federal government’s sovereign immunity. As Guest is familiar with the facts of his case, we weave them into the discussion only as necessary. Upon review, we affirm. 1 I. DISCUSSION A. Access to Courts The district court did not err in concluding the complaint failed to state a violation of Guest’s constitutional right of access to the courts. A litigant asserting a denial-of-access-to-courts claim must prove he has a “colorable underlying claim for which he seeks relief.” Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir. 2006). The complaint must identify a nonfrivolous, arguable underlying claim “described well enough . . . to show that the arguable nature of the underlying 1 We review de novo a district court’s sua sponte dismissal of a complaint for failure to state a claim under 28 U.S.C. § 1915A(b)(1), using the same standards that govern Federal Rule of Civil Procedure 12(b)(6) dismissals. Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278–79 (11th Cir. 2001). We accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008). 2 Case: 14-13329 Date Filed: 09/03/2015 Page: 3 of 4 claim is more than hope.” Cunningham v. Dist. Attorney’s Office for Escambia Cty., 592 F.3d 1237, 1271 (11th Cir. 2010) (quotation and internal quotation marks omitted). Guest has not sufficiently alleged a colorable, nonfrivolous underlying claim. See Barbour, 471 F.3d at 1226. The complaint merely says Guest mailed a motion for reconsideration to the Georgia Court of Appeals and that, had the motion been timely, it would have been granted. The complaint’s blanket assertions do not show Guest’s underlying claim was “more than hope.” See Cunningham, 592 F.3d at 1271 (quotation omitted). B. Due Process The district court did not err in concluding the complaint failed to state a violation of due process arising from Guest’s confinement in involuntary segregation. Guest’s due process theory requires alleging not only the deprivation of a liberty interest, but also that such deprivation “impose[d] atypical and significant hardship” relative “to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 483–44 (1995). Guest’s complaint, however, alleges only that he was placed in involuntary segregation as a result of the alleged deprivation. Guest’s complaint fails to state a claim because he has not alleged specific facts showing involuntary segregation at his facility is an “atypical and significant hardship” in relation to ordinary prison life. Id. at 484. C. Federal Tort Claims Act 3 Case: 14-13329 Date Filed: 09/03/2015 Page: 4 of 4 The district court did not err in dismissing Guest’s state law claims brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. The federal government’s waiver of sovereign immunity though the FTCA is subject to certain statutory exceptions, Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015), one of which is the exception from “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter,” 28 U.S.C. § 2680(b). Since Guest’s FTCA claims are premised on the Postmaster’s purported miscarriage of mail, they are barred by the federal government’s sovereign immunity. II. CONCLUSION In light of the foregoing reasons, we affirm the district court’s dismissal of Guest’s complaint. AFFIRMED. 4	{ "pile_set_name": "FreeLaw" }
571 F.3d 1013 (2009) UNITED STATES of America, Plaintiff-Appellee, v. Alejandro BELTRAN, Defendant-Appellant. No. 08-2191. United States Court of Appeals, Tenth Circuit. June 12, 2009. 1015 Erlinda O. Johnson, Law Office of Erlinda Ocampo Johnson, LLC, Albuquerque, NM, for Defendant-Appellant. David N. Williams, Assistant United States Attorney, (Gregory J. Fouratt, United States Attorney for the District of New Mexico, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee. Before KELLY and LUCERO, Circuit Judges, and EAGAN,[] District Judge. EAGAN, District Judge. Defendant-Appellant Alejandro Beltran pled guilty to conspiracy to distribute 100 grams of more of heroin in violation of 21 U.S.C. § 846 and was sentenced to 151 months in prison. On appeal, Defendant contends that the district court erred when it denied his motion for a variance based on alleged sentencing factor manipulation. He argues that the district court was not bound by the more rigid standard for a downward departure for claims of outrageous governmental conduct, and the district court should have exercised its discretion under United States v. Booker, 543 1016 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the 18 U.S.C. § 3553(a) factors to vary downward from the applicable guideline range. He also contends that the district court erred by enhancing his sentence for his role in the offense and for possession of a firearm. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold that Defendant's request for a variance was not governed by the pre-Booker standard for a departure for outrageous governmental conduct, but the district court did not abuse its discretion by imposing a sentence within the applicable guideline range. We further hold that the district court did not err in its application of the sentencing guidelines. I. BACKGROUND On October 23, 2007, a grand jury returned a twenty-two count indictment against Defendant and five others. The indictment resulted from a joint investigation of the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA) known as Operation Brown Sugar. Count One of the indictment alleged that Defendant conspired with others to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846. Specifically, the defendants were charged with conspiring to import heroin from Mexico with the use of altered shoes to conceal the heroin during transport, and distributing the heroin in Albuquerque, New Mexico. On November 21, 2007, pursuant to a plea agreement, Defendant pled guilty to an information charging him with conspiracy to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846. Under 21 U.S.C. § 841(b)(1)(B), Defendant faced a mandatory minimum sentence of five years and a statutory maximum sentence of 40 years. Before the sentencing hearing, a presentence investigation report (PSI) was prepared. The PSI stated that Defendant's base offense level was 32 due to the stipulated drug quantity in the plea agreement. The probation officer recommended a two level enhancement under § 2D 1.1(b)(1) of the United States Sentencing Guidelines (USSG) for possession of a firearm during a drug trafficking offense, but the PSI did not contain an enhancement for Defendant's role in the offense under USSG § 3B1.1. Defendant received a three level decrease for acceptance of responsibility. Based on these findings and Defendant's criminal history category of I, the PSI recommended a total offense level of 31 and a sentencing range of 108 to 135 months. Defendant requested a downward variance, and objected to the two-level enhancement for possession of a firearm on the ground that he was the victim of outrageous governmental conduct because government agents allegedly engaged in conduct for the specific purpose of enhancing Defendant's sentence. The government objected to the PSI because it did not include an enhancement for Defendant's role in the offense, and requested a four-level enhancement under USSG § 3B1.1. At the sentencing hearing on July 28, 2008, the government offered the testimony of three witnesses who participated in the investigation. Officer Mizel E. Garcia of the Albuquerque Police Department testified that he participated in undercover operations in coordination with the DEA. He participated in a controlled buy of heroin from Defendant and a co-conspirator, Rueben Mendez-Zavala, on August 31, 2007, and another officer reported to Officer Garcia that he observed that Defendant was armed with a small caliber handgun during the transaction. FBI Special Agent James Kraus testified that investigators intercepted telephone calls, by 1017 means of a wiretap, between Defendant and persons identified as "mom" and "dad" to arrange shipments of heroin to the United States. Special Agent Kraus testified that, when Defendant was arrested on October 23, 2007 following a controlled buy, agents recovered a .40 caliber Smith & Wesson automatic handgun from Defendant's jacket pocket. Defendant concealed the handgun during the controlled buy and agents were not aware of the handgun until they searched Defendant following his arrest. New Mexico State Police Officer Miguel Mendez testified that he made undercover buys from Defendant and specifically set up a controlled buy for October 23, 2007. He arranged the controlled buy for that date with the intention that Defendant would be arrested following the transaction, but he did not ask Defendant to bring a firearm to the sale. The district judge reviewed the evidence presented at the sentencing hearing and the parties' objections to the PSI. He determined that Defendant should receive an enhancement under USSG § 2D1.1 for possession of firearm based on evidence showing that Defendant had the .40 caliber handgun in his jacket pocket at the time of his arrest. He sustained in part the government's objection to the PSI concerning the lack of an enhancement for Defendant's role in the offense, but found that a three level enhancement under USSG § 3B1.1 (rather than four) was appropriate. Although the evidence did not show that Defendant supervised five or more people, the district judge found that Defendant had a leadership role in an extensive drug trafficking organization, the organization used a sophisticated delivery method and transported a large amount of heroin, and Defendant supervised at least one other person. Based on these findings, Defendant's total offense level was 34 and his sentencing range was 151 to 188 months. The district judge denied Defendant's request for a variance based on alleged sentencing entrapment or sentencing factor manipulation. Finding that a sentence at the low end of the advisory guideline range would be reasonable, the district judge sentenced Defendant to 151 months imprisonment. II. DISCUSSION Defendant challenges the sentence imposed by the district court on three grounds. First, Defendant claims that the district court erred when it denied his motion for variance requesting a non-guideline sentence due to sentencing factor manipulation, sentencing entrapment, and consideration of the § 3553(a) factors. Second, Defendant asserts that the district court did not make specific findings supporting a three-level enhancement for his role in the offense and, considering the factual findings made by the district court, this enhancement was improper. Third, Defendant claims that the district court erred by imposing a two-level enhancement for his possession of a firearm during the charged offense, because the conduct of undercover agents constituted sentencing entrapment or sentencing factor manipulation. A. Defendant's Request for a Variance Defendant asserts that the district court erred by refusing to grant his request for a variance based on alleged sentencing entrapment or manipulation by government agents. At the sentencing hearing, Defendant requested a "variance" but relied on case law discussing the availability of a downward departure for sentencing entrapment or sentencing factor manipulation. While Defendant may have relied on law applicable to sentencing departures, his request for sentencing relief was phrased as a request for a variance. Appellant's App. at 220 ("And I would ask 1018 that the Court ... consider that factor of sentencing factor manipulation in granting a variance in this case"). The district court treated Defendant's argument as a request for a variance and did not address the possibility of a downward departure for sentencing factor manipulation. Id. at 245. Therefore, we will treat Defendant's argument concerning sentencing entrapment or manipulation as a request for a variance under the factors set forth in 18 U.S.C. § 3553(a), and consider how the law applicable to departures on the ground raised by Defendant informs the district court's decision to grant or deny a variance. This court reviews a district court's decision to grant or deny a request for variance under a deferential abuse of discretion standard. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.2008). "A district court abuses its discretion `when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.'" Id. (quoting United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir.2008)). When the district court's sentence falls within the properly calculated guideline range, this Court must apply a rebuttable presumption that the sentence is reasonable. United States v. Sells, 541 F.3d 1227, 1237 (10th Cir.2008). "The presumption of reasonableness is, however, `a deferential standard [the defendant] may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a).'" Id. (quoting United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006)). Defendant sought a variance based on alleged sentencing factor manipulation by government agents and application of the § 3553(a) factors. He claims that government agents pressured him into bringing a gun and additional quantities of heroin to drug sales specifically for the purpose of enhancing Defendant's sentence. Focusing on the agents' conduct, Defendant relies on conversations between undercover agents when they discussed whether to ask Defendant to sell them a gun. Defendant claims that he would not have brought a gun to a drug sale but for the conduct of government agents, and the district court should have reduced his sentence based on outrageous governmental conduct. He also argues that the district court failed to take into account the § 3553(a) factors, such as Defendant's youth and lack of guidance, in determining an appropriate sentence for him. He claims that he moved to the United States after his father was murdered in Mexico and, due to his youth and inexperience, he became involved in a drug trafficking organization. Defendant asserts that the district court abused its discretion by refusing to grant a variance under these circumstances. Defendant argues a district court has discretion to consider sentencing factor manipulation or entrapment as a basis for variance under 18 U.S.C. § 3553(a), and the prior, more rigid standard for a downward departure is not applicable to a variance request. Before Booker, this Court analyzed claims of sentencing entrapment or manipulation under the rubric of "outrageous governmental conduct." United States v. Lacey, 86 F.3d 956, 963 (10th Cir.1996). This is a due process principle allowing a court to modify a sentence if, considering the totality of the circumstances, "the government's conduct is so shocking, outrageous and intolerable that it offends `the universal sense of justice.'" Id. at 964. While Lacey stopped short of recognizing sentencing factor manipulation as a separate defense, it held that outrageous governmental conduct may warrant a downward departure in an extreme 1019 case.[1]Id. at 963. When Lacey was decided, the sentencing guidelines were mandatory and outrageous governmental conduct was a basis for a downward departure. While Booker made application of the sentencing guidelines advisory rather mandatory, it did not impact pre-existing law concerning the interpretation of any sentencing guideline or expand the availability of departures under the sentencing guidelines. 543 U.S. at 264-65, 125 S.Ct. 738. Instead, Booker allows district courts to exercise discretion to vary from the guideline range if a variance would be appropriate under the § 3553(a) factors. The Eighth Circuit has recently addressed the difference between a departure for sentencing factor manipulation and a variance under the § 3553(a) factors. In drug cases, the Eighth Circuit authorizes district courts to depart downward if the government extends a criminal investigation for the sole purpose of increasing the drug quantities for which a defendant is responsible. United States v. Torres, 563 F.3d 731 (8th Cir.2009). Booker did not change prior Eighth Circuit law relating to departures for sentencing factor manipulation. See id. at 734-35. However, after Booker, a claim of sentencing factor manipulation may also be raised as a request for a variance based on § 3553(a)'s requirement that a district court consider the "nature and circumstances of the offense." Id. Although Booker provided another avenue for the defendant in Torres to raise a claim of sentencing factor manipulation, Booker did not alter the substantive law concerning the availability of a departure for such manipulation. We agree with the Eighth Circuit's holding in Torres and find that Booker did not alter the standard for a defendant to succeed on a claim of outrageous governmental conduct, but a defendant's claim of sentencing factor manipulation may also be considered as request for a variance from the applicable guideline range under the § 3553(a) factors. Lacey is still good law to the extent that it governs a request for a downward departure for outrageous governmental conduct. In this case, Defendant requested a variance rather than a departure, and there is no indication from the record that the district court applied the stricter standard for a departure to Defendant's request. Based on the evidence presented to the district court at the sentencing hearing, we find that the district court did not abuse its discretion by 1020 denying Defendant's request for a variance, because Defendant has not shown that his sentence was enhanced as a result of the government's conduct. At the sentencing hearing, Officer Mendez testified that he arranged the October 23, 2007 controlled buy and did not ask Defendant to bring a gun, but a .40 caliber handgun was found in Defendant's jacket pocket following his arrest. Officer Garcia testified that another officer reported that Defendant was carrying a concealed firearm at a controlled buy on August 31, 2007, and Defendant did not disclose this fact or attempt to sell the gun to undercover officers. The district court found this evidence to be credible and rejected Defendant's argument that government agents asked him to bring a firearm to a controlled buy for the specific purpose of enhancing his sentence.[2] Concerning Defendant's request for a variance based on his youth and lack of guidance, the district court considered the § 3553(a) factors and determined that a guideline sentence was appropriate. Although Defendant claims that he moved to the United States after his father was murdered and became caught up in a drug conspiracy due to his inexperience and youth, the government presented evidence contradicting Defendant's statements and the district court did not abuse its discretion in determining that application of the § 3553(a) factors did not support a downward variance in this case. Thus, the district court's decision to impose a sentence within the guideline range was reasonable. B. Challenges to District Court's Application of the Sentencing Guidelines Defendant also challenges the district court's imposition of a two level enhancement under USSG § 2D1.1 for possession of a firearm and a three level enhancement under USSG § 3B1.1 for Defendant's role in the offense. When reviewing the district court's application of the sentencing guidelines, this Court reviews the district court's findings of fact for clear error and legal conclusions de novo. United States v. Mozee, 405 F.3d 1082, 1088 (10th Cir.2005). We will not "disturb a factual finding unless it has no basis in the record ... [and] in reviewing the court's decision to apply an enhancement, we view the evidence and inferences therefrom in the light most favorable to the district court's determination." Id. Section 3B1.1 of the sentencing guidelines permits a district court to assess up to a four level enhancement based on a defendant's role in the offense. The sentencing guidelines provide that a defendant's total offense level should be increased by three levels if he or she "was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was 1021 otherwise extensive...." USSG § 3B1.1(b). An enhancement under this section requires the involvement of at least one "participant" other than the defendant, and a "participant" is defined as a "person who is criminally responsible for the commission of the offense." United States v. Gallant, 537 F.3d 1202, 1241 (10th Cir. 2008). The defendant must also exercise some degree of "decision-making authority or control over a subordinate." United States v. Pena-Hermosillo, 522 F.3d 1108, 1112 (10th Cir.2008); see also United States v. Gonzalez Edeza, 359 F.3d 1246, 1248 (10th Cir.2004) ("At bottom, `[a] supervisor is one who exercised some degree of control over others involved in the commission of the offense or ... [who was] responsible for organizing others for the purpose of carrying out the crime.'") (quoting United States v. Allemand, 34 F.3d 923, 931 (10th Cir.1994)). According to Defendant, the district court did not make specific findings supporting its conclusion that he was a manager or supervisor of the conspiracy. Defendant acknowledges that the district court made factual findings, but he characterizes these findings as "general." We disagree. The district court considered the evidence presented at the sentencing hearing and made factual findings explaining its decision to increase Defendant's total offense level by three levels under USSG § 3B1.1. The district court determined that the criminal organization to which Defendant belonged imported a substantial amount of heroin using a sophisticated delivery method, and described the organization as a "significant operation." It found that Defendant managed or supervised at least one other person, and he had the contacts and ability to arrange for the importation of heroin from Mexico. These factual findings are supported by the record and provide a sufficient basis to enhance Defendant's sentence for his role in the offense. Therefore, the district court did not err by imposing a three level enhancement under USSG § 3B1.1(b) for Defendant's role in the offense. Finally, Defendant claims that the district court erred by enhancing his sentence by two levels for possessing a firearm. Section 2D1.1(b)(1) of the sentencing guidelines provides for a two level enhancement "[i]f a dangerous weapon (including a firearm) was possessed" in connection with a drug trafficking offense. The government bears the initial burden to prove that a defendant possessed a firearm. United States v. Smith, 131 F.3d 1392, 1400 (10th Cir.1997). To satisfy its burden for application of a two level enhancement under USSG § 2D1.1(b)(1), the government must show a temporal proximity between a weapon, the drug trafficking activity, and a defendant. United States v. Zavala-Rodriguez, 379 F.3d 1182, 1185 (10th Cir.2004). If the government meets its burden, this enhancement should be applied unless a defendant can show that it is "clearly improbable" that the weapon was possessed in connection with a drug offense. United States v. Heckard, 238 F.3d 1222, 1233 (10th Cir.2001). Construing the evidence in a light most favorable to the district court's guideline application, the Court finds that the district court's decision to enhance Defendant's sentence for possessing a firearm in connection with a drug trafficking offense was reasonable. When Defendant was arrested following a controlled buy on October 23, 2007, government agents recovered a .40 caliber Smith & Wesson handgun from Defendant's jacket pocket. Contrary to Defendant's claims of sentencing manipulation or entrapment, there is no evidence in the record suggesting that Defendant brought the gun to the controlled buy at the request of government 1022 agents. The firearm was concealed during the controlled buy on October 23, 2007, and Defendant did not attempt to sell it or disclose its presence to anyone. This creates a clear temporal proximity between the firearm, the defendant, and the drug trafficking activity, and it is not clearly improbable that Defendant possessed the firearm in connection with a drug trafficking offense. III. CONCLUSION The sentence imposed by the district court is AFFIRMED in all respects. NOTES [] The Honorable Claire V. Eagan, United States District Judge for the Northern District of Oklahoma, sitting by designation. [1] Other federal circuit courts of appeal have adopted varying approaches to claims of sentencing manipulation as an objection to a sentence. The Sixth and D.C. Circuits categorically reject the doctrine of sentencing factor manipulation and do not consider such claims, while the Second, Third, Fourth, Fifth and Seventh Circuits have not expressly accepted or rejected a defense of sentencing factor manipulation. United States v. Guest, 564 F.3d 777 (6th Cir.2009); United States v. Tykarsky, 446 F.3d 458 (3d Cir.2006); United States v. Snow, 309 F.3d 294 (5th Cir.2002); United States v. Gomez, 103 F.3d 249 (2d Cir.1997); United States v. Walls, 70 F.3d 1323 (D.C.Cir.1995); United States v. Okey, 47 F.3d 238 (7th Cir.1995); United States v. Jones, 18 F.3d 1145 (4th Cir.1994). The Ninth Circuit permits district courts to depart downward if a defendant can establish "imperfect entrapment," which is not a complete defense to a criminal charge but may provide a basis for a downward departure at sentencing. United States v. Mejia, 559 F.3d 1113 (9th Cir.2009). The First and Eighth Circuits recognize the doctrine of sentencing manipulation as a basis for a downward departure in extraordinary cases when the government improperly engages in conduct to expand the scope of a crime. United States v. Fontes, 415 F.3d 174 (1st Cir.2005); United States v. Shephard, 4 F.3d 647 (8th Cir.1993). The Eleventh Circuit has adopted an approach similar to Lacey and considers whether the certain sentencing factors should be filtered out or rejected due to the government's outrageous conduct. United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007). [2] Special Agent Kraus testified that there was no conversation concerning the sale of a gun on October 23, 2007, and Defendant did not disclose the presence of the .40 caliber handgun or offer it for sale to undercover agents. Appellant's App. at 153. Police also found a.44 magnum handgun and a rifle at Defendant's home while executing a search warrant following his arrest. Although an undercover agent, identified as Agent Aguirre, did ask Defendant on more than one occasion if he could supply him a gun, it does not appear that Defendant ever sold undercover agents a gun and he was not charged with an offense under 18 U.S.C. § 924(c). The district court considered evidence suggesting that Agent Aguirre asked Defendant to bring a firearm to a controlled buy for the purpose of enhancing his sentence, and found that this evidence would have carried more weight if Defendant had been charged with a violation of § 924(c). Id. at 241. Thus, the district court's determination that Defendant possessed a firearm of his own free will, rather than due to coercive conduct of government agents, was reasonable.	{ "pile_set_name": "FreeLaw" }
257 S.W.3d 583 (2007) Guadalupe ALVARADO, Appellant, v. ST. MARY-ROGERS MEMORIAL HOSPITAL, INC., Appellee. No. CA 06-1061. Court of Appeals of Arkansas. May 23, 2007. 584 Ken Swindle, Rogers, AR, for appellant. Bassett Law Firm, LLP, by: Dale W. Brown, Fayetteville, AR, for appellee. JOSEPHINE LINKER HART, Judge. Guadalupe Alvarado appeals from an order of the Benton County Circuit Court dismissing with prejudice pursuant to Arkansas Rule of Civil Procedure 12(b)(6) 585 her complaint against appellee St. Mary-Rogers Memorial Hospital (St.Mary's). On appeal, Alvarado argues that the trial court erred in dismissing her complaint because she did state facts upon which relief may be granted and did allege a justiciable controversy. We affirm. Alvarado was injured in an automobile accident on October 4, 2005. The following day, she presented at St. Mary's for x-rays. The hospital charges for those x-rays were $312. Alvarado, an employee of Tyson Foods, had CIGNA health insurance. St. Mary's was a member of the Tyson Preferred Network and as such has a contractual agreement with CIGNA whereby it agrees to write off certain charges. Alvarado settled her case with the other driver's auto insurance company, State Farm Mutual Insurance, for $4,500. The hospital sought to be paid for the medical services it provided to Alvarado. State Farm issued a draft in the amount of $312 payable to St. Mary's. Alvarado asserted that she was entitled to $216.74, the amount of the discount that was negotiated between CIGNA and St. Mary's. While retaining possession of the draft, she demanded that St. Mary's endorse it over to her in exchange for a check written by her attorney in the amount of $95.26, which would have been the cost of Alvarado's treatment if CIGNA was paying for it. Employees of St. Mary's refused Alvarado's demand. Claiming entitlement to a sum equal to the discount which CIGNA would have been entitled to had they been responsible for the bill, Alvarado filed suit in Benton County Circuit Court, as she threatened to do, seeking declaratory judgment and monetary damages. She alleged that St. Mary's failed to properly assert a lien on the insurance proceeds, breached its contract with CIGNA to which she was a third-party beneficiary, and committed the tort of conversion. Alvarado subsequently amended her complaint to bring in State Farm as a defendant, but nonsuited after the trial court granted St. Mary's motion to dismiss in order to facilitate the filing of this appeal.[1] In dismissing Alvarado's complaint with prejudice, the trial judge found that "at all relevant times the plaintiff or her attorney has been in exclusive possession and control" of the $312 State Farm draft and St. Mary's did not exercise "actual or constructive dominion" over the draft "at any time." Accordingly, it found that Alvarado's complaint did not state facts upon which relief may be granted and the facts alleged did "not give rise to a present, justiciable controversy capable of adjudication." Further, it found that State Farm had issued two replacement checks which rendered Alvarado's claims moot. Finally, the trial court found that it is "undisputed" that St. Mary's filed or asserted a lien for the medical services rendered on October 5, 2005. On appeal, Alvarado argues that the trial court erred in dismissing her complaint because it stated facts upon which relief can be granted. First, she argues that the trial court's decision should be treated as 586 based on summary judgment under Rule 56(c) of the Arkansas Rules of Civil Procedure. She contends that "liberally" construing the pleadings, as required by Rule 8(f) of the Arkansas Rules of Civil Procedure, she asserted three causes of action: breach of contract, intentional interference with a business advantage, and conversion. She claims that the interference with a business advantage count was raised when she asserted in her complaint that St. Mary's "had no valid claim to the $316 due to the reduction" and the tort arose when it improperly asserted entitlement to her property the amount of the discount that CIGNA received from St. Mary's. Alvarado asserts that her entitlement to the discount arose from her status as a third-party beneficiary to the contract between CIGNA and St. Mary's. Alvarado argues that she asserted the tort of conversion when she alleged that St. Mary's refusal to endorse the draft deprived her of her right to be paid in cash the difference between the price of the services rendered and the price to CIGNA had it been responsible for paying for the services. Finally, Alvarado argues that the trial court erred in finding that there was not a justiciable controversy because, even though she eventually received the money she sought, the act of conversion was complete at the time the tort was committed. We find none of her arguments persuasive. We note first that the trial court proceeding was at all times treated as a hearing on St. Mary's motion to dismiss pursuant to Rule 12(b)(6). She never asked the trial court to consider St. Mary's motion as one for summary judgment. We therefore decline to consider it as a motion for summary judgment. It is well settled that this court will not consider arguments raised for the first time on appeal. See Ford Motor Co. v. Arkansas Motor Vehicle Comm'n 357 Ark. 125, 161 S.W.3d 788 (2004). In reviewing the trial court's decision on a motion to dismiss under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure, this court treats the facts alleged in the complaint as true and views them in a light most favorable to the party who filed the complaint. Perry v. Baptist Health, 358 Ark. 238, 189 S.W.3d 54 (2004). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. However, a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id. The court will look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id. Regarding the intentional interference with a business advantage count, we hold that Alvarado's complaint fails to plead sufficient facts to establish the elements of this tort. As Alvarado notes, the supreme court discussed the elements of this tort in Stewart Title Guaranty Company v. American Abstract & Title Company, 363 Ark. 530, 215 S.W.3d 596 (2005). It stated that to establish a claim of tortious interference with business expectancy, a plaintiff must prove: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Id. In addition to the above requirements, the supreme court also stated that, for an interference to be actionable, it must be improper. Id. (citing 587 Hunt v. Riley, 322 Ark. 453, 909 S.W.2d 329 (1995)). The allegations in Alvarado's complaint, taken as true, fail to allege improper interference. The only wrongful conduct on the part of St. Mary's that Alvarado alleged was that the hospital did not follow the proper statutory procedures to assert a lien against the insurance settlement and it refused to cash an insurance company draft, give Alvarado's attorney the proceeds, and accept that attorney's checks for the amount that she claimed that she was entitled to pay the hospital for the medical services she received. Regarding the former, the failure to follow the procedures set out in our lien statute simply results in St. Mary's not being able to assert a lien. See Ark. Code Ann. § 18-46-106 (Repl.2003). It does not extinguish the debt or St. Mary's right to collect for the medical services it provided. As far as refusing to cash the insurance draft, we hold that St. Mary's had no duty to do so-it is a hospital, not a bank. Furthermore, in both cases, the alleged improper conduct was not misfeasance, but mere nonfeasance. Where intentional torts are concerned, subject to limited exceptions not germane to this appeal, nonfeasance is not actionable. See Farm Bureau Ins. Co. v. Running M. Farms, Inc., 366 Ark. 480, 237 S.W.3d 32 (2006). Accordingly, the trial court did not err in finding that Alvarado failed to assert a claim arising under this theory. Alvarado also failed to allege sufficient facts to make out the elements of her conversion claim. In Grayson v. Bank of Little Rock, 334 Ark. 180, 188, 971 S.W.2d 788, 792 (1998), the supreme court set out the elements of conversion as follows: Conversion is the exercise of dominion over property in violation of the rights of the owner or person entitled to possession. Conversion can only result from conduct intended to affect property. The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiff's rights. Here, Alvarado conceded that she maintained possession of the insurance draft but asserted that St. Mary's exercised dominion over the funds that she was claiming because it failed to cash the instrument as she demanded. We hold that the trial court did not err in finding that Alvarado's factual allegations that St. Mary's refusal to cash the draft equated to dominion over the funds. Indeed, that assertion is belied by the fact that State Farm subsequently issued two replacement drafts that gave Alvarado what she wanted. Finally, although Alvarado alleged a breach-of-contract claim in her pleadings, her twenty-three page argument does nothing more than mention that such a claim was made in her complaint. We therefore hold that this argument has been abandoned on appeal. Affirmed. GLADWIN and ROBBINS, JJ., agree. NOTES [1] While this appeal was pending, Alvarado became concerned about whether her dismissal of the cause of action against State Farm deprived this court of jurisdiction because the trial court's order did not dispose of all the claims that she had asserted. We note, however, that in Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996), the supreme court held that dismissing a party without prejudice did not adversely affect the finality of an order for the purposes of appeal. The Driggers court reasoned that nothing requires a plaintiff to sue the prospective defendants simultaneously, and if the plaintiff nonsuits, he is in no different position than he would be if he had filed a separate cause of action. Id.	{ "pile_set_name": "FreeLaw" }
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MARK DOZIER, ) ) Appellant, ) ) v. ) Case No. 2D18-723 ) CIT BANK, N.A., ) ) Appellee. ) ___________________________________) Opinion filed December 5, 2018. Appeal from the Circuit Court for Pasco County; Declan P. Mansfield, Judge. Mark Dozier, Holiday, pro se Appellant. Shannon T. Sinai of Albertelli Law, Tampa, for Appellee. PER CURIAM. Affirmed. SILBERMAN, MORRIS, and BADALAMENTI, JJ., Concur.	{ "pile_set_name": "FreeLaw" }
114 F.3d 1198 97 CJ C.A.R. 1041 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Michael J. FRISCHENMEYER, Plaintiff-Appellant,v.Frank GONZALES, McKinely County Sheriff; Danny Ross, PoliceChief, Gallup, NM, Defendants-Appellees. No. 96-2088. United States Court of Appeals, Tenth Circuit. June 17, 1997. Before ANDERSON, HENRY, and BRISCOE, Circuit Judges. 1 ORDER AND JUDGMENT* 2 After examining the briefs and appellate record, this panel has unanimously determined that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. BACKGROUND 3 Plaintiff Michael J. Frischenmeyer, a prisoner incarcerated at the McKinley County, New Mexico, jail, alleges in this pro se action that the defendant prison officials violated his constitutional rights under 42 U.S.C. § 1983 by: (1) placing him in administrative segregation; (2) failing to provide him with adequate medical attention; (3) failing to provide adequate fire or emergency escape routes; (4) withholding his mail; (5) denying him access to the courts and to legal reference materials; and (6) denying him fresh air and exercise. 4 In the course of this action, Mr. Frischenmeyer filed a motion for a temporary restraining order ("TRO motion"), see Rec. vol. I, doc. 7, to prevent defendants from transferring him to the State of Texas to complete service on a sentence that is presently on appeal. He also filed a motion for an emergency order ("emergency motion"), see Rec. vol. I, doc. 8, which sought (1) the provision of medical care; (2) the allowance of access to the media; and (3) the provision of access to other inmates seeking legal assistance. The district court dismissed these two motions sua sponte. See Rec. vol. I, doc. 9. The denial of these motions are the subject of this appeal.1 DISCUSSION 5 The district court's order was a ruling disposing of motions, and is not final as to all issues and parties in this action. No judgment is final unless it adjudicates all claims among all parties. See Fed.R.Civ.P. 54(b). There is no question that the district court did not issue a final order under § 1291. We can address the underlying merits of an action only if the order is final under 28 U.S.C. § 1291, or if the action falls among a class of statutory exceptions provided in § 1292(a). 6 We turn next to determine whether a statutory exception provided in § 1292(a) applies. Section 1292(a)(1) gives this court "jurisdiction of appeals from[ ] interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions...." 28 U.S.C. § 1292(a)(1). The Supreme Court has determined that § 1292(a)(1) is a limited exception to the final-judgment rule, and that "unless a litigant can show that an interlocutory order of the district court might have a serious, perhaps irreparable, consequence, and that the order can be effectually challenged only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal." Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981) (internal quotations omitted); Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th Cir.1997) (quoting Carson ). 7 If the district court's order had the (1) the practical effect of refusing or granting an injunction; (2) threatened a serious, perhaps irreparable consequence; and (3) can be "effectually challenged" only by immediate appeal, we could review it for an abuse of discretion under the "collateral order doctrine." Utah v. Kennecott Corp., 14 F.3d 1489, 1496 (10th Cir.1994) (citing Carson, 450 U.S. at 84); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). 8 The district court's denial of Mr. Frischenmeyer's motion for a temporary restraining order does not fall within the scope of § 1292(a)(1). See Office of Personnel Mgmt. v. American Fed'n of Gov't Employees, 473 U.S. 1301, 1303-04 (1985) (stating that "denials of temporary restraining orders are ordinarily not appealable"). The district court's order satisfies none of the Carson prongs and, as found by the district court, "[n]o allegation is made that such a transfer is imminent or even planned, nor does the motion describe a constitutionally protected interest that would be violated by the re-transfer." Rec. vol. I, doc. 9 at 4. See also 15A Charles A. Wright, et al., Federal Practice & Procedure § 3914.3, at 522 (2d ed. 1995) ("In most circumstances appeal [from the disposition of a TRO] is inappropriate because it is very difficult to secure meaningful appellate review within the brief life of a[TRO], the harm done by grant or denial of a[TRO] often can be reduced or eliminated at the preliminary injunction stage, and the briefness of the surrounding procedures will provide little basis for informed appellate decision."). 9 Mr. Frischenmeyer's appeal from the district court's denial of his emergency motion also fails, but for different reasons. The order analogized Mr. Frischenmeyer's motion to a motion for a preliminary injunction, and effectively denied his request for equitable relief. See Rec. vol. I, doc. 9 at 1-2. " '[I]n the case of orders that do not, as a technical matter, grant or refuse an injunction, but are injunctive in practical effect, or in practical effect deny an injunction, appealability depends upon the threat of [imminent] serious, perhaps irrevocable harm.' " Hutchinson, 105 F.3d at 569 (quoting 9 James W. Moore, et al., Moore's Federal Practice p 110.20, at 227 (2d ed.1996)) (alterations in original) (internal quotations omitted). The district court's order is similar to that in Hutchinson because it was injunctive in practical effect. 10 Having determined that the district court's order had the practical effect of denying injunctive relief with respect to Mr. Frischenmeyer's emergency motion, we determine whether he has made an adequate showing of harm as required by Carson. See Hutchinson, 105 F.3d at 570. Mr. Frischenmeyer has made no allegations "that irreparable consequences are threatened," nor is it likely that he could in good faith.2 See id. We shall not supply "arguments or theories" for Mr. Frischenmeyer in the "absence of any discussion of these issues." Drake, 927 F.2d at 1159. 11 Finally, Mr. Frischenmeyer has made no effort to show that the district court's order could only be "effectually challenged" by immediate appeal. See Hutchinson, 105 F.3d at 571. Moreover, "[i]t is clear that the district court's order can be legally challenged after the case is final even if an interlocutory appeal were proper here," unless a statute or rule provides otherwise. Id. (citing 9 Moore et al., supra p 110.18, at 194-95); see 19 Moore, et al., supra, p 203.32[b] at 203-103 to 203-104 (3d ed.1997). "Upon an appeal from the final decree, every interlocutory order affecting the rights of the parties is subject to review in the appellate court." 11A Wright, et al., supra § 2962, at 433. Mr. Frischenmeyer will likely be able to seek review of the claims alleged in his emergency motion when a final judgment is entered in this action. 12 Accordingly, we dismiss Mr. Frischenmeyer's appeal of the district court's denial of his motions for a temporary restraining order and for an emergency order for lack of jurisdiction. 13 The mandate shall issue forthwith. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 1 We note that this court ordered Mr. Frischenmeyer to discuss the relevant jurisdictional issues, i.e., "[w]hether the district court's ... [o]rder is a final appealable decision under 28 U.S.C. § 1291 or under any recognized exception to the final judgment rule?" See Attachment to Aplt's Br. (April 29, 1996 Notice of Jurisdictional Defect). Mr. Frischenmeyer failed to address the jurisdictional issue. We must always determine jurisdiction, but here we must do so without appellant's help. "Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for [Mr. Frischenmeyer] in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989)) 2 In support of his medical attention claim, Mr. Frischenmeyer offers conclusory allegations, which only belie his claim. He alleges that he has not received adequate medical care, ostensibly as a result of his refusal to wear ankle cuffs during transport to the medical clinic. See Rec. vol. I, doc. 8 at 1-2. The record further indicates that Mr. Frischenmeyer visited the clinic a week earlier without incident and received adequate care	{ "pile_set_name": "FreeLaw" }
NO. 07-10-0258-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A DECEMBER 17, 2010 ______________________________ MANUEL ORTIZ MALDONADO, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY; NO. 18,800-A; HONORABLE DAN SCHAAP, JUDGE[1] _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. OPINION This is an appeal from an order denying Manuel Ortiz Maldonado’s contest of a withdrawal notification issued pursuant to section 501.014(e) of the Texas Government Code. Finding the trial court erred in not correcting the withdrawal notification at issue, we reverse and render. Background On June 13, 2007, Appellant, Manuel Ortiz Maldonado, was convicted of indecency with a child.[2] Appellant's punishment was assessed at five years confinement and a fine of $1,500. The summary portion of the judgment entered by the trial court reflects "Costs: $____," while the narrative portion of the judgment orders that "the State of Texas do have and recover of [Appellant] all court costs in this prosecution expended for which let execution issue." The dollar amount and statutory basis of the court costs was not otherwise specified in the written judgment. Appellant did not seek a direct review of that judgment. On May 4, 2010, the Randall County District Clerk prepared a Bill of Costs reflecting an amount due of $2,241.50, which sum included the $1,500 fine, $400 in court-appointed attorney's fees, and $341.50 in miscellaneous court costs. Almost three years after the judgment was entered, using the original underlying criminal cause number, the trial court signed a document entitled Order to Withdraw Funds[3] directing the Texas Department of Criminal Justice to withdraw the sum of $2,241.50 from Appellant's "Inmate Trust Account."[4] On June 24, 2010, Appellant filed a motion contesting the withdrawal notification, contending that his "due process rights" were being violated by this collection process. On or before June 28, 2010, by handwritten notation upon the Clerk's notification to the trial court of the filing of Appellant's motion, the trial court denied the request sua sponte. Appellant now appeals that denial. Appealable Order In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate account pursuant to § 501.014(e) is a civil matter[5] akin to a garnishment action or an action to obtain a turnover order. Harrell, 286 S.W.3d at 317-19. Discussing the due process accorded to the appellant, the Court balanced the three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and found that Harrell had "already received some measure of due process." Harrell, 286 S.W.3d at 320. In determining whether Harrell was accorded constitutional due process, the Court concluded that because Harrell had received notice of the withdrawal (a copy of the withdrawal notification) and an opportunity to contest the dollar amount and statutory basis of the withdrawal (a motion to rescind or modify the withdrawal notification),[6] he received all that due process required. Id. at 321. The Court added that neither notice nor an opportunity to be heard need occur before the issuance of a withdrawal notification. Id. This Court has interpreted Harrell as saying that due process requires that an inmate have an opportunity to contest the dollar amount and statutory basis of the withdrawal by way of a motion to modify, correct, or rescind the withdrawal notification. Snelson v. State, No. 07-10-0259-CV, 2010 Tex.App. LEXIS 9016, at 5-6 (Tex.App.--Amarillo Nov. 10, 2010, no pet. h.); Bryant v. State, No. 07-10-0358-CV, 2010 Tex.App. LEXIS 8059, at 4-5 (Tex.App.--Amarillo Oct. 5, 2010, no pet.); Williams v. State, 322 S.W.3d 301 (Tex.App.--Amarillo 2010, no pet.). The trial court's disposition of such a motion creates an appealable order. See Ramirez v. State, 318 S.W.3d 906, 908 (Tex.App.--Waco 2010, no pet.) (holding that "only when [the withdrawal notification is] properly challenged and denied relief is there an order that is final from which the inmate can appeal"). Standard of Review We review a trial court's decision whether to deny a motion contesting a withdrawal notification under an abuse of discretion standard. See Canty v. State, No. 12-08-00257-CV, 2009 Tex.App. LEXIS 2715, at 3-4, (Tex.App.-Tyler April 15, 2009, no pet.) (holding that a trial court's decision to hold a civil expunction proceeding is subject to review under an abuse of discretion standard). A trial court abuses its discretion when it acts "without reference to any guiding rules and principles." Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Howell v. State, 175 S.W.3d 786, 792 (Tex.Crim.App. 2005); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Furthermore, a trial court abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). Court Costs A certified bill of costs imposes an obligation upon a criminal defendant to pay court costs, irrespective of whether or not that bill is incorporated by reference into the written judgment. See generally Tex. Code Crim. Proc. Ann. arts. 103.001 and 103.003 (West 2006); See also Tex. Gov't Code Ann., §§ 102.001 - 103.033. (West 2006 and Supp. 2010). Where court costs are imposed as a matter of legislative directive, they do not need to be included in the oral pronouncement of sentence or the written judgment in order to be imposed upon a convicted defendant. See Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App. 2009) (holding that because legislatively mandated court costs are not punitive, they did not have to be included in the oral pronouncement of sentence as a precondition to their inclusion in the trial court's written judgment); Smith v. State, No. 07-09- 0009-CR, 2010 Tex.App. LEXIS 3846, at 21 (Tex.App.--Amarillo May 20, 2010, pet. ref'd) (holding that a precise dollar amount of court costs did not have to be specified in the oral pronouncement of sentence or the written judgment as a precondition to their inclusion in the clerk's bill of costs). Court-Appointed Attorney's Fees Pursuant to article 26.05(g) of the Texas Code of Criminal Procedure, if a trial court determines that a defendant has financial resources that enable him to repay, in whole or in part, the costs of legal services provided by a court-appointed attorney, the court has authority to order a convicted defendant to pay "as court costs the amount that it finds the defendant is able to pay." See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010). Without record evidence demonstrating a defendant's financial resources to offset the costs of legal services, a trial court errs if it orders reimbursement of court-appointed attorney's fees. Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010). Unless a material change in a criminal defendant's financial resources is established by competent legal evidence, once that defendant has been found to be indigent, he is presumed to remain indigent for the remainder of the proceedings. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010); Mayer, 309 S.W.3d at 557. Analysis As noted, the Bill of Costs in the record includes $400 in court-appointed attorney's fees, but the record does not contain a determination or finding that Appellant had any financial resources or was "able to pay" any amount of attorney's fees. What the record does reflect is that, at the time the original judgment of conviction was entered, Appellant was indigent and qualified for court-appointed counsel. Accordingly, we must presume that on June 10, 2010, when the trial court signed the withdrawal notification, Appellant's financial status had not changed. Just as a trial court errs by ordering reimbursement of court-appointed attorney's fees without record evidence demonstrating the defendant has an ability to repay the fees, see Mayer, 309 S.W.3d at 557, we find the trial court here abused its discretion by summarily denying Appellant's challenge to the withdrawal notification authorizing withdrawal of funds from his inmate account to reimburse attorney's fees in the absence of a judicial finding required by article 26.05(g). Conclusion Accordingly, we reverse the trial court's order denying Appellant's motion to contest and we render judgment granting the motion to contest, thereby directing the entry of an Amended Withdrawal Notification Pursuant to Section 501.014(e), deleting the attorney's fees of $400. We further order that a copy of the Amended Withdrawal Notification be delivered to the Institutional Division of the Texas Department of Criminal Justice. Patrick A. Pirtle Justice ----------------------- [1]Hon. Abe Lopez, Retired Judge sitting by assignment in the 47th District Court of Randall County, Texas. See Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005). [2]See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2010). An offense under subsection (a)(1) of § 21.11 is a felony of the second degree, punishable by imprisonment for any term of not more than 20 years or less than 2 years, and by a fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.33 (West Supp. 2010). [3]This document is not an "order" in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Tex. Gov't Code Ann. § 501.014(e) (West Supp. 2010), describes the process as a "notification by a court" directing prison officials to withdraw sums from an inmate's account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court." See id. at § 501.014(e)(1)-(6). See also Harrell v. State, 286 S.W.3d 315, 316, n.1 (Tex. 2009). This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008). Nisi means "unless," so a judgment nisi is valid unless a party takes action causing it to be withdrawn. Id. Similarly, a withdrawal notification issued pursuant to § 501.014(e), triggers a withdrawal from an inmate's account, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification" to avoid confusion with an underlying court order or judgment ordering the payment of a sum falling within at least one of the six priority categories listed in the statute. [4]Several courts, including this Court, have referred to these inmate accounts as "trust" accounts. The term "trust" has been removed from their statutory references. Act of May 11, 1989, 71st Leg., R.S., ch. 212, § 2.01 1989 Tex. Gen. Laws 918, 958, amended by, Act of May 17, 1999, 76th Leg., R.S., ch. 326, §1, 1999 Tex. Gen. Laws 1235, 1236 (current version at Tex. Gov't Code Ann. § 501.014 (West Supp. 2010)). Accordingly, they are simply inmate accounts. [5]See Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App. 2008) (holding that orders directing withdrawal of funds from inmate trust accounts are not a criminal matter). [6]The trial court denied Harrell's Motion to Rescind. See Harrell v. State, Nos. 07-06-0469-CR, 07- 06-0470-CR, 2007 Tex. App. LEXIS 6416, at *2 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008).	{ "pile_set_name": "FreeLaw" }
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE JOHNNY D., THERESA H., Appellants, v. DEPARTMENT OF CHILD SAFETY, D.D., Appellees. No. 1 CA-JV 18-0047 FILED 6-21-2018 Appeal from the Superior Court in Navajo County No. S0900JD201400019 The Honorable Michala M. Ruechel, Judge AFFIRMED COUNSEL E.M. Hale Law, Lakeside By Elizabeth M. Hale Counsel for Appellant, Johnny D. Criss Candelaria Law Office P.C., Concho By Criss E. Candelaria Counsel for Appellant, Theresa H. Arizona Attorney General’s Office, Mesa By Ashlee N. Hoffmann Counsel for Appellee, Department of Child Safety JOHNNY D., THERESA H. v. DCS, D.D. Decision of the Court MEMORANDUM DECISION Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined. B R O W N, Judge: ¶1 Johnny D. (“Father”) and Theresa H. (“Mother”) appeal the superior court’s order terminating their parental rights to their daughter, D.D (“the child”). For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 At the time of the child’s birth in 2016, her older brother (“Brother”) was in the custody of the Department of Child Safety (“DCS”) as part of these dependency proceedings. DCS took temporary custody of the child within days of her birth. DCS then filed a petition alleging the child was dependent as to both parents because the parents were “neglecting the child due to mental illness” and unable to provide her with “appropriate and adequate supervision.” The superior court granted the petition, and ordered DCS to make reasonable efforts to achieve the case plan of family reunification. ¶3 In February 2017, DCS moved to terminate the parents’ parental rights to Brother based on Arizona Revised Statutes (“A.R.S.”) sections 8-533(B)(3) (mental illness or mental deficiency) and § 8- 533(B)(8)(c) (fifteen months’ time in care). Following the May 2017 severance hearing, the superior court terminated the parents’ parental rights to Brother on both grounds. ¶4 Several weeks later, DCS filed a motion for termination of the parents’ parental rights to the child pursuant to A.R.S. § 8-533(B)(3) (mental illness or mental deficiency) and § 8-533(B)(10) (prior termination of parental rights for the same cause within the last two years). After a two- day severance hearing, the superior court granted DCS’s motion on each ground and determined termination was in the child’s best interests. Mother and Father have timely appealed. 2 JOHNNY D., THERESA H. v. DCS, D.D. Decision of the Court DISCUSSION ¶5 To terminate parental rights, the superior court must find by clear and convincing evidence the existence of at least one of the statutory grounds for termination enumerated in A.R.S. § 8-533(B), and must also find by a preponderance of the evidence that termination is in the child’s best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). “[W]e view the evidence and reasonable inferences . . . in the light most favorable to sustaining the court’s decision.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). We will affirm the ruling when the termination order is supported by reasonable evidence. Id. ¶6 Parental rights may be terminated if “the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.” A.R.S. § 8-533(B)(10). “Same cause,” as interpreted under the statute refers not to the same statutory ground that supported the prior termination, but “refer[s] to the factual ‘cause’ that led to the [previous] termination of Appellant’s parental rights.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 48, ¶ 11 (App. 2004). ¶7 It is undisputed that the parents’ parental rights to Brother were terminated in 2017, which was within two years of the filing date for the petition to terminate parental rights to the child. See Tanya K. v. Dep’t of Child Safety, P.K., 240 Ariz. 154, 156, ¶ 6 (App. 2016) (We “measure the ‘within the preceding two years’ requirement from the date the court terminated the parent’s rights to the first child to the date an interested party petitions to terminate the parent’s rights to the second child.”). Thus, the only issue here is whether reasonable evidence supports the superior court’s finding that both terminations were the result of the same factual cause. ¶8 One of the primary factual causes underlying the prior termination was the parents’ mental disorders, which resulted in their inability to discharge parental responsibilities and were likely to continue for an indeterminate period. The superior court found that Mother was diagnosed with depressive disorder, anxiety disorder, and learning disorder. The court also found that Mother continues to need constant re-direction during supervised visitation as regards daily, basic parenting tasks 3 JOHNNY D., THERESA H. v. DCS, D.D. Decision of the Court and has not been able to grasp developmental expectations for the child or what is required of her in order to provide [child] with effective parental care and supervision. Unsupervised visitation between Mother and child needed to be stopped in November, 2016 due to the fact the child was at risk while in Mother’s care without supervision. It is unlikely Mother will be able to demonstrate minimally adequate parenting skills in the foreseeable future. ¶9 The court found that Father was diagnosed with obsessive- compulsive disorder, attention deficit hyperactivity disorder, paranoid schizophrenia, manic depression, and bipolar disorder with psychotic features. The court also found Father continues to need constant re-direction during supervised visitation as regards daily, basic parenting tasks and has not been able to grasp developmental expectations for the child or what is required of him in order to provide the child with effective parental care and supervision. At times during observed visitation, Father presents as paranoid and/or responding to internal stimuli. On or about November, 2016, unsupervised visitation between the Father and child needed to be stopped due to Father placing the child in jeopardy of imminent physical harm and due to Father being significantly deficient in providing for the child’s basic day to day needs. ¶10 Regarding the current termination proceeding, the superior court found the prior termination was for the same factual cause—the parents were “unable to discharge parental responsibilities because of mental illness or mental deficiency and there were reasonable grounds to believe that the condition[s] would continue for a prolonged indeterminate period.” The court repeated the findings quoted above and added additional details regarding the parent’s mental challenges. Evidence was presented indicating that Mother was diagnosed with substance use disorders (alcohol, amphetamine, methamphetamine, and opioid use), severe, in either remission or sustained remission; depressive disorder; a personality disorder, unspecified, compulsive, and histrionic traits; generalized anxiety disorder; and specific learning disorder. Father was diagnosed with substance use disorders (alcohol, amphetamine, and methamphetamine), severe, in either remission or sustained remission; academic or educational problems; paranoid schizophrenia; bipolar, severe with psychotic features; dependent traits; obsessive-compulsive disorder, 4 JOHNNY D., THERESA H. v. DCS, D.D. Decision of the Court generalized anxiety disorder; and attention deficit hyperactive disorder. Further, psychological reports and expert testimony were presented outlining in detail the parents’ mental health and parenting challenges. ¶11 Although the parents generally challenge the sufficiency of the evidence regarding the mental conditions and their inability to parent because of mental conditions, they do not challenge the superior court’s finding that their parental rights were previously terminated based on the same factual cause that exists in this case. Moreover, we do not reweigh evidence on appeal. See Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 16 (App. 2016). Rather, we defer to the court’s findings because it “is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). On this record, reasonable evidence supports termination under A.R.S. § 8-533(B)(10).1 ¶12 Father contends DCS failed to make diligent efforts to provide appropriate reunification services. See Mary Lou C., 207 Ariz. at 49, ¶ 15 (concluding that before termination pursuant to A.R.S. § 8-533(B)(10), there must be reasonable efforts to provide appropriate reunification services unless it would be futile). The State counters that Father waived this argument by failing to raise it in the superior court proceedings. Father’s briefing does not direct us to any portion of the record in which he challenged the adequacy of the services DCS provided. See ARCAP 13(a)(7)(B) (appellate briefs must contain “references to the record on appeal where the particular issue was raised and ruled on”). Moreover, numerous minute entries, orders, and severance hearing transcripts confirm the superior court’s finding that the parents never challenged the adequacy of services provided or offered by DCS, a finding Father does not address on appeal. He has therefore waived this argument. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶ 18 (App. 2014) (explaining that if a parent believes reunification services are inadequate, it is incumbent on the parent to “promptly bring those concerns to the attention of the juvenile court, thereby giving that court a reasonable opportunity to address the matter and ensure that [DCS] was in compliance with its 1 Because we conclude that reasonable evidence supports the superior court’s order based on A.R.S. § 8-533(B)(10), we need not address the other ground for termination. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002). 5 JOHNNY D., THERESA H. v. DCS, D.D. Decision of the Court obligation to provide appropriate reunification services as ordered by that court”). ¶13 Father also argues that severance is not in the child’s best interests because Father and the child share a bond. Termination is in the child’s best interests if the child will “derive an affirmative benefit from termination or incur a detriment by continuing in the relationship.” Oscar O., 209 Ariz. at 334, ¶ 6. “In making the determination, the juvenile court may consider evidence that the child is adoptable or that an existing placement is meeting the needs of the child.” Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011). ¶14 Here, the superior court explained that the child has been placed with a licensed foster home since birth. The court found that the current placement (where Brother also resides) is providing the child “with a loving and nurturing home environment and . . . she has been thriving in their care.” The court also found that the “[p]lacement is willing to proceed to adoption, which will provide [the child] with the added benefit of stability and permanency.” The record supports these findings. Thus, the court did not err in finding termination of Father’s parental rights is in the child’s best interests. CONCLUSION ¶15 For the foregoing reasons, we affirm the superior court’s termination of Father and Mother’s parental rights. AMY M. WOOD • Clerk of the Court FILED: AA 6	{ "pile_set_name": "FreeLaw" }
185 Kan. 620 (1959) 347 P.2d 369 THE BOARD OF EDUCATION OF THE CITY OF HERINGTON OF THE STATE OF KANSAS, Appellee, v. BERT L. THOMPSON, JR., FRANCES K. THOMPSON, HELEN THOMPSON SANDERSON, et al., Appellants. No. 41,479 Supreme Court of Kansas. Opinion filed December 12, 1959. Charles W. Bradshaw, of Abilene, argued the cause and Horace A. Santry, of Salina, was with him on the briefs for the appellants. Howard W. Harper, of Junction City, argued the cause, and Lee Hornbaker, William D. Clement and Richard F. Waters, all of Junction City, were with him on the briefs for the appellee. The opinion of the court was delivered by JACKSON, J.: The Board of Education filed suit in the district court to quiet title to real estate against the appellants as defendants. After filing a motion to strike and a motion to make the petition 621 more definite and the overruling of said motions by the trial court, defendants filed a demurrer to plaintiff's petition upon the grounds: 1. That several causes of action were improperly joined in said petition. 2. That the petition did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer and gave defendants time to answer. Instead, defendants appealed the order of the court overruling the demurrer to this court. It may be said that defendants do not argue in their brief the above motions or that there is any merit in the first ground specified in the above demurrer. The sole question now before the court is whether the petition stated a cause of action. The Board of Education in its petition alleged that it was the owner of the described real estate in Dickinson county in fee simple and was in possession thereof; that it had been in open and adverse possession of the real estate for more than fifteen years under and by virtue of a deed dated December 11, 1905, from Bert L. Thompson and Edith M. Thompson, then husband and wife. A copy of the deed was attached to the petition as an exhibit, and it is shown that the granting clause thereof reads in part as follows: "All of Block Number Ten (10) in Thompson's Addition to the City of Herington, to be occupied and used by said party of the second part its successors and assigns, for public schools as provided by the laws of the State of Kansas now in force or hereafter to be enacted, and for no other purpose." The petition of the Board of Education contains the following concluding paragraph preceding the prayer: "The above named defendants, and each of them, claim some title, estate or interest in or lien upon the real estate above described, adverse to the plaintiff, the exact nature of which claim is unknown to the plaintiff, but none of the said defendants have any title, estate or interest in the said real estate, or lien thereon, and said claims are void and wholly inferior and junior to the title and right of possession of the plaintiff to said real estate and constitute a cloud upon plaintiff's title." Among the opening paragraphs of the brief of the appellants in this court, we find the following: "The attention of the court is especially invited to the fact that the only parties to this suit are the grantee and the heirs of the grantor of the deed to be construed, and that the grantee seeks to quiet title for all purposes against its grantor." The very evident trouble with the above statement at the very outset is that these facts do not appear on the face of the petition. While these demurring defendants are named in the petition, neither 622 their identity nor any right or claim of title belonging to them is disclosed in the petition. Instead, the petition in effect asks that defendants answer and set up any claim of title which they may have to the real estate in question. One of the oldest and best settled rules of pleading is that a demurrer will reach only facts which appear in the pleading demurred to. If certain facts are necessary for the court to consider in passing upon a question of law and are not contained in the petition, a defendant must answer and allege the pertinent and necessary facts. This rule was better understood perhaps, or at least was fraught with more danger to the party demurring before the enactment of the provisions of the civil code allowing defendant to plead over after the overruling of a demurrer to the petition. Yet, even in modern practice, ill-advised demurrers waste time of the parties and the courts, and increase the cost of litigation. One of the first cases in which this court discussed the rule that a demurrer reached only the facts appearing on the face of the petition appears to have been Mayberry v. Kelley, 1 Kan. 116. The same principle has been reiterated many times since the Mayberry case. A few of the later cases may be mentioned: Winfield Town Co. v. Maris, 11 Kan. 128; Northrup v. Willis, 65 Kan. 769, 70 Pac. 879; Manufacturing Co. v. Keckley, 77 Kan. 797, 90 Pac. 781; Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796; Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P.2d 571; Lee v. Beuttel, 170 Kan. 54, 223 P.2d 692; Kendall v. Elliot, 177 Kan. 630, 281 P.2d 1088; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172; Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227; Snedeger v. Schrader, 183 Kan. 725, 332 P.2d 586. From the outline of the petition in this case it would seem almost too obvious for argument that a cause of action to quiet title as to plaintiff's interest in the real property is stated (Cessna v. Carroll, 178 Kan. 650, 654, 290 P.2d 803; Seaton v. Escher, 86 Kan. 679, 121 Pac. 907). While the question is not really here, we might point out in passing that even if defendants were able to raise the question of plaintiff's title under the granting clause of the deed, as set out supra, a demurrer would be the wrong method of raising the question. Defendants claim only that the language of the deed places some sort of a limitation upon plaintiff's title. It is conceded that plaintiff is entitled to have its title quieted to the property as long as it is used for school purposes. In Coolbaugh, Trustee, v. Gage, 182 Kan. 145, 319 P.2d 146 the opinion reads in part: *623 "In connection with all questions involved it is to be noted, and must be kept in mind, that under all our decisions the fact a petition seeks to recover more or different relief than that to which the plaintiff is entitled does not make it subject to demurrer if it otherwise states a cause of action (citing authorities)." (page 149.) A demurrer is an efficient pleading tool, where a petition is fatally defective in stating any cause of action or where all the facts are stated in the petition, and the question of whether a cause of action is alleged depends upon a dispute of law. The case at bar is not within the above category, and it is evident that the trial court did not err in overruling the demurrer to the petition herein. The order of the district court should be affirmed. It is so ordered.	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF TEXAS 444444444444 NO . 10-0928 444444444444 RAUL ERNESTO LOAISIGA, M.D., AND RAUL ERNESTO LOAISIGA, M.D., P.A., PETITIONERS, v. GUADALUPE CERDA, INDIVIDUALLY AND AS NEXT FRIEND OF MARISSA CERDA, A MINOR, AND CINDY VELEZ, RESPONDENTS 4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444 Argued February 29, 2012 JUSTICE JOHNSON delivered the opinion of the Court in which CHIEF JUSTICE JEFFERSON , JUSTICE WAINWRIGHT , JUSTICE GREEN , and JUSTICE GUZMAN joined, and in Parts I through V.A. and VI.A. of which JUSTICE WILLETT joined. JUSTICE HECHT filed a concurring and dissenting opinion, in which JUSTICE MEDINA joined. JUSTICE WILLETT filed a concurring and dissenting opinion. JUSTICE LEHRMANN filed a concurring and dissenting opinion. The Texas Medical Liability Act (TMLA) requires plaintiffs asserting health care liability claims (HCLCs) to timely serve each defendant with an expert report meeting certain requirements. In this case we consider whether claims that a doctor assaulted patients by exceeding the proper scope of physical examinations are subject to the TMLA’s expert report requirements. Two female patients sued a medical doctor, the professional association bearing his name, and a clinic, alleging the doctor assaulted the patients by groping their breasts while examining them for sinus and flu symptoms. Although they maintained that the claims were not HCLCs, the patients served the doctor and professional association with reports from a physician who, based only on the assumption that allegations in the plaintiffs’ pleadings were true, opined that the defendant doctor’s alleged actions did not fall within any appropriate standard of care. The defendants argued that the claims were HCLCs and moved for dismissal of the suit on the basis that the reports were deficient. The trial court denied the motions. The court of appeals held that the claims were not HCLCs, expert reports were not required, and affirmed the trial court’s order without considering the reports’ adequacy. We hold that the TMLA creates a rebuttable presumption that a patient’s claims against a physician or health care provider based on facts implicating the defendant’s conduct during the patient’s care, treatment, or confinement are HCLCs. The record before us does not rebut the presumption as it relates to the TMLA’s expert report requirements, nor are the expert reports served by the plaintiffs adequate under the TMLA. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings. I. Background Guadalupe Cerda, individually and as next friend of her daughter Marissa Cerda, and Cindy Velez (collectively, the plaintiffs) sued Raul Ernesto Loaisiga, M.D., Raul Ernesto Loaisiga, M.D., P.A. (hereinafter, the P.A.), and Sunshine Pediatrics, LLP. The plaintiffs’ claims are based on two separate incidents. Guadalupe alleges that she took Marissa, then age seventeen, to Sunshine 2 Pediatrics for treatment of a sinus problem. According to the pleadings, Dr. Loaisiga examined Marissa and “under the guise of listening to [Marissa’s] heart through the stethoscope . . . cupped [Marissa’s] breast with the palm of his hand.” Velez, who was employed as a nurse at Sunshine Pediatrics, alleges that Dr. Loaisiga offered to examine her when she arrived at work with flu-like symptoms. She further alleges that during the examination Dr. Loaisiga had her take off her upper garment, then “he undid her bra from the front . . . [and] palmed her breast with one hand during his entire examination.” The plaintiffs sued for assault, medical negligence, negligence, gross negligence, and intentional infliction of emotional distress. They allege that Dr. Loaisiga knew or reasonably should have believed that Marissa and Velez would regard his touching of their breasts as offensive or provocative and Sunshine Pediatrics breached its duty and the appropriate standard of care by allowing Dr. Loaisiga to fondle them. The plaintiffs assert that although the case is actually for assault, in an “abundance of caution and in the alternative,” they claim Dr. Loaisiga’s actions “fell below the standard of care” for a doctor treating female patients. The pleadings of medical negligence specifically reference “Chapter 74 of the CPRC”—the TMLA. See TEX . CIV . PRAC. & REM . CODE §§ 74.001–.507. The plaintiffs pray for judgment against the three defendants, but they do not specifically allege any type of claim, either direct or vicarious, against the P.A. Within 120 days after filing their petition, the plaintiffs served Dr. Loaisiga and the P.A. with a report and curriculum vitae from Michael R. Kilgore, M.D., a family practitioner. See id. § 74.351(a), (b). Dr. Kilgore stated in the report that he had reviewed the plaintiffs’ petition. He recited allegations from the petition and stated that if they were true, then Dr. Loaisiga’s actions were 3 not within any appropriate standard of care, comprised an assault, and harmed the plaintiffs. In a supplemental report, Dr. Kilgore stated that the opinions he expressed as to Dr. Loaisiga also applied to the P.A. Dr. Loaisiga and the P.A. filed objections to the reports and motions to dismiss. They argued that the reports were deficient because they failed to (1) implicate conduct of either Dr. Loaisiga or the P.A., (2) set out the applicable standard of care, (3) identify a breach of the standard of care, or (4) identify how the actions of Dr. Loaisiga or the P.A. proximately caused the alleged injuries. The motions also asserted that Dr. Kilgore’s report was “based upon pure speculation and assumption” and Dr. Kilgore, as a family practitioner, was not qualified to render an expert opinion regarding Dr. Loaisiga’s conduct as a pediatrician. The P.A. separately argued that neither the original nor the supplemental report addressed any theories of liability as to it and, in any event, the supplemental report was deficient because it gave no explanation of why the opinions in the original report applied to the P.A. The plaintiffs’ response to each motion maintained that Dr. Kilgore’s reports were adequate; Dr. Loaisiga was acting both individually and as the P.A., so there was no difference between the actions of the two; and Dr. Kilgore’s reports were directed to both. In the alternative, the plaintiffs requested thirty-day extensions to cure any defects in the reports. See id. § 74.351(c) (stating that if an expert report is not timely served “because the elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency”). The trial court held a hearing on the motions to dismiss and denied them without stating why. Dr. Loaisiga and the P.A. appealed. See id. § 51.014(a)(9) (permitting immediate appeal of a trial court order denying all or part of a motion to dismiss for failure to serve an expert report in an 4 HCLC). The court of appeals affirmed. ___ S.W.3d ___. The court reasoned that the plaintiffs were not required to file expert reports because their claims against Dr. Loaisiga are assault claims, not HCLCs. See id. at ___. It did not reach the question of whether Dr. Kilgore’s reports were deficient. The court also concluded that the TMLA does not apply to the plaintiffs’ claims against the P.A. because the plaintiffs refer to the P.A. only in the introductory part of their pleadings and do not assert liability claims against it. See id. at ___. We granted the petition for review of Dr. Loaisiga and the P.A. 55 Tex. Sup. Ct. J. 145 (Dec. 16, 2011). Before turning to the parties’ arguments on the merits, we address our jurisdiction to consider this interlocutory appeal. II. Jurisdiction Texas appellate courts generally have jurisdiction only over final judgments. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). But an exception exists for certain interlocutory orders. See TEX . CIV . PRAC. & REM . CODE § 51.014(a); Jackson, 53 S.W.3d at 355. Section 51.014(a) provides in relevant part: A person may appeal from an interlocutory order of a district court, county court at law, or county court that: ... (9) denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351. TEX . CIV . PRAC. & REM . CODE § 51.014(a)(9). A court of appeals’ judgment ordinarily is conclusive when an interlocutory appeal is taken pursuant to section 51.014(a)(9). See TEX . GOV ’T CODE § 22.225(b)(3). However, we may consider 5 an interlocutory appeal when the court of appeals’ decision creates an inconsistency in the law that should be clarified to remove unnecessary uncertainty and unfairness to litigants. Id. §§ 22.001(a)(2), (e); 22.225(c), (e). This case involves an issue on which the courts of appeals have issued inconsistent decisions. Compare ___ S.W.3d at ___ (holding that a doctor’s alleged fondling of the plaintiffs’ breasts during medical examinations could not feasibly be explained as a necessary part of medical treatment and therefore does not give rise to an HCLC), with Vanderwerff v. Beathard, 239 S.W.3d 406, 409 (Tex. App.—Dallas 2007, no pet.) (concluding that a chiropractor’s alleged rubbing of a plaintiff’s genitals during a chiropractic examination gave rise to an HCLC because whether the chiropractor’s actions were within the scope of a chiropractic examination could not be answered without reference to the standard of care required of a chiropractic provider). We have jurisdiction to resolve this issue. TEX . GOV ’T CODE § 22.001(a)(2). III. Health Care Liability Claims A. General Determining whether claims are HCLCs requires courts to construe the TMLA. We review issues of statutory interpretation de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). The TMLA defines an HCLC as: a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13). According to its definition, an HCLC has three elements: (1) the defendant is a health care provider or physician; (2) the claimant’s cause of action 6 is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s alleged departure from accepted standards proximately caused the claimant’s injury or death. Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010) (plurality opinion). This case focuses on the second element which concerns the nature of a claimant’s “cause of action” and the definitions of medical care, health care, safety and professional or administrative services directly related to health care. See TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13). The TMLA does not define the term “cause of action,” but the generally accepted meaning of that phrase refers to the “‘fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.’” In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (quoting A.H. Belo Corp. v. Blanton, 129 S.W.2d 619, 621 (1939)). “Health care” is broadly defined as “any act . . . performed . . . by any health care provider for [or] to . . . a patient during the patient’s medical care, treatment, or confinement.” TEX . CIV . PRAC. & REM . CODE § 74.001(a)(10). And “medical care” is defined as “any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.” Id. § 74.001(a)(19). The Occupations Code, in turn, defines “practicing medicine” as “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions by a person who . . . publicly professes to be a physician.” TEX . OCC. CODE § 151.002(a)(13). 7 Analysis of the second element—the cause of action—focuses on the facts underlying the claim, not the form of, or artfully-phrased language in, the plaintiff’s pleadings describing the facts or legal theories asserted. See, e.g., Yamada v. Friend, 335 S.W.3d 192, 196-97 (Tex. 2010); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847, 854 (Tex. 2005). We have previously determined that a claim based on one set of facts cannot be spliced or divided into both an HCLC and another type of claim. See Yamada, 335 S.W.3d at 197; Diversicare, 185 S.W.3d at 854. It follows that claims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards. See TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13). The broad language of the TMLA evidences legislative intent for the statute to have expansive application. See, e.g., TEX . CIV . PRAC. & REM . CODE § 74.001(a)(10) (defining “health care” to include “any act . . . by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” (emphasis added)); see also Molinet, 356 S.W.3d at 411 (noting that when interpreting statutes we strive to ascertain and give effect to the Legislature’s intent). The breadth of the statute’s text essentially creates a presumption that a claim is an HCLC if it is against a physician or health care provider and is based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement. See Marks, 319 S.W.3d at 662. But the presumption is necessarily rebuttable. In some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or 8 healthcare will be the healthcare setting (i.e., the physical location of the conduct in a health care facility), the defendant’s status as a doctor or health care provider, or both. B. Assaults and the TMLA The elements of a civil assault mirror those of a criminal assault. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010). Under the Penal Code, an assault occurs if a 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 when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. TEX . PENAL CODE § 22.01(a). As relevant to the case before us, an assault occurs if a person “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Id. § 22.01(a)(3). Distinguishing between claims to which the TMLA applies and those to which it does not apply can be difficult when the plaintiff alleges an assault took place during a physical examination to which the patient consented. The scope of medical examinations generally are informed, and largely guided, by a combination of the patient’s complaints and the examiner’s training and professional judgment. During an examination for the purpose of diagnosing or treating a patient’s condition, a medical or health care provider almost always will touch the patient intentionally. Frequently, examinations involve examiners touching the patient’s body in places and in ways that 9 would be assaults were it not for the actual or implied consent of the patient in the context of the medical or health care relationship. And the examiner may need to examine parts of the patient’s body that might not be anticipated by a person without medical or health care training. Such a situation is demonstrated by Vanderwerff, a case in which no expert report was filed. There, Kristina Beathard sought treatment from Eric Vanderwerff, a chiropractor, complaining of pain in various parts of her body. 239 S.W.3d at 407. Beathard later sued Vanderwerff, alleging that “during the course of a routine examination of her knee” he rubbed her genitals. Id. at 409. The trial court denied Vanderwerff’s motion to dismiss for Beathard’s failure to serve an expert report, but the court of appeals reversed. Id. In doing so, it noted that Beathard had marked an anatomical drawing to show her areas of pain, and those markings indicated she was having pain not only in her neck, wrists, ankle, and left knee, but also running from her knee to her upper thigh. Id. The court of appeals set out the issue and its conclusion as follows: The threshold questions raised by Beathard’s pleadings are whether she consented to treatment and whether Vanderwerff’s examination was within the scope of a chiropractic examination. Was the examination a “routine” examination as Beathard contends? These questions cannot be answered without reference to the standard of care required of a chiropractic provider. Id. In essence, the court of appeals recognized that an expert report was necessary because Vanderwerff’s conduct in the overall context of the chiropractic examination could have been part of the care he was rendering pursuant to Beathard’s consent to be examined and treated for pain which, in part, she reported extended from her knee to the upper thigh. In balancing the respective rights of and burdens on claimants and medical and healthcare defendants, the Legislature has determined that requiring claimants to bear the expense of obtaining 10 and serving expert reports early in HCLCs is preferable to having parties incur substantial expense and devote considerable time to developing claims through discovery and trial preparation before a trial court determines which ones are meritless. See Scoresby, 346 S.W.3d at 552, 556; Palacios, 46 S.W.3d at 877. However, we fail to see how the Legislature could have intended the requirement of an expert report to apply under circumstances where the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separable from, the rendition of “medical care, or health care, or safety or professional or administrative services directly related to health care” even though the conduct occurred in a health care context. See TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13); see also TEX . GOV ’T CODE § 311.021 (“In enacting a statute, it is presumed that . . . a just and reasonable result is intended . . . .”). We conclude that a claim against a medical or health care provider for assault is not an HCLC if the record conclusively shows that (1) there is no complaint about any act of the provider related to medical or health care services other than the alleged offensive contact, (2) the alleged offensive contact was not pursuant to actual or implied consent by the plaintiff, and (3) the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was the setting in which the act took place. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam) (holding that a plaintiff’s battery claim was an HCLC because “[t]here may [have] be[en] reasons for providing treatment without specific consent that do not breach any applicable standard of care[, and] [t]he existence or nonexistence of such reasons is necessarily the subject of expert testimony”); Buck v. Blum, 130 S.W.3d 285, 289-90 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (concluding that a neurologist’s conduct was not in the course and scope of his 11 employment when a patient complained that the neurologist placed his penis instead of a metal weight in the patient’s hand during a neurological examination). IV. Expert Reports The TMLA’s expert report requirements do not require a trial court to make a merits determination regarding whether the claim is an HCLC. See Murphy, 167 S.W.3d at 838 (explaining that the requirement is a threshold over which a plaintiff must proceed); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (“[T]he expert report must represent only a good-faith effort to provide a fair summary of the expert’s opinions. A report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified in the statute.”). Nor does a determination that the TMLA’s expert report requirements apply to a claim affect other matters such as whether a physician or health care provider may be subject to professional sanctions or criminal prosecution for the conduct on which a plaintiff bases a claim. See Vanderwerff, 239 S.W.3d at 407 n.1 (noting that in addition to a civil case alleging sexual assault against a chiropractor for rubbing the patient’s genitals during an examination, a criminal complaint was filed against the defendant). The requirements are meant to identify frivolous claims and reduce the expense and time to dispose of any that are filed. See Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011) (“The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits.” (citation omitted)); see also TEX . CIV . PRAC. & REM . CODE § 74.351(k), (t) (providing that an expert report is not admissible in and shall not be used during depositions, trial, or other proceedings, nor shall it be referred to for any purpose absent the plaintiff’s using it in a way other than serving it pursuant to the 120-day service requirement of 12 section 74.351(a)); id. § 74.351(s) (limiting discovery until the expert report and curriculum vitae of the expert have been served). In Palacios we held that the TMLA’s language requires a trial court to determine a report’s adequacy from its four corners. 46 S.W.3d at 878. The statute does not similarly limit what a trial court may consider when the question is whether a claim is subject to the TMLA’s expert report requirements. Thus, when making that determination courts should consider the entire court record, including the pleadings, motions and responses, and relevant evidence properly admitted. This could include, but is not limited to, reports such as those the plaintiffs served here, medical records regarding examination or treatment of the plaintiff, if any, and the defendant’s pleadings and explanation for how the contact at issue was part of medical care, or health care, or safety or professional or administrative services directly related to health care. In light of the foregoing, we turn to the parties’ contentions. We address the defendants separately, beginning with Dr. Loaisiga. V. Dr. Loaisiga A. Was an Expert Report Required? Dr. Loaisiga argues that the plaintiffs were required to file an expert report because the alleged assaults occurred during the course of his administering medical services and all his actions were inseparable from the rendition of those medical services. The plaintiffs urge that, as the court of appeals held, their assault claims are not subject to the TMLA’s expert report requirements because Dr. Loaisiga’s acts do not implicate medical or health care services, regardless of whether medical treatment was occurring at the time of the assaults. Rather, they say the alleged acts of 13 assault are so inconsistent with the medical services Dr. Loaisiga was rendering, that the TMLA does not apply. In analyzing these arguments, we consider the entire record before the trial court and the overall context of the plaintiffs’ suit, including the nature of the factual allegations in their pleadings, Dr. Loaisiga’s contentions, and the motions to dismiss and responses. We look first to the pleadings. The plaintiffs’ pleadings contain allegations that except for Dr. Loaisiga’s touching of their breasts, the examinations were routine. The pleadings do not assert a lack of proper care by Dr. Loaisiga other than his touching of their breasts. Further, the plaintiffs’ brief on the merits posits that their pleadings made “no factual allegations that they were injured by any deficiencies in the medical care provided by Dr. Loaisiga.” The plaintiffs’ claims are qualitatively similar to the claims in Vanderwerff. See 239 S.W.3d at 407. Like the plaintiff in Vanderwerff, the plaintiffs here allege an examining doctor inappropriately touched parts of their bodies during the course of otherwise routine examinations. See id. But because the determination of whether the plaintiffs were required to serve an expert report is to be made based on the whole record, we must also consider other relevant documents in the record and Dr. Loaisiga’s contentions. In that regard, this case is distinguishable from Vanderwerff. One distinguishing factor is that the plaintiff in Vanderwerff did not serve an expert report. Here the plaintiffs served a report that stated, in part: During a routine “sick” visit with a physician, a stethoscope may be utilized to listen to the heartbeat of the patient. However, in all applicable medical standards of care, it is unnecessary that a patient remove their brazier, nor is it necessary to cup, palm or touch the breast of a female patient either with the hand holding the stethoscope or the other hand not holding the instrument to listen to a heart beat. 14 Another distinction is that the record in Vanderwerff contained an anatomical drawing on which the plaintiff indicated to the chiropractor that she had pain running from her knee to her upper thigh. Id. at 409. Based on that document, the court of appeals recognized that the chiropractor’s touching of, or near, the patient’s genitals could have been part of the examination. See id. Here, the record does not contain any documents other than the plaintiffs’ pleadings to shed light on the plaintiffs’ symptoms or their complaints to Dr. Loaisiga. As discussed in more detail below, apart from allegations in the plaintiffs’ pleadings, Dr. Kilgore’s reports make no reference to the plaintiffs’ medical records or the complaints they made to Dr. Loaisiga in the clinical setting. The substance of the plaintiffs’ complaint is that Dr. Loaisiga’s conduct exceeded the scope of the examinations to which they consented, and Dr. Kilgore’s report shows that it is unnecessary for a physician to touch a female patient’s breasts during routine examinations of the type Dr. Loaisiga was performing. But even taken together, these aspects of the record do not conclusively rebut the presumptive application of the TMLA’s expert report requirements. The lack of information to give context to Dr. Loaisiga’s actions during the examinations—such as medical records, if any, reference to the medical records by Dr. Kilgore in his reports, or other information regarding the plaintiffs’ symptoms and complaints to Dr. Loaisiga—prevents the plaintiffs from showing conclusively that the only relationship between the alleged touching of their breasts and Dr. Loaisiga’s rendition of medical services was the physical location of the examinations at the offices of Sunshine Pediatrics and his status as a doctor or health care provider. We conclude that the record does not contain sufficient information to conclusively show that Dr. Loaisiga’s conduct could not have been part of the examination he was performing. But because 15 we are clarifying the standard for whether claims are subject to the TMLA’s expert report requirements and the plaintiffs maintain that theirs are not, we conclude it is appropriate to remand the case to the trial court for further proceedings regarding that issue. See Low v. Henry, 221 S.W.3d 609, 621 (Tex. 2007) (remanding “to allow the parties to present evidence responsive to our guidelines”). B. Adequacy of the Reports The court of appeals did not consider whether Dr. Kilgore’s reports are adequate to meet the requirements of section 74.351 because it concluded that no expert reports were necessary. ___ S.W.3d at ___. If, on remand, the trial court determines expert reports are necessary under the TMLA, the adequacy of Dr. Kilgore’s reports must be determined. Dr. Loaisiga preserved the adequacy issue in the courts below and briefed and argued it here. Therefore, without expressing any opinion as to whether the TMLA’s expert report requirements will ultimately apply to this case, in the interest of judicial efficiency we address whether Dr. Kilgore’s reports comply with the TMLA’s requirements. See TEX . R. APP . P. 53.4; Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 855 (Tex. 2011). When a document purporting to be an expert report is timely served in an HCLC and is properly challenged, the trial court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6). TEX . CIV . PRAC. & REM . CODE § 74.351(l). To qualify as an objective good faith effort the report must (1) inform the defendant of the specific conduct the plaintiff questions, and (2) provide a basis 16 for the trial court to conclude that the plaintiff’s claims have merit. Scoresby, 346 S.W.3d at 556 (citing Palacios, 46 S.W.3d at 879). A report meets the minimum qualifications for an expert report under the statute “if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant’s conduct is implicated.” Id. at 557. If a report meets these qualifications but is deficient, and an extension to cure is requested, the trial court may grant one thirty-day extension to cure the deficiencies. See TEX . CIV . PRAC. & REM . CODE § 74.351(c). But if a report does not meet the standard set in Scoresby, it is not an expert report under the statute, and the trial court must dismiss the plaintiff’s claims if the defendant has properly moved for dismissal. TEX . CIV . PRAC. & REM . CODE § 74.351(b). Dr. Loaisiga advances three arguments why the case should be dismissed if the TMLA’s expert report requirements apply. The arguments all substantively rely on his position that Dr. Kilgore’s reports cannot be good faith attempts to provide expert reports because they merely assume the truth of what is in the plaintiffs’ pleadings. Dr. Loaisiga first argues that Dr. Kilgore’s assuming the truth of the plaintiffs’ pleadings results in the reports being wholly speculative because the pleadings are merely unverified allegations. He also asserts that the reports (1) improperly require the trial court to assume facts outside their four corners and (2) do not in good faith identify and state the breach and causation elements required to be contained in expert reports because they are conditioned on certain facts being true. In response, the plaintiffs maintain that Dr. Kilgore was entitled to rely on their pleadings as true. They posit that whether their allegations are credible is a matter for the jury to decide, not a matter for the trial judge in passing on whether the reports are a 17 good faith effort to comply with the TMLA requirements. To a certain extent we agree with both parties. The fact that pleadings are not verified does not relieve attorneys and parties from their obligation to avoid including groundless or bad faith allegations in them. To the contrary, including such allegations in pleadings is sanctionable. See TEX . R. CIV . P. 13. Thus, we do not see why an expert, in formulating an opinion, should be precluded from considering and assuming the validity of matters set out in pleadings in the suit, absent a showing that the pleadings are groundless or in bad faith or rebutted by evidence in the record. On the other hand, the purpose of an expert report is to give the trial court sufficient information within the four corners of the report to determine if the plaintiff’s claim has merit. Scoresby, 346 S.W.3d at 554, 556. If an expert could formulate an adequate expert report by merely reviewing the plaintiff’s pleadings and assuming them to be true, then artful pleading could neutralize the Legislature’s requirement that expert reports demonstrate the plaintiff’s claims have merit. See id. That is because the facts and circumstances alleged in the plaintiff’s pleadings might omit or misstate, inadvertently or otherwise, matters critical to a valid expert opinion. An expert report based only on the plaintiff’s pleadings could mask the context of the medical services or health care rendered. Significant matters involved in the rendition of the care, such as the patient’s complaints or the health care provider’s findings, could warrant investigation and examination beyond that which might otherwise seem to have been appropriate, yet be unknown to the expert. If such matters were not in the plaintiff’s pleadings the expert would not have considered them, the expert report would not reference them, and because they are outside the four corners of the report, 18 the trial court could not consider them in deciding whether the plaintiff’s claims have merit. That is not what we believe the Legislature intended. See id. at 552-54. We conclude that in formulating an adequate expert report under section 74.351, an expert may consider and rely on the plaintiff’s pleadings, but the expert must consider more than the pleadings. How much more will depend on the particular circumstances of the claim. But we fail to see how in most instances, and particularly in claims involving the scope of an examination, an expert report could be adequate unless the expert at least considered and commented on the patient’s medical records to the extent the records and their contents—or lack of appropriate contents—are relevant to the expert’s opinion. In this case Dr. Kilgore’s reports and curriculum vitae demonstrate that he is a trained and practicing physician. He has sufficient expertise in the medical field to be qualified to provide an adequate expert report. See Scoresby, 346 S.W.3d at 557. The reports also demonstrate that he is of the opinion the plaintiffs’ claims have merit. See id. But his failure to consider any matters other than the plaintiffs’ pleadings in formulating his opinion make his existing reports inadequate to comply with section 74.351’s expert report requirements. On the other hand, we disagree with Dr. Loaisiga’s position that the deficiencies in Dr. Kilgore’s reports require dismissal of the plaintiffs’ claims against him. The reports meet the standard set out in Scoresby, and the plaintiffs requested a thirty-day extension to cure defects in them in the event they were deficient. Accordingly, if on remand the trial court determines that the TMLA’s expert report requirements apply to this case, the court should consider the plaintiffs’ request for an extension of time to cure deficiencies in the reports as to Dr. Loaisiga. See id. 19 VI. The P.A. A. Was an Expert Report Required? The plaintiffs’ petition names the P.A. as a defendant and prays for judgment against it, but the pleading does not mention the P.A. otherwise. The court of appeals concluded that the TMLA did not apply to the P.A., given the lack of “allegations of medical negligence or otherwise” against the P.A. ___ S.W.3d at ___. We disagree with that conclusion. The court of appeals focused on the latter part of the first sentence of section 74.351(a), emphasizing the requirement of an expert report “for each physician or health care provider against whom a liability claim is asserted.” ___ S.W.3d at ___ (quoting TEX . CIV . PRAC . & REM . CODE § 74.351(a)). However, that portion of the statute’s text must be read in conjunction with the words that surround it. See Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011) (explaining that we interpret statutory text according to its plain meaning and context unless such a construction leads to absurd or nonsensical results). The beginning of the sentence the court of appeals quoted refers to “a health care liability claim.” TEX . CIV . PRAC. & REM . CODE § 74.351(a). Reading the sentence as a whole shows that “a liability claim” is merely an abbreviated reference to “a health care liability claim,” which is elsewhere defined in the TMLA as “a cause of action.” Id. § 74.001(a)(13); see also Mokkala v. Mead, 178 S.W.3d 66, 71 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“A ‘health care liability claim’ is a ‘cause of action,’ not a lawsuit.”). And as we have explained, a “cause of action” means the “fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” In re Jorden, 249 S.W.3d at 421 (citation omitted). Therefore, the expert report requirements are triggered when a plaintiff 20 names a person or entity as a defendant and seeks to obtain relief from that defendant based on facts that possibly implicate the TMLA. This construction of the statute furthers the purpose of the expert report requirements. See Scoresby, 346 S.W.3d at 554; see also Molinet, 356 S.W.3d at 411 (stating that our objective in construing a statute is to ascertain and give effect to the Legislature’s intent). If a plaintiff could name and seek judgment against a medical or health care provider based on facts that fall within the TMLA’s coverage without triggering the 120-day deadline for serving an expert report, it would open the door to artful pleading and undermine the Legislature’s goal of accelerating the disposition of non-meritorious HCLCs. See Scoresby, 346 S.W.3d at 554; Diversicare, 185 S.W.3d at 854. In this case the plaintiffs made the P.A. a party to the case and sought judgment against it based on no facts other than those underlying their claims against Dr. Loaisiga. The P.A. is named after Dr. Loaisiga, and he has not disputed the plaintiffs’ allegation that he was and is its sole officer and director. The plaintiffs’ response to the P.A.’s motion to dismiss alleged that Dr. Loaisiga acted both individually and as the P.A. when he assaulted the plaintiffs and there “is no differentiation between the two.” As we discuss above, the determination of whether a plaintiff’s expert report is adequate is not a merits determination, but rather a preliminary determination designed to expeditiously weed out claims that have no merit. In this case the pleadings and record were sufficient to make the plaintiffs’ claims as to the P.A. clear: they claimed it was vicariously liable for Dr. Loaisiga’s conduct. The P.A. could have excepted to and sought clarification of the pleadings if it desired to have them clarified, but it did not do so. 21 We conclude that if the plaintiffs’ claims assert HCLCs, then the TMLA’s expert report requirements apply to the claims against the P.A. just as they do to the claims against Dr. Loaisiga individually. B. Adequacy of the Reports The court of appeals did not consider whether Dr. Kilgore’s reports are adequate to meet the requirements of section 74.351 as to the P.A. ___ S.W.3d at ___. We address the issue for the same reasons expressed above as to Dr. Loaisiga. See TEX . R. APP . P. 53.4; Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d at 855. Dr. Kilgore stated in his September 3, 2009 report that “[a]ll opinions expressed and contained in my previous report are adopted in this supplemental report and are also applicable to [the P.A.].” His previous report demonstrated that he is a trained and practicing physician who holds the opinion that Dr. Loaisiga’s conduct is implicated and the plaintiffs’ claims against Dr. Loaisiga have merit. See supra Part V.B. But, as we explain above, Dr. Kilgore’s previous report is not adequate to comply with section 74.351 because he considered only the plaintiffs’ pleadings in formulating his opinions. By adopting the previous report, the supplemental report meets the minimal standard set out in Scoresby, just as the original report did, but it is deficient as to the P.A., just as the original report was deficient as to Dr. Loaisiga. So, if on remand the plaintiffs’ claims are determined to be HCLCs subject to the TMLA’s expert report requirements, the trial court should consider the plaintiffs’ request for an extension of time to cure the reports as to the P.A. See TEX . CIV . PRAC. & REM . CODE § 74.351(c). 22 VII. Conclusion We reverse the judgment of the court of appeals. We remand the case to the trial court for further proceedings in accordance with this opinion. See id.; Scoresby, 346 S.W.3d at 557. ________________________________________ Phil Johnson Justice OPINION DELIVERED: August 31, 2012 23	{ "pile_set_name": "FreeLaw" }
683 S.W.2d 898 (1985) JIM HALSEY CO., INC., Appellant, v. Chet BONAR, Appellee. No. 84-180. Supreme Court of Arkansas. February 4, 1985. Rehearing Denied April 15, 1985. 901 Martin, Vater & Karr by Charles Karr, Fort Smith, for appellant. Jack Skinner, Greenwood, for appellee. HOLT, Chief Justice. This case arose when Rick Nelson did not appear for a muscular dystrophy benefit concert in Fort Smith. The concert promoter, Chet Bonar, filed suit against Nelson's booking agent, Jim Halsey Co., Inc., for breach of contract, fraud, and negligence. This appeal from the jury's verdict in favor of the promoter is before us under Sup. Ct.R. 29(1)(c) and (o) as it presents questions about an act of the general assembly and in the law of torts. We affirm. The facts are summarized as follows: A muscular dystrophy association festival was planned in Fort Smith by the appellee, Bonar, and others, which was to include an arts and crafts fair, other activities at Kay Rodgers Park, and a concert by a named performer. Bonar was to receive 25% of the gross from ticket sales, gate fees, and arts and crafts table rentals. Bonar contacted the appellant, Halsey Inc., to hire a performer for the concert. Rick Nelson was selected for a $6,500.00 fee. The fee was increased twice with Bonar's approval until it was set at $8,500.00. In each instance a contract was prepared by Halsey Inc., and sent to Bonar for his signature. 902 Bonar returned the signed contract to Halsey Inc., and it was forwarded to Nelson for his signature. It was never signed by Nelson or by his personal manager, Greg McDonald. Bonar made a $3,750.00 deposit to Halsey Inc. on July 27, 1979, and began promoting the concert based on the appellant's assurances that Nelson would appear. The concert was scheduled for August 18, 1979. The final contract was sent to Bonar for his signature on August 2, which Bonar again signed and returned to Halsey Inc., who again forwarded it to Nelson. He still did not sign the contract. Two days before the concert, McDonald notified Halsey Inc. who in turn notified Bonar that Nelson would not perform at the concert. Halsey Inc. offered Hank Williams, Jr., in his place, and Williams played the concert for a fee of $6,500.00. Bonar filed suit for breach of contract, fraud, and negligence. The jury returned a verdict for Bonar for $100,000.00. The appellant raises numerous points on this appeal. We will address them in the order in which they were discussed in the parties' briefs. The first allegation is that the trial court erred when it submitted the case to the jury on any theory other than breach of contract. The appellee also alleged fraud and negligence in his complaint. The jury was instructed as to these two theories in addition to breach of contract. The appellant is apparently arguing that the appellee cannot pursue his case under two theoriescontract and tort. Halsey Inc. maintains therefore that breach of contract is the appropriate theory, since the facts do not support the allegations of fraud and negligence. This argument is without merit. This court has held that when a defendant denies liability, a plaintiff may proceed under two consistent theories of recovery. Elrod v. G. & R. Const. Co., 275 Ark. 151, 628 S.W.2d 17 (1982); Brown v. Aquilino, 271 Ark. 273, 608 S.W.2d 35 (1980); Ark.R. Civ.P. 18(a); Brill, The Election of Remedies Doctrine in Arkansas, 37 Ark.L.Rev. 385, 408 (1983). Contract and tort theories have been determined to be consistent when both seek the same relief and the evidence to support recovery on one theory partially supports it on another. Brill, supra. Here, the remedies are concurrent and consistent in that they arise out of the same transaction, the same facts prove at least parts of the theories, and no inconsistent positions are taken. The appellee's allegations of fraud and negligence are based on factual representations by the appellant that they would provide Nelson for the concert. The appellee states that Halsey Inc., knew these representations were untrue and that he, as a promoter, relied on the representations and was damaged as a result. He further maintains that Halsey Inc., had a duty to warn him of the likelihood that Nelson would not appear in sufficient time for him to seek a substitute performer and fully promote that performer. The appellee offered evidence in support of these allegations sufficient to instruct the jury on theories of fraud and negligence. There was no error. The next issue raised is that the trial court erred in admitting testimony and exhibits of potential lost profits, past and future, and submitting them as damages to the jury because such lost profits were speculative and conjectural. The jury was instructed that, if they ruled in favor of the appellee, they were to award him an amount of money to fairly compensate him for the following elements of damage: First: The value of any profits lost and the present value of any profits reasonably certain to be lost in the future. Second: The present value of any loss of ability to earn in the future. Third: The value of any expenses lost. The appellant objected to this instruction on the basis that there was no substantial evidence making it reasonably certain that appellee would have made, or will make a 903 profit. Halsey Inc., maintains the evidence was insufficient to remove the question of profits from the realm of speculation and conjecture. We disagree. On appeal this court views the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support the jury's verdict. American Fidelity Fire Ins. Co. v. Kennedy Bros. Const., 282 Ark. 545, 670 S.W.2d 798 (1984). The appellee offered the following evidence as to lost profits. He maintained that he would have received a profit of $15,193.75 if Rick Nelson had appeared. The $15,193.75 figure was based on 85% capacity at the stadium, with half of the tickets sold to adults for $7.00 and half to children for $4.00. Half of the partial capacity seating was then multiplied by $4.00 and the other half by $7.00. These two gross revenues were then added. That total was multiplied by 25%, Bonar's contractual share of the ticket sale. The total equalled $15,193.75. Bonar's evidence of loss of reputation was supported by his own testimony about the good reputation he previously enjoyed and the testimony of Fred Baker, Jr., another local promoter. Baker and other concert sponsors also testified that they would not hire Bonar again because of what happened with the Nelson concert. Baker testified as to the amount of income the appellee will lose as a result of the damage to his reputation. The witness stated that a promoter can expect to put on at least one concert a year. He then figured a reasonable income from that concert based on a formula which included the number of seats at the local stadium, a typical ticket price, and reasonable ticket sales based on an average vacancy rate. He subtracted concert expenses and arrived at a new yearly income for the promoter of $31,880.00. A second witness testified as to the present value calculation of that annual income over periods of three, five, and ten years. This court has held that: The rule that damages which are uncertain or contingent can not be recovered, does not apply to uncertainty as to the value of the benefits to be derived from performance, but to uncertainty as to whether any benefit would be derived at all. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover. Crow v. Russell, 226 Ark. 121, 289 S.W.2d 195 (1956), (quoting Black v. Hogsett, 145 Ark. 178, 224 S.W. 439 (1920)). The fact that a party can state the amount of damages he suffered only approximately is not a sufficient reason for disallowing damages if from the approximate estimates a satisfactory conclusion can be reached. Williams v. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13 (1982). Here, the appellee offered sufficient proof that he would have realized a profit and an approximate estimate of what that profit would have been. In proving anticipated profits, a party "must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there could have been any profits." American Fidelity Fire Ins. Co. v. Kennedy Bros. Const., supra (quoting Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947)). Here again, the appellee offered proof of the amount of lost future profits, along with the formula used to compute the amount. It was therefore not error to submit lost profits to the jury as damages. The appellant's third argument is that the trial court erred in not dismissing the appellee's negligence and fraud causes of action because they were barred by the statute of limitations. The allegations of fraud and negligence were raised by the appellee in amendments to his original complaint. The trial court has broad discretion to permit amendments to pleadings and we sustain 904 the exercise of that discretion unless it is manifestly abused. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983); Ark.R. Civ.P. 15. Rule 15 not only makes liberal provision for amendments to pleadings, it also states that any claim asserted in the amended pleading, which arises "out of the conduct, transaction or occurrence set forth in the original pleading, ... relates back to the date of the original pleading." Rule 15(c). Since the amendment relates back, there can be no statute of limitations objection to the amendment without proof of undue delay or prejudice. See, Brill, supra; Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984). No such proof was offered here. The appellant next contends that the trial court erred in not dismissing appellee's cause of action based upon fraud because the complaint and amendments failed to state with particularity the circumstances of fraud. Ark.R.Civ.P. 9(b) provides: (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud, mistake, duress, or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with particularity. The appellee's amended complaint stated that the defendant (the appellant here) made factual representations that they had an agreement with Rick Nelson and would provide him for the concert and that "[t]hese representations were untrue and known to be untrue by the Defendant." Bonar then alleged reliance on the factual representations and resulting damages. When the appellant objected at trial to the proof offered as to fraud, the judge ruled that the allegation of misrepresentation in the original complaint was stated "with enough particularity to give notice and ... the subsequent amendments relate back." This court has held that fraud must be specifically alleged and that, "[t]he facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation (emphasis added), ... by which another is misled, to his detriment; and these ... must be alleged and proved." (citations omitted). Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 532 S.W.2d 175 (1976). We found that a cause of action had been stated in Beam where the complaint alleged a representation and its falsity, which was material to the contract; reliance on the representation; the right to so rely; and resulting damages. Here, proof was offered of a misrepresentationthat Nelson would appearwhich was material to the contract; reliance on the representation since Bonar began promoting the concert; the right to so rely, based on Halsey Inc.'s representation that they had an agreement with Nelson; and resulting damages. The allegation of fraud was therefore stated with sufficient particularity. The fifth issue raised is that it was error to permit cameras in the courtroom and adjacent areas over appellant's objection. In Petition of Ark. Bar Ass'n, 271 Ark. 358, 609 S.W.2d 28 (1980), this court adopted Canon 3 of the Code of Judicial Conduct and decided to permit broadcasting and photographing of trial proceedings. See also, Modification of Code of Judicial Conduct, 275 Ark. 495, 628 S.W.2d 573 (1982) (removing the requirement of prior written consent from all parties and witnesses). The final version of the rule, in pertinent part, reads: (b) An objection timely made by a party or attorney shall preclude broadcasting... of the proceedings; and an objection timely made by a witness who has been informed of the right to refuse such exposure, shall preclude broadcasting. The rule also vests in the trial judge the right to make the final decision as to "whether it would be fitting and proper to permit photographing and recording of trial proceedings." 271 Ark. at 361, 628 S.W.2d 573. Appellant argues that he objected to the use of cameras in these proceedings 905 and the activity should therefore have been prohibited. The appellant is correct in his contention that an objection by one of the parties is sufficient to prevent any broadcasting or photography. Therefore it was error for the trial judge to disregard Canon 3 and permit the broadcasting. When the appellant offered his objection at the beginning of the trial, the judge ruled that he would allow the cameras in, but he stated, "If it becomes distracting to anyone, they should raise an objection at that time and I'll take care of it at that time." Subsequently the appellant did not object. The appellant acquiesced in the trial judge's ruling by failing to make further objections during the course of the trial. In this instance, the error was rendered harmless. The bench and bar should be on notice however that this court will closely scrutinize any further violation of this rule. The sixth assignment of error is the trial court's denial of appellant's motion for mistrial when it was revealed that two jurors watched television news accounts of the trial contrary to the court's instructions. The trial judge has wide discretion in dealing with a motion for mistrial and we do not reverse absent a manifest abuse of that discretion. Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304 (1981). We find no such abuse of discretion here. The two jurors who watched the news account testified that all they saw was a picture of Rick Nelson and they heard that the trial was taking place after four years. The court admonished the jurors to disregard what they saw and decide the case only on what was presented in court. The appellant failed to demonstrate any prejudice as a result of the juror's actions. The seventh issue in this appeal concerns the trial court's failure to dismiss appellee's cause of action because he failed to register with the secretary of state as a professional fund raiser and because he allegedly contracted to charge more for his services than allowed by the law. This argument is also without merit. The appellant is contending that the appellee's failure to comply with the statute made the contract illegal and therefore unenforceable. Illegality of a contract is an affirmative defense which under Ark.R.Civ.P. 8(c) must be specifically pled. The appellant instead raised this issue in a motion for a directed verdict. Substantively, the argument also must fail. The requirements cited by the appellant are contained in Ark.Stat.Ann. §§ 64-1608 64-1615 (Repl.1980). These statutes require "any person acting as a professional fund raiser for any charitable organization to register with the Secretary of State", § 64-1609; require all contracts between the fund raiser and the organization to be in writing, § 64-1610; and provide that no such contract shall allow the fund raiser to receive more than 25% of the money collected. Id. These are the provisions the appellant claims the appellee violated. A professional fund raiser is defined however by § 64-1608 as "any person who for compensation or any other consideration plans, conducts or manages in this state the solicitation of contributions for or on behalf of any charitable organization." The appellee was not soliciting contributions, he was promoting a concert and selling tickets, with the proceeds benefiting a charitable organization. The act is therefore inapplicable to him. The next assignment of error concerns the trial court's failure to grant appellant's motion for summary judgment. The motion was based on the written contract which provided that any claim, dispute, or controversy arising under the contract shall be arbitrated by the international executive board of the American Federation of Musicians. The appellant cites as authority a Louisiana case where Nelson failed to appear for a concert and the disagreement was submitted to arbitration by court order. Hodges, d/b/a Old South Jamboree 906 v. Rick Nelson, et al, # 79-605-B (M.D.La. Aug. 20, 1981). That situation was distinguishable however, in that in Louisiana, there was a written signed contract and the issues to be resolved concerned who had the authority to sign for Nelson. Here, there was merely an unsigned written contract and an oral contract between the appellant and the appellee, which the appellant breached. The appellee sued for breach of the oral agreement whereby appellant promised to provide Rick Nelson for the concert. It was the written contract which contained the provision calling for arbitration. That provision is therefore inapplicable. Furthermore, this case presents questions in the law of torts which are not subject to written agreements to arbitrate. See Ark.Stat.Ann. § 34-511 (Supp.1983). The ninth issue is whether the trial court erred in admitting a video tape of promotions for the muscular dystrophy association because it was irrelevant and so prejudicial as to outweigh its probative value. The evidence consisted of interviews about the festival, news stories and public service announcements. The judge admitted the evidence for the purpose of proving promotion efforts by the appellee. Rulings on the relevancy of evidence are discretionary with the trial court and we do not reverse absent an abuse of discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). No abuse of discretion is demonstrated. The final argument presented by the appellant is that the trial court should have granted his motion for judgment notwithstanding the verdict (n.o.v.) because the verdict was for excessive damages and was apparently influenced by passion and prejudice. We uphold the denial of a motion for judgment n.o.v. "if there is any substantial evidence to support the jury's verdict." Arkansas Power & Light Co. v. Adcock, 281 Ark. 104, 661 S.W.2d 392 (1983). The trial judge is to set aside a jury verdict only if he finds it to be against the clear preponderance of the evidence. Pilkington v. Riley Paving Co., 271 Ark. 746, 610 S.W.2d 570 (1981). We have previously commented on several aspects of the evidence, particularly on the admissibility of damages based on lost profits, past and future. We therefore find that there was substantial evidence to support the verdict. Affirmed.	{ "pile_set_name": "FreeLaw" }
379 F.2d 528 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.BEDFORD-NUGENT CORPORATION, Respondent. No. 15875. United States Court of Appeals Seventh Circuit. June 2, 1967. Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Elliott Moore, Atty., National Labor Relations Bd., Washington, D. C., for petitioner. Harry P. Dees, Joseph A. Yocum, Arthur R. Donovan, Evansville, Ind., for respondent, Kahn, Dees, Donovan & Kahn, Evansville, Ind., of counsel. Before CASTLE and FAIRCHILD, Circuit Judges, and MAJOR, Senior Circuit Judge. CASTLE, Circuit Judge. 1 This case is before the Court upon the petition of the National Labor Relations Board to enforce an order of the Board issued against the respondent, Bedford-Nugent Corporation, on February 25, 1965. The Board's decision and order are reported at 151 NLRB 216. 2 The Board found that Bedford-Nugent violated Section 8(a) (3) and (1) of the National Labor Relations Act, as amended, by discriminatorily selecting twenty-one pro-union employees for layoff between June 25 and July 6, 1962. By its order the Board requires the company to make these individuals whole for any loss of pay they may have suffered by reason of the discrimination against them, from the date of their layoffs until the date of the company's cessation of business, July 31, 1962. 3 In its reported decision and order, the Board approves the findings, conclusions and recommendations of the hearing examiner, and adopts them as its own. 4 Bedford-Nugent's opposition to the enforcement petition is grounded on its contention that the Board's position that "[t]he only discernible pattern in the layoffs was the union affiliation of those selected" is not supported by substantial evidence on the record considered as a whole and in the light of uncontroverted evidence which opposes the Board's view. 5 We have carefully examined the record, and appraising it on the basis of such controlling standard, as we must, (Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; N. L. R. B. v. Audio Industries, Inc., 7 Cir., 313 F.2d 858) we find no basis for upsetting the findings and conclusions adopted by the Board. 6 The layoffs occurred after picketing of the company's premises by union1 adherents had been resumed on June 25, 1962, following a week-long strike. During the first week of picketing, the company laid off 19 employees, and by July 6, 1962, it had laid off 2 more. All had been members of the union, which, since September of 1961 had been engaged in organizational efforts. All had participated in a September 1961 strike, and many had engaged in earlier picketing during April 1962. Of the 25 unit employees who remained on the company's payroll as of July 30, 1962, only 1 was an adherent of the union. During July, some 18 of the approximately 25 unit employees remaining on the payroll worked regularly, many accumulating substantial amounts of overtime. Aside from the 1 union adherent, the unit employees who had not been laid off were either not specifically identified with the union or were former members who had repudiated the union. 7 Shortly after the June picketing began, the company vice-president, Nugent, made statements to supervisory personnel that "he was going to close down" and that "he wasn't going to have the union telling him what to do". In April 1962, he had told a company supervisor that "he would do anything he could to get around the union". After the June picketing began a company superintendent, in a conversation with employees, made the statement that the company would have no trouble if it "got rid of" all those employees who participated in union activity, and he advised another employee of Nugent's intent to close down his business before having a union. 8 Company activities during the 1961 organizational efforts were found to constitute unfair labor practices in Board proceedings enforced in N. L. R. B. v. Bedford-Nugent Corp., 7 Cir., 317 F.2d 861. 9 At the end of July 1962, Bedford-Nugent sold its business. In this connection the Board found that Bedford-Nugent has permanently gone out of business and has no plants or employees. It also found that the July 31, 1962 cessation of business and close down of sand and gravel operations by Bedford-Nugent was for reasons which were not violative of the Act, and that the employment relationship of all employees, including the discriminatees, was validly terminated on that date. Backpay is to be limited to the period from the date of layoff to July 31, 1962, under the terms of the Board's order. 10 The company urges that there is evidence which supports a conclusion that the picketing which commenced on June 25, 1962, so curtailed the company's production ability that it had an economic justification for the layoffs. But this argument is unconvincing. Burk Brothers v. N. L. R. B., 3 Cir., 117 F.2d 686. The layoffs began and were completed shortly after the picketing commenced and well in advance of any substantial effect it may have had on sales. Moreover, the union adherents were continued on layoff, while non-union employees worked substantial overtime. In any event, the possibility that some layoffs may have been economically justified is no defense for the selection of employees for layoff on the basis of union adherence or affiliation. N. L. R. B. v. Deena Products, 7 Cir., 195 F.2d 330, 335. 11 Here the openly expressed hostility of the company to union organization of its employees, the unfair labor practice history of the company, and the disproportionately large number of known union adherents laid off compared with the number of non-union adherents retained, combine to warrant the conclusion that the layoffs were discriminatorily motivated. National Labor Relations Board v. Shedd-Brown Mfg. Co., 7 Cir., 213 F.2d 163, 174; N. L. R. B. v. American Casting Service, Inc., 7 Cir., 365 F.2d 168, 172. The Board was justified in relying on the evidence of discrimination presented on the record as a whole and was not required to deny relief because there was no direct evidence of specific intent as to the layoff of each employee involved. 12 On consideration of the briefs, oral argument, the reported decision and order, and the record as a whole, we hold that there is substantial evidence to support the findings of the Board and that the Board applied the correct legal criteria in arriving at its conclusions with respect to the layoffs involved. 13 In view of the fact that the Board has found that Bedford-Nugent "has permanently gone out of business and has no plants or employees" we are of the opinion that the "cease and desist" portions of the Board's order are singularly inappropriate and without foundation. Accordingly, enforcement of the Board's order is limited to its affirmative direction that Bedford-Nugent make the individuals named in the order whole for any loss of pay suffered by reason of discriminatory layoff. 14 Enforcement ordered, in part. Notes: 1 Local 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America	{ "pile_set_name": "FreeLaw" }
898 S.W.2d 469 (1995) 320 Ark. 707 Tony Franklin WILSON, Appellant, v. STATE of Arkansas, Appellee. No. CR 95-112. Supreme Court of Arkansas. June 5, 1995. 470 Robert A. Newcomb, Little Rock, for appellant. Vada Berger, Asst. Atty. Gen., Little Rock, for appellee. ROAF, Justice. Tony Wilson was convicted of raping his twelve year old daughter and sentenced to 60 years in prison. His sole contention on appeal is that there was insufficient evidence to prove his guilt beyond a reasonable doubt. We find no merit to his argument and affirm the judgment. At trial, the victim testified that her father raped her in his trailer when she was visiting with him over the weekend of November 6, 1993. However, she did not tell her mother, with whom she lived, until some months later, and was not examined for evidence of sexual assault until March, 1994. The exam revealed a healed injury consistent with traumatic vaginal penetration. At trial, appellant, his mother, sister and two of his children who lived with him all testified that the victim had not spent the weekend of November 6, 1993 at the appellant's trailer, and that she had not spent the night with appellant since some time in July, 1993. Appellant's motion for directed verdict based on insufficiency of the evidence was denied by the trial court, and he appeals from this denial. Appellant argues that because all his witnesses refuted the victim's testimony that she spent the weekend of November 6, 1993 with appellant and because she gave differing versions of some details of the rape, the evidence was insufficient to support the verdict. There is no merit to the argument. A motion for a directed verdict is a challenge to the sufficiency of the evidence, and when such a challenge is made we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). If there is any substantial evidence to support the verdict we will affirm. On matters of credibility of the witnesses and conflicting testimony, we have repeatedly held that the determination of those issues is left to the trier of fact. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994); Miller v. State, 318 Ark. 673, 887 S.W.2d 280 (1994); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987); Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). The jury in this case judged the credibility of the victim's testimony and returned a guilty verdict. We have also long and repeatedly held that the uncorroborated testimony of a rape victim, adult and children alike, is substantial evidence and sufficient to support the verdict. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995); Byrum v. State, supra; Lukach v. State, supra; Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992). Appellant argues that the evidence was insufficient to establish that the victim spent the weekend with him on the date charged by the State. However, lack of certainty as to the date does not defeat a charge of this nature. 471 In Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992), involving rape of two minors by their stepfather, we said: By statute and case law it is established that generally the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Arkansas Code Ann. § 16-85-405(d) (1987); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988); Kirkham v. City of North Little Rock, 227 Ark. 789, 301 S.W.2d 559 (1957). That is particularly true with sexual crimes against children and infants. In Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990), another case involving rape of a minor, we said "Any discrepancies in the testimony concerning the date of the offense were for the jury to resolve." See also Ark. Code Ann. § 16-85-405(a)(2)(d) (1987); Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987). The victim in this case gave a full and detailed accounting of the appellant's actions which is sufficient to support the verdict. Finding no error, we affirm the judgment.	{ "pile_set_name": "FreeLaw" }
16 F.3d 401NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Maxwell M. TAYLOR, Petitioner, Appellant,v.Charles T. COBB, DISTRICT DIRECTOR, U.S. IMMIGRATION &NATURALIZATION SERVICE, Respondent, Appellee. No. 93-1776. United States Court of Appeals,First Circuit. February 11, 1994 Appeal from the United States District Court for the District of Massachusetts Maxwell M. Taylor, on brief pro se. A. John Pappalardo, United States Attorney, and Naomi G. Litvin, Special Assistant United States Attorney, Department of Justice, Immigration & Naturalization Service, on brief for appellee. D.Mass. AFFIRMED. Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges. Per Curiam. 1 We have reviewed the parties' briefs and the record on appeal. We find no error in the district court's denial of the petition for writ of habeas corpus. The Attorney General has six months from the date of the final administrative order of deportation, or, if judicial review is sought (such as was the case here), six months from the date of final order of this court, to effect deportation. 8 U.S.C. Sec. 1252(c). That period had not expired at the time of Taylor's habeas petition. Indeed, it has not yet commenced to run. 2 Affirmed.	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION FEB 28 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ABUBAKARR SESAY, No. 09-73805 Petitioner, Agency No. A079-281-729 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 21, 2012 ** Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges. Abubakarr Sesay, a native and citizen of Sierra Leone, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008), and we deny in part and dismiss in part the petition for review. Even assuming Sesay is credible, substantial evidence supports the agency’s finding that the government rebutted the presumption that Sesay has a well- founded fear of future persecution with evidence of the end of the civil war and the government’s reassertion of control over the country. See id. (“U.S. Department of State country reports are the most appropriate and perhaps the best resource for information on political situations in foreign nations.”) (internal quotation marks omitted). We lack jurisdiction to address Sesay’s conclusory contention that he is eligible for humanitarian asylum. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not supported by argument are deemed waived). We also lack jurisdiction to address Sesay’s unexhausted contention that there is a pattern or practice of persecution of members of his tribe. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Accordingly, Sesay’s asylum claim fails. Because Sesay failed to meet the lower burden of proof for asylum, it follows he has not met the higher standard for withholding of removal. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1001 n.5 (9th Cir. 2003). 2 09-73805 Finally, the record does not compel the conclusion it is more likely than not that Sesay will be tortured if he returns to Sierra Leone. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009). Accordingly, Sesay’s CAT claim fails. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 09-73805	{ "pile_set_name": "FreeLaw" }
441 Pa. Superior Ct. 296 (1995) 657 A.2d 518 COMMONWEALTH of Pennsylvania v. Robert Eugene AHLBORN, Appellant. Superior Court of Pennsylvania. Submitted January 10, 1995. Decided March 6, 1995. Reargument Denied May 16, 1995. 298 Jack W. Connor, Uniontown, for appellant. Richard E. Bower, Asst. Dist. Atty., Uniontown, for Com. Before CAVANAUGH, CIRILLO and SAYLOR, JJ. CAVANAUGH, Judge: Appellant was convicted by jury trial of burglary, theft by unlawful taking, and theft by receiving stolen property. He was subsequently sentenced to a term of incarceration of 3½ to 7 years, and fined $500. Post trial motions were filed and denied. This appeal from the judgment of sentence follows and requires us to determine whether the court's charge to the jury regarding the Commonwealth's burden of proof in establishing the corpus delicti for the crimes charged constituted reversible error. For the reasons set forth below, we conclude the charge was error, and accordingly, vacate the judgment of sentence and remand for a new trial. On the morning of January 21, 1993, when Michael Sherwood, the victim of the burglary and theft for which appellant was convicted, departed for work at 6:30 A.M., the doors and windows to his home were locked and secured. Later that day, when he returned home from work at 4:15 P.M., he noticed that several screws securing the front window had been removed and that the window was wide open. Mr. Sherwood immediately inspected the residence and discovered that two hunting rifles he kept under his bed were missing. He called the police. That same morning, at approximately 9:00 A.M., the appellant sold the two rifles in question to Brian Fisch for $250. Mr. Fisch, who had never met appellant prior to the transaction, testified that appellant stated that he owned the rifles and was selling them at an admittedly discount price because he needed to raise some money quickly in order to pay a fine 299 and thereby avoid being incarcerated for its non-payment. When Mr. Fisch directly asked appellant whether the rifles were stolen, appellant answered, "No." The rifles were recovered by law enforcement officers and returned to Mr. Sherwood. As part of the investigation of the crime, Pennsylvania State Trooper, Omer Shankle, interviewed appellant. Prior to receiving Miranda warnings, appellant provided trooper Shankle with a statement wherein he confessed to entering the victim's home through the window, stealing the rifles and selling them.[1] Appellant's confession, as well as his statements to Mr. Fisch, were admitted into evidence at trial. It was determined at trial that the victim's wife and appellant's wife are sisters. Further, it was established that on the day prior to the crime, the victim's wife, Mrs. Sherwood, moved out of the family home and took belongings from the home with her. Mr. Sherwood denied that Mrs. Sherwood moved in with appellant and his wife. Mr. Sherwood admitted however, that he did not know whether his wife took the rifles with her when she left. He further testified that it was possible she could have taken the rifles. He also testified that he did not know whether appellant had assisted Mrs. Sherwood in moving out, but later denied harboring any animosity towards appellant for having done so. After the conclusion of closing arguments, appellant's trial counsel requested that the court charge the jury that it could not consider appellant's admissions or confession in its deliberations unless it was satisfied that the Commonwealth had proven the corpus delicti of the crimes charged beyond a reasonable doubt. The court denied appellant's request for charge over his objection of record. In the present appeal, appellant alleges: The trial court erred in failing to instruct the jury, pursuant to request of trial counsel, that they could not consider appellant's extra-judicial statements or admissions until the 300 corpus delicti of the crimes charged were proven beyond a reasonable doubt. We initially note that in reviewing a jury charge for reversible error, the charge must be read and considered as a whole. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). If we conclude that the charge was erroneous, we will grant a new trial unless we determine the error to be harmless. Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978). Whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. Id. at 405-06, 383 A.2d at 162. Finally, the trial court's jury instruction will be upheld if it adequately and accurately reflects the law and is sufficient to guide the jury through its deliberations. Commonwealth v. Early, 377 Pa.Super. 219, 227, 546 A.2d 1236, 1240 (1988), appeal denied 521 Pa. 629, 558 A.2d 531 (1989). Instantly, the court's charge to the jury regarding the Commonwealth's burden of proof for the corpus delicti of the crimes charged was as follows: The Commonwealth, in this case, has introduced a statement which it claims was made by the defendant. Before you may consider this statement as evidence against the defendant, you must find that a crime was, in fact, committed, that the defendant, in fact, made the statement and that the statement was voluntary. Otherwise, you must disregard the statement. Each juror should ultimately decide these questions for himself or herself, and, thereby, individually accept or reject the defendant's statement as evidence. You must not allow the fact that I admitted the statement into evidence to influence you in any way during your deliberations. Our review of the record, including the charge as a whole, as well as the party's briefs and pertinent decisional law persuades us that the aforementioned charge did not adequately and accurately reflect the law of this Commonwealth regarding the application of the corpus delicti rule and was insufficient to guide the jury through its deliberations. Moreover, 301 we conclude that the erroneous charge was not harmless as there existed a reasonable possibility that its presentation to the jury contributed to appellant's conviction. The corpus delicti rule begins with the proposition that a criminal conviction may not be based upon the extra-judicial confession of the accused unless it is corroborated by independent evidence establishing the corpus delicti. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). The corpus delicti, literally "the body of the crime," is defined as a wrong committed by criminal means, and consists of the occurrence of a loss or injury, and some person's criminal conduct as the source of that loss or injury. Id. at 365, 329 A.2d at 274. The criminal responsibility of a particular, identifiable person, e.g. the accused, is not a requirement of the rule. Commonwealth v. Elder, 305 Pa.Super. 49, 51, 451 A.2d 236, 237 (1982). The purpose of the rule is to prevent the use of hasty and unguarded confessions to convict an individual when no crime has been committed. Commonwealth v. Fried, 382 Pa.Super. 156, 160, 555 A.2d 119, 120 (1989), appeal denied 522 Pa. 623, 564 A.2d 915 (1989). Under Pennsylvania law, the application of the corpus delicti rule occurs in two distinct phases. The first phase involves the court's application of a rule of evidence governing the threshold question of the admissibility of the confession. In this first phase of the rule's application, the court must determine whether the Commonwealth has proven the corpus delicti of the crimes charged by a mere preponderance of the evidence. If the court is satisfied that, on the evidence presented, it is more likely than not that a wrong has occurred through criminal agency, then the confession and/or admissions of the defendant are admissible. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978); Commonwealth v. Drexel, 349 Pa.Super. 335, 503 A.2d 27 (1986), appeal denied 514 Pa. 616, 521 A.2d 931 (1987). The second phase of the rule's application occurs after a confession has already been admitted into evidence. After the court has made its initial determination that the Commonwealth 302 has proved the corpus delicti by a preponderance of the evidence and has ruled the confession to be admissible, the corpus delicti rule additionally requires that the Commonwealth prove to the jury's satisfaction beyond a reasonable doubt, the corpus delicti of the crimes charged. Commonwealth v. Lettrich, 346 Pa. 497, 502, 31 A.2d 155, 157 (1943); Commonwealth v. May, 451 Pa. 31, 301 A.2d 368 (1973); Commonwealth v. Tallon, 478 Pa. at 475-76, 387 A.2d at 81; Commonwealth v. Fried, 382 Pa.Super. at 161, 555 A.2d at 121. We note that the dual level of proof the corpus delicti rule requires is not without its critics.[2] We additionally note that other jurisdictions do not require a two-tiered, dual level of proof application of the rule.[3] Nevertheless, the law of Pennsylvania continues to require that the Commonwealth prove the existence of the corpus delicti beyond a reasonable doubt before the jury may consider the defendant's confession. A jury instruction to that effect is, therefore, crucial, since the confession may be admitted into evidence upon a presentation of the corpus delicti by a mere preponderance. In the instant case, the court's charge to the jury regarding the Commonwealth's burden of proof relative to 303 corpus delicti did not go far enough.[4] By merely charging that the jury had to be satisfied that a crime had, in fact, occurred, prior to considering the appellant's confession, the court effectively diluted the Commonwealth's burden of proof. The "in fact" terminology is indefinite and fails to articulate the mandated "beyond a reasonable doubt" standard, which is, of course, explained to the jury in every criminal charge. Accordingly, we find unpersuasive the court's contention that the "in fact" language it included in its charge presented a more stringent burden than the "beyond a reasonable doubt" standard the law requires.[5] Having concluded that the court's charge was reversible error, we need not address appellant's remaining issue, but will briefly do so as it may effect re-trial. We find *304 appellant's assertion that the court improperly admitted the appellant's confession and admissions to be without merit. As heretofore explained, the initial determination by the court regarding whether the Commonwealth has proved the corpus delicti, is judged by a preponderance of the evidence standard. Instantly, evidence was presented showing that the victim's home was secured when he left for work, that upon his arrival home some ten hours later, the front window was wide open and his rifles were missing. Concurrently, the appellant was in possession of the rifles and sold them. This evidence makes it more likely than not that a wrong had been perpetrated through criminal agency, and accordingly, the court's admission into evidence of appellant's confession and admissions was proper. However, due to the erroneous jury charge, we must vacate appellant's judgment of sentence and remand for a new trial. Judgment of sentence vacated. New trial ordered. Jurisdiction relinquished. NOTES [1] The voluntariness of appellant's confession is not at issue in this appeal. [2] The Subcommittee which adopted the Pennsylvania Suggested Standard Jury Instructions, in its note regarding the standard instruction for corpus delicti, criticizes the two-tiered approach. The Subcommittee suggests that the two levels of proof the rule requires potentially confuses a jury. The Subcommittee further suggests that the purpose of the corpus delicti rule to guard against convictions for non-existent crimes would be adequately served by the lesser standard which, it suggests, should be administered solely by the court. Pennsylvania Suggested Standard Jury Instructions (Criminal), Sub-committee Note, 3.02A (rev. 1985). [3] In Virginia, the corpus delicti is an evidentiary question to be determined solely by the court based on a preponderance of the evidence presented. There exists no further review of the evidence's sufficiency by the jury. Watkins v. Commonwealth, 238 Va. 341, 385 S.E.2d 50 (1989). Similarly, in Maine, "it is the exclusive function of the presiding Justice to determine the adequacy of an independent showing of corpus delicti as the pre-condition of the evidentiary admissibility of extra-judicial inculpatory statements of a defendant." State v. Kelley, 308 A.2d 877, 885 (Me.1973) (emphasis in original). [4] The court's charge was a practically verbatim rendering of Pennsylvania Suggested Standard Jury Instruction (Criminal), 3.01, Defendant's Confession or Admission: General Introduction. This charge is intended to be given as an introduction to the actual corpus delicti charge. The court, however, did not include the last sentence of this introductory charge: "I shall now instruct you in more detail about the rules you must follow in dealing with the statement." Pa. SSJI (Crim.) 3.01. Nor did the court then further instruct the jury regarding the Commonwealth's burden of proof relative to corpus delicti. [5] We note that the Pennsylvania standard jury charge on corpus delicti contains the "reasonable doubt" requirement as follows: 1) As I told you, you may not consider the statement as evidence against the defendant unless you find that a crime was committed. In making this preliminary determination you may consider any direct or circumstantial evidence, apart from the statement itself, tending to prove or disprove a crime. This means you must disregard the statement unless you are satisfied beyond a reasonable doubt by the other evidence that an injury or loss occurred and that such injury or loss probably resulted from the commission of the crime of by someone. The other evidence need not tend to show that the crime was committed by the defendant, only that the crime was committed by someone. The other evidence need not rule out all possibility of accident, justification or excuse or other non-criminal means. It is enough if you are satisfied beyond a reasonable doubt that the circumstances are more consistent with the injury or loss having resulted from the crime of than from other means. 2) The object of these rules is to guard against convicting a person of a crime that never really happened even though he confessed to it. Pennsylvania Suggested Standard Jury Instructions (Criminal), 3.02A, Defendant's Confession or Admission: Corpus Delicti, General (rev. 1985).	{ "pile_set_name": "FreeLaw" }
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT ERWIN PRZYCHODNY, Appellant, v. MATTRESS FIRM, INC., Appellee. No. 4D18-622 [October 24, 2019] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE 15-015679. Jeanette Bellon of Bellon Law, P.A., Boca Raton, for appellant. Pamela A. Chamberlin of Mitrani, Rynor, Adamsky & Toland, P.A., Miami Beach, for appellee. PER CURIAM. Affirmed. TAYLOR, MAY and DAMOORGIAN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.	{ "pile_set_name": "FreeLaw" }
972 F.2d 651 James DEMOUCHETTE, Petitioner-Appellant,v.James A. COLLINS, Director, Texas Department of CriminalJustice, Institutional Division, Respondent-Appellee. No. 92-2077. United States Court of Appeals,Fifth Circuit. Sept. 9, 1992.Certiorari Denied Sept. 21, 1992.See 113 S.Ct. 27. Michael B. Charlton, David Cunningham (Court-appointed), Houston, Tex., for petitioner-appellant. William Zapalac, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee. Appeal from the United States District Court for the Southern District of Texas. Before POLITZ, Chief Judge, HIGGINBOTHAM and DUHE, Circuit Judges. POLITZ, Chief Judge: 1 James Demouchette, whose execution has been set by the Texas authorities for September 22, 1992, seeks federal habeas relief and a stay of execution. The district court denied the habeas request, denied a certificate of probable cause and recalled its previously issued stay of execution. In his motions for CPC and for a stay of execution Demouchette urges error under Penry v. Lynaugh.1 Concluding that the disposition of this matter is directed by our recent en banc decision in Graham v. Collins,2 we deny both the motion for CPC and the motion for stay of execution. Background 2 As detailed by the Texas Court of Criminal Appeals,3 Demouchette and his brother Chris entered a Pizza Hut restaurant in Houston, Texas around midnight of October 17, 1976, shortly before closing. Manager Geoffrey Hambrick locked up and the Demouchettes joined Hambrick, Scott Sorrell, the assistant manager and an acquaintance of one of the brothers, and Chuck White, a friend of Sorrell's, at a booth and table. After a few minutes of idle conversation Hambrick, hearing White say, "I'd think twice before I pulled that trigger," turned to see Demouchette shoot White in the head with a large caliber revolver. Demouchette then shot Hambrick. The bullet struck him on the side of the head. Hambrick slumped over and pretended to be dead; he retained consciousness. A third shot rang out and Hambrick heard what he presumed to be Sorrell falling. 3 The Demouchettes ransacked the back room. Returning to the dining room where Sorrell was making gurgling sounds, Demouchette told Chris, "Get the keys." There was another shot and Sorrell's gurgling ceased. The keys were taken from Hambrick and the Demouchettes left. Hambrick called the police. 4 Sorrell died at the scene; White died shortly thereafter. Hambrick recovered from his wounds. The cash register had been emptied and stereo equipment was missing. 5 A jury convicted Demouchette of the capital murder of Sorrell under Texas Penal Code § 19.03(a)(2). During the penalty phase of his trial, Demouchette presented expert testimony that he suffered from antisocial personality disorder, a chronic abnormality marked by impulsivity, an inability to learn from experience, and callousness towards others. Although both mental health experts called by Demouchette testified that his acts of violence resulted from impulse rather than plan, the jury answered the first special issue, whether Demouchette had killed deliberately, in the affirmative and likewise answered the second special issue concerning future dangerousness. In accordance with the Texas statute, the judge sentenced Demouchette to death.4 The Texas Court of Criminal Appeals affirmed the conviction and sentence.5 5] 6 Demouchette invoked 28 U.S.C. § 2254 and sought habeas relief. The state expressly waived exhaustion of collateral state remedies. The district court conducted an evidentiary hearing at which Demouchette's trial attorney testified about mitigating evidence which he decided not to present because of the structure of the Texas death penalty statute. The district court denied relief, denied a certificate of probable cause, and vacated an earlier granted stay of execution. Demouchette timely sought CPC and a stay of execution. Analysis 7 When a district court denies a certificate of probable cause, 8 we lack jurisdiction to decide the appeal unless we first decide to grant one. We may issue a certificate of probable cause only when the petitioner makes a substantial showing of the denial of a federal right. To make a substantial showing, the petitioner must demonstrate that the issues are debatable among jurists of reason.6 9 The issues raised by Demouchette are no longer debatable before this court; they are foreclosed by circuit precedent. 10 Demouchette's principal argument is that the Texas death penalty statute was unconstitutional as applied to him because the jury was unable, without a special instruction, to give full mitigating effect to his evidence of antisocial personality disorder. Invoking Penry, Demouchette contends that his personality disorder had relevance to his moral culpability beyond his propensity to act without deliberation. He further notes that the disorder functioned only as an aggravating factor with respect to the probability of recidivism. Under these circumstances, Demouchette maintains, Penry requires the giving of a special instruction, which was denied in his case. 11 Applying Penry's teachings in Graham, sitting en banc we stated: 12 Penry clearly stands for the proposition that merely because the mitigating evidence has any relevance to a negative answer to one of the special issues does not necessarily suffice in all cases to sustain application of the Texas statute. Penry's evidence has some such relevance to the first issue. The more difficult question is whether the Texas statute can operate as written in any case where the mitigating evidence, though all clearly relevant to support a negative answer to one or more of the issues, nevertheless also has any mitigating relevance whatever beyond the scope of the special issues. Penry can fairly be read as precluding use of the Texas statutory scheme in any such situation. But, Penry can also fairly be read as addressing only a situation where some major mitigating thrust of the evidence is substantially beyond the scope of any of the issues. That, indeed, was the case in Penry, where as to the third issue the mitigating evidence was all essentially irrelevant, as to the second issue it was only affirmatively harmful to the defense, and as to the first issue its favorable relevance was essentially minor but its "major thrust" was beyond the scope of the issue.7 13 In Graham we adopted the latter reading of Penry, holding that a special instruction was required only if a "major mitigating thrust"8 of the evidence was substantially beyond the scope of all the special issues. 14 Here, the jury was able to give mitigating effect to Demouchette's personality disorder evidence in deciding whether he acted deliberately. A "major thrust" of his expert testimony was that an antisocial personality acts on impulse rather than deliberation. Although a reasonable juror might have found that this evidence had independent mitigating value in reducing moral culpability, we cannot say with assurance that a major mitigating thrust of the evidence was substantially beyond the reach of the deliberateness issue. Accordingly, Demouchette's argument that he was entitled to a special jury instruction is foreclosed by Graham. 15 Demouchette further contends that the operation of the Texas death penalty scheme so hampered his trial attorneys in developing a mitigation defense as to deprive him of effective assistance of counsel. To the extent this is a claim of constructive denial of sixth amendment rights, we rejected this argument in May v. Collins,9 explaining that a rule allowing such ineffective assistance claims would be impossible to cabin because tactical decisions concerning the type of evidence to present in sentencing proceedings "are always channelled by the requirements of the statute under which the state proceeds."10 To the extent the argument would fault trial counsel's decision to forego developing mitigating evidence that might also be hurtful, it offers no more than the eighth amendment contention which likewise is foreclosed. 16 For these reasons, the application for a certificate of probable cause and the motion for stay of execution are DENIED. 1 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) 2 950 F.2d 1009 (5th Cir.) (en banc ), cert. granted, --- U.S. ----, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992) 3 Demouchette v. State, 731 S.W.2d 75 (Tex.Cr.App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987) 4 Under Tex.Code Crim.Proc.Ann. Art. 37.071(b) (Vernon 1981), since amended, the jury must answer special issues: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. If the jury unanimously answers "yes" to each issue submitted, the court must sentence the defendant to death; otherwise the sentence is life imprisonment. The third special issue was not relevant and was not submitted 5 Demouchette v. State, supra 6 Cordova v. Collins, 953 F.2d 167, 169 (5th Cir.) (internal quotations and citations omitted), cert. denied, --- U.S. ----, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992) 7 950 F.2d at 1026-27 (emphasis in original) 8 Id., 950 F.2d at 1027 9 948 F.2d 162 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 808 (1992) 10 May, 948 F.2d at 167; see also Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119 L.Ed.2d 600 (1992)	{ "pile_set_name": "FreeLaw" }
Case: 13-30684 Document: 00512449951 Page: 1 Date Filed: 11/21/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-30684 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 21, 2013 OSCAR HILLS, IV, Lyle W. Cayce Clerk Petitioner-Appellant v. WARDEN M. D. CARVAJAL, Respondent-Appellee Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:12-CV-3061 Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Oscar Hills, IV, federal prisoner # 05251-095, appeals the dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. He argues that his remedy under 28 U.S.C. § 2255 for challenging his wire fraud convictions is inadequate and ineffective because this court, after partially granting him a certificate of appealability on an issue raised in his § 2255 motion, remanded his case to the district court instead of addressing his appeal and reversing his convictions. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 13-30684 Document: 00512449951 Page: 2 Date Filed: 11/21/2013 No. 13-30684 He also complains that the district court did not address his claim of actual innocence. Finally, he argues that it was proper for him to raise his claims in a § 2241 petition because he is challenging the fact and duration of his unconstitutional confinement. As a general rule, a federal prisoner who seeks to collaterally challenge the legality of his conviction or sentence must file a § 2255 motion. Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005). Such claims may be raised in a § 2241 petition under the savings clause of § 2255(e) only if the prisoner shows that the § 2255 remedy is “inadequate or ineffective to test the legality of his detention.” § 2255(e). Hills has not made such a showing as he has not established that his claims are based on a retroactively applicable Supreme Court decision establishing that he was convicted of a nonexistent offense. See Padilla, 416 F.3d at 426-27; Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). The district court’s dismissal of Hills’s § 2241 petition is AFFIRMED. Hills’s motion for the appointment of counsel is DENIED. 2	{ "pile_set_name": "FreeLaw" }
679 F.2d 890 U. S.v.Moss 80-5159 UNITED STATES COURT OF APPEALS Fourth Circuit 4/30/82 1 D.S.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
J-A23026-17 & J-A23027-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JOHN J. BIELEC : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMERICAN INTERNATIONAL GROUP, : INC., NATIONAL UNION FIRE : INSURANCE COMPANY OF : No. 336 EDA 2017 PITTSBURGH, P.A., VERIZON : COMMUNICATIONS INC. AND : VERIZON PENNSYLVANIA : : : APPEAL OF: VERIZON : PENNSYLVANIA LLC AND VERIZON : COMMUNICATIONS INC. : Appeal from the Order Entered December 5, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 1440 September Term, 2014 JOHN J. BIELEC : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMERICAN INTERNATIONAL GROUP, : INC. NATIONAL UNION FIRE : INSURANCE COMPANY OF : No. 418 EDA 2017 PITTSBURGH, PA, VERIZON : COMMUNICATIONS, INC. AND : VERIZON PENNSYLVANIA, INC. : : : APPEAL OF: NATIONAL UNION FIRE : INSURANCE COMPANY : OF PITTSBURGH, PA : Appeal from the Order Entered December 5, 2016 J-A23026-17 & J-A23027-17 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 1440 September Term, 2014 BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J.* MEMORANDUM BY DUBOW, J.: FILED DECEMBER 26, 2017 In these consolidated appeals, Appellants, Verizon Pennsylvania LLC and Verizon Communications, Inc., (“Verizon”) and American International Group, Inc. and National Union Fire Insurance Company of Pittsburgh, PA (“National”) (collectively, “Appellants”) appeal from the December 5, 2016 Orders entering summary judgment in favor of Appellee, John J. Bielec, in this Declaratory Judgment action. After careful review, we affirm. The facts and procedural history are as follows. Appellee was an employee of Verizon. On November 21, 2013, during the course of his employment, Appellee was driving a vehicle owned by Verizon. At a traffic light, an automobile struck Appellee’s vehicle. The automobile was insured only for the minimum bodily damage limits allowed under the law. Appellee alleged that he sustained serious injuries and damages in excess of these minimum amounts, and consequently made an underinsured motorist (“UIM”) claim to Verizon’s insurer, National. National denied the claim on the grounds that, in 2013, Verizon had rejected UIM coverage, pursuant to ____________________________________________ * Former Justice specially assigned to the Superior Court. -2- J-A23026-17 & J-A23027-17 Section 1731(c) of the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1731. On September 9, 2014, Appellee commenced the instant Declaratory Judgment action against Verizon and National. On November 5, 2014, Verizon filed an Answer With New Matter to Appellee’s Complaint. On November 11, 2014, National filed an Answer With New Matter and a counterclaim for a Declaratory Judgment. In its counterclaim, National sought a declaration that Verizon had validly rejected UIM coverage. On November 26, 2014, Appellee filed a Reply to New Matter and Counterclaim. On January 15, 2016, Verizon, National, and Appellee filed Motions for Summary Judgment. The trial court scheduled a hearing on the Motions and ordered the parties to file supplemental Briefs addressing the public policy implications of the issues raised in the Motions. Following the hearing, on December 5, 2016, the trial court denied Appellants’ Motions for Summary Judgment, granted Appellee’s Motion for Summary Judgment, and dismissed National’s counterclaim. The court concluded that Verizon’s UIM rejection was defective as a matter of law and that Appellee is entitled to UIM benefits under Verizon’s policy with National. On December 29, 2016, and December 30, 2016, Verizon and National, respectively, filed Motions for Reconsideration and Motions to Stay Proceedings. The trial court denied the Motions on January 3, 2017. -3- J-A23026-17 & J-A23027-17 On January 3, 2017, and January 4, 2017, National and Verizon each filed Notices of Appeal. The trial court did not order Appellants to file Pa.R.A.P. 1925(b) Statements. National raises the following three issues on appeal, which we have reordered for ease of disposition: 1. Does [Appellee] have standing to challenge the validity of the rejection of [UIM] coverage made by his employer, the Named Insured on the insurance policy issued by [National]? 2. Is the rejection of UIM coverage in this case by [Verizon] void or invalid for failure to comply with 75 Pa.C.S. § 1731? 3. Does any Pennsylvania public policy relating to the [MVFRL] require that notice [ ] be given to an employee of an employer’s decision to reject UIM coverage in order for such a rejection of UIM coverage be valid? 4. Does failure by a corporate insured to provide notice to its employee that UIM coverage is being rejected obligate the insurer to provide such coverage notwithstanding the rejection of UIM coverage. National’s Brief at 6. Verizon raises the following two issues on appeal: 1. Is [Appellee] entitled to UIM benefits as a third-party beneficiary of Verizon’s insurance policy because, even though Verizon signed a form that reproduced the MVFRL’s required rejection language verbatim with a clear intention to waive coverage, Verizon signed only on the form’s second page? 2. Is [Appellee] entitled to UIM benefits through Verizon’s insurance policy because, on balance, the MVFRL’s public policy goals require an employer to notify affected employees when it wishes to waive UIM coverage, regardless [of] whether they would have taken action in response to such notice? -4- J-A23026-17 & J-A23027-17 Verizon’s Brief at 5. Standing In its first issue, National claims that Appellee, as a third-party beneficiary of Verizon’s insurance policy, lacks standing to challenge the validity of Verizon’s waiver of UIM coverage. National’s Brief at 19-22.1 It is well-settled that a defendant waives a challenge to the issue of a plaintiff’s standing to sue if he does not raise the challenge at the “earliest possible opportunity.” Kuwait & Gulf Link Transport Co. v. Doe, 92 A.3d 41, 45 (Pa. Super. 2014). Where an objection to standing is concerned, the “earliest possible opportunity” is defined as “in preliminary objections or in [a defendant’s] answer to the complaint.” Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 257 (Pa. Super. 2015). Our review of the pleadings indicates that National failed to challenge Appellee’s capacity to bring this action for benefits under Verizon’s policy before the trial court. In addition, in its Brief, National has not referred to the place in the record where it preserved this issue. See Pa.R.A.P. 2119(c), (e). Thus, we conclude that National has waived this issue.2, 3 ____________________________________________ 1 Verizon also makes this argument in its Brief, but presents it as an alternative argument in support of its overarching claim that the trial court erred in finding its UIM waiver invalid, and not as a separate Question Involved. See Verizon’s Brief at 31-36. 2 Verizon has likewise waived this issue for the reasons set forth, supra. -5- J-A23026-17 & J-A23027-17 The UIM Waiver National’s second issue and Verizon’s first issue are interrelated; thus, we address them together. In these issues, Appellants essentially challenge the trial court’s conclusion that Verizon’s UIM coverage waiver was invalid under the MVFRL. National’s Brief at 22-34; Verizon’s Brief at 20-31. We review orders granting summary judgment under a familiar standard. Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions and affidavits and other materials demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment. Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007) (citations omitted). _______________________ (Footnote Continued) 3 Even if National had not waived this issue, it would not merit relief as Appellee has standing to challenge the validity of Verizon’s UIM coverage waiver in an effort to identify the benefits, if any, he is entitled to under Verizon’s policy. Appellee would not have standing to bring a claim for UIM benefits where no such benefits existed. Here, the question is whether UIM coverage exists. See Petty v. Federated Mut. Ins. Co., 152 A.3d 1020, 1026 n.3 (Pa. Super. 2016) (holding that a third party beneficiary does not have a claim for UIM benefits where an insured has properly rejected UIM coverage); General Acc. Ins. Co. of America v. Parker, 665 A.2d 502, 504 (Pa. Super. 1995) (explaining that the rights of a third party beneficiary are subject to the same limitations as those of a party to the contract). -6- J-A23026-17 & J-A23027-17 When considering an order granting summary judgment in the context of a declaratory judgment action, our scope of review is plenary. Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 895 (Pa. 2006). We will reverse the Order of the trial court only if we find that an error of law or an abuse of discretion has occurred. Id. “The test is not whether we would have reached the same result on the evidence presented, but whether the trial court's conclusion can reasonably be drawn from the evidence.” Nationwide Mut. Ins. Co. v. Cummings, 652 A.2d 1338, 1341 (Pa. Super. 1994). The issues raised by Appellants challenge the trial court’s conclusion that Verizon’s UIM coverage waiver was invalid, which is a pure question of law. Orsag v. Farmers New Century Ins., 15 A.3d 896, 899 (Pa. 2011). Thus, “our standard of review is de novo, and our scope of review is plenary.” Id. Our analysis begins with consideration of the relevant provision of the MVFRL. When construing a statute, we must, whenever possible, give each word meaning. Winslow–Quattlebaum v. Maryland Ins. Group, 752 A.2d 878, 881 (Pa. 2000), quoting 1 Pa.C.S. § 1921(a). Pursuant to the MVFRL, an insured who desires to waive UIM coverage must sign a rejection form. The form must state as follows: -7- J-A23026-17 & J-A23027-17 REJECTION OF UNDERINSURED MOTORIST PROTECTION By signing this waiver I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage. ___________________________ Signature of First Named Insured ___________________________ Date 57 Pa.C.S. § 1731(c). The MVFRL further provides explicit instructions with respect to the execution of the waivers. (c.1) Form of waiver.--Insurers shall print the rejection forms required by subsections (b) and (c) on separate sheets in prominent type and location. The forms must be signed by the first named insured and dated to be valid. The signatures on the forms may be witnessed by an insurance agent or broker. Any rejection form that does not specifically comply with this section is void. If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits. On policies in which either uninsured or underinsured coverage has been rejected, the policy renewals must contain notice in prominent type that the policy does not provide protection against damages caused by uninsured or underinsured motorists. Any person who executes a waiver under subsection (b) or (c) shall be precluded from claiming liability of any person based upon inadequate information. 75 Pa.C.S. § 1731(c.1) (emphasis added). -8- J-A23026-17 & J-A23027-17 As noted above, the waiver of UIM coverage is effectuated by specific compliance with the mandates of Section 1731(c.1). Pennsylvania courts interpreting this statute have concluded that de minimis or hyper-technical defects in a UIM coverage waiver will not serve to defeat an otherwise valid rejection of UIM benefits. See, e.g., Ford v. Am. States Ins. Co., 154 A.3d 237, 245 (Pa. 2017) (holding that “when a UIM rejection form differs from the statutory form in an inconsequential manner, the form will be construed to specifically comply with Section 1731[.]”); Petty v. Federated Mut. Ins. Co., 152 A.3d 1020 (Pa. Super. 2016) (affirming the trial court’s finding that “the differences cited by [a]ppellants are hyper-technical and do not cause confusion or result in an uninformed waiver.”). However, as noted by this Court in Jones v. Unitrin Auto & Home Ins. Co., 40 A.3d 125 (Pa. Super. 2012), Section 1731(c) “prescribes the proximal relationship between the required language and the required signature and date lines following the language.” Id. at 131 (emphasis omitted). The proximity of the signature line to the text of the waiver is, thus, significant. In Jones, this Court concluded that the rejection of UIM benefits was invalid because the insurer’s UIM rejection form “interpose[d] a sentence, not directly related to [the] rejection of UIM coverage, between the required language and the signature line.” Id. Thus, the location of the execution line is not “de minimis” and the requirement of a signature thereon is not “hypertechnical.” -9- J-A23026-17 & J-A23027-17 Here, the form tracked verbatim the language of the statute. The UIM rejection paragraph at issue in Verizon’s policy on page 1, entitled “Rejection of Underinsured Motorist Protection,” included the required signature and date lines. Verizon UIM Waiver Form, dated 4/26/13. In addition, National had inserted a “tick-box” next to the rejection paragraph on page 1, a feature not required by statute. On the same page, the form had two additional sets of paragraphs, signature and date lines, and “tick-boxes,” entitled “Selection of Limits” and “Underinsured Coverage Limits.” Although Verizon’s authorized representative placed a mark in the “tick-box” next to the paragraph entitled “Rejection of Underinsured Motorist Protection,” she did not sign or date on the lines immediately following the rejection paragraph as required by statute. Instead, on page 2 of the coverage form, she signed after the following untitled paragraph: I understand the protection afforded by Underinsured Motorist Coverage and the selection(s) I have made on this Notice regarding Underinsured Motorist Coverage. I further understand and agree that my selection(s) will apply to this policy and all future transfers, substitutions, amendments, alterations, modifications, reinstatements or replacements of this policy, and all future renewals of this policy, unless I make a written request to change my selection(s) and such request is received and approved by the Company. All other terms, conditions, and exclusions of the policy remain unchanged. _____________ ______________________________ Effective Date Authorized Signature of Named Insured - 10 - J-A23026-17 & J-A23027-17 _____________ _______________________________ Date Signed Name and Title Although Verizon’s authorized representative signed and dated on each line immediately following the untitled paragraph indicating she had made “selection(s),” she failed to sign on the line immediately following as required by case law and statute to indicate explicit waiver of coverage. Such omission created an ambiguity. As a result, Verizon did not validly waive UIM coverage. National argues that the UIM rejection form signed by Verizon specifically complied with the MVFRL because: (1) it contained the required statutory language; (2) Verizon, the named insured, signed the form; (3) any deviations from the prescribed statutory language were de minimis; (4) the text of the form did not modify coverage or inject ambiguity into the statutory form; and (5) the subjective intent of the contracting parties was clear. National’s Brief at 22-34. Verizon set forth variations on the same arguments: (1) that the language of the UIM form signed by Verizon matches verbatim the language of Section 1731(c); (2) that the court erred in concluding that the location of Verizon’s representative’s signature has legal significance; (3) that, in keeping with its longstanding practice, Verizon intended to waive UIM coverage; and (4) that there is no reason to invalidate the UIM rejection and impose strict liability on National where Verizon, and not National, failed to observe a statutory technicality. Verizon’s Brief at 20-31. - 11 - J-A23026-17 & J-A23027-17 We are not convinced by Appellants’ bald assertion that Verizon’s placement of an “X” in the “tick-box” next to the UIM coverage waiver paragraph on National’s form, together with the signature on page 2 of the form, were sufficient to effectuate Verizon’s waiver. Appellants have not supported this argument by citing to any authority. The mandatory form described in Section 1731(c.1) does not include a “tick-box” or any similar method for indicating an intent to waive coverage. Rather, the express terms of Section 1731(c) and (c.1) emphasize the importance of the proximal relationship between the waiver language and the insured’s signature, indicating an explicit requirement that the insured must sign on the line directly below the waiver paragraph in order to effectuate a valid rejection of UIM coverage. Accordingly, we agree with the trial court that by failing to sign on the line below the UIM waiver option paragraph, Verizon failed to select the waiver of UIM coverage as it purportedly intended. Thus, the trial court did not err in granting summary judgment in favor of Appellee.4 Order affirmed. Jurisdiction relinquished. Judge Panella joins the memorandum. ____________________________________________ 4 In light of our disposition, we decline to address the public policy issues raised by the trial court’s summary conclusion that “an employer who fails to notify its employee driver that UIM coverage has been rejected is acting against public policy.” Trial Ct. Op. at 13. - 12 - J-A23026-17 & J-A23027-17 Judge Fitzgerald files a dissenting statement. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/26/2017 - 13 -	{ "pile_set_name": "FreeLaw" }
930 F.2d 905 Narragansett Indian Tribev.Maynard (Kenneth L.) NO. 90-1847 United States Court of Appeals,First Circuit. JAN 15, 1991 1 Appeal From: D.R.I. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
422 F.Supp. 1027 (1976) William Louise THOMAS v. Edward H. LEVI, Attorney General of the United States, et al. Civ. A. No. 76-2929. United States District Court, E. D. Philadelphia. November 15, 1976. 1028 Paul Yermish, Philadelphia, Pa., for plaintiff. Alexander Ewing, Jr., Asst. U. S. Atty., Philadelphia, Pa., for defendants. OPINION DITTER, District Judge. This petition for a writ of habeas corpus presents a question involving the construction 1029 of the Federal Extradition Act[1] and the Interstate Agreement on Detainers Act.[2] For the reasons which follow, I conclude that the relief petitioner seeks must be denied. William Louise Thomas is a federal prisoner whose temporary custody for the purpose of disposing of outstanding criminal charges is sought by the State of New Jersey. Thomas was indicted by a federal grand jury in this district for narcotics violations. After her arrest on the federal charges, Thomas surrendered[3] to state authorities in Philadelphia pursuant to a warrant based on a New Jersey indictment growing out of the same narcotics transactions which triggered the federal charges. She refused to waive extradition to New Jersey. A hearing pursuant to Pennsylvania's version of the Uniform Extradition Act,[4] 19 P.S. § 191.1 et seq., was scheduled for November 13, 1975, before a Philadelphia Municipal Court judge, but was continued when the Commonwealth of Pennsylvania and the State of New Jersey failed to produce documents required under that Act. Thereafter the hearing was rescheduled and then continued on two additional occasions when the state authorities failed to produce the necessary material. Finally, on January 12, 1976, Thomas was discharged from custody by Municipal Court Judge Joseph P. Braig because the state authorities still had not filed the documents required by the Uniform Act. On February 17, 1976, the Honorable Daniel H. Huyett, III, of this court sentenced petitioner to a three year term of imprisonment on the federal indictment[5] and she was committed to the Federal Reformatory for Women at Alderson, West Virginia. Shortly after Thomas' arrival at Alderson, New Jersey lodged a detainer with the authorities there based on the same charges which had been the subject of the earlier, unsuccessful Uniform Act proceedings. The transmittal letter accompanying the detainer asked whether petitioner would "waive rendition back to the State of New Jersey on Inter-State Agreements of Detainers," advising that if not, New Jersey would extradite. However, when Thomas refused to waive extradition, New Jersey sought temporary custody pursuant to Article IV(a) of the Interstate Agreement.[6] In order to prevent her imminent 1030 transfer to New Jersey, plaintiff sought and obtained a restraining order from the Honorable John B. Hannum of this court. That suit was later dismissed without prejudice pursuant to a stipulation under the terms of which petitioner was to be afforded a hearing before the Regional Director of the Bureau of Prisons to contest the legality of her delivery to New Jersey authorities. The evidence presented at the hearing consisted of a copy of the New Jersey indictment together with a request for temporary custody properly approved as required by Article IV(a) of the Interstate Agreement, plus virtually uncontradicted testimony establishing that petitioner was in fact the person named in the indictment.[7] Thomas offered no evidence, but relied on the legal argument that the absence of a warrant issued by the Governor of New Jersey precluded her transfer to that state.[8] Following the hearing, the Regional Director of the Bureau of Prisons issued a decision granting New Jersey's request for temporary custody pursuant to the Interstate Agreement. In response to the contention of counsel, the Regional Director concluded that "the absence of a `governor's warrant' does not appear to preclude delivery of William Louise Thomas to the State of New Jersey under the Interstate Agreement on Detainers."[9] Not satisfied with the Regional Director's decision, Thomas instituted the present habeas corpus action. Petitioner contends that the absence of a governor's warrant from New Jersey would allow her to resist extradition successfully under the Extradition Act, and therefore that she may not be turned over to that state pursuant to the Interstate Agreement unless a governor's warrant is first obtained. In other words, it is petitioner's position that all the rights and defenses to extradition existing under the Extradition Act are to be incorporated into the Interstate Agreement. Petitioner draws support for this proposition from several sources. First, she argues that the Interstate Agreement was designed to expand, not contract, the rights of prisoners subject to detainers, see United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975), and asserts that construing the Interstate Agreement so as to dispense with rights existing under the Extradition Act would be inconsistent with this objective. Although the Interstate Agreement does not designate what, if any, substantive grounds may be used to contest 1031 a prisoner's delivery[10] nor the procedure to be followed in making such a challenge, Thomas points to Article IV(d) which provides: Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof . . .[11] In petitioner's view, this provision indicates that the Interstate Agreement left her rights under the Extradition Act intact. Finally, Thomas supports her position by a comparison of the terms used in Article III of the Interstate Agreement, which governs prisoner-initiated disposition requests, with those used in Article IV, which governs requests initiated by a state. Article III(e) says: Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein . . .. (emphasis added). No similar language is found in Article IV. Petitioner contends the absence of such terms in Article IV shows that where the state is the one initiating the request for custody, it must meet the requirements of the Extradition Act. Putting to one side for the moment the Interstate Agreement, I note that petitioner is correct in arguing that in an Extradition Act proceeding the absence of a governor's warrant from the demanding state would allow the person sought to block extradition. Section 3182 provides, inter alia, that the demand of a state seeking extradition of a fugitive must be "certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled." And as judicially construed, the Extradition Act allows one held for extradition to seek review by way of a habeas corpus petition, see Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121 (1907), in which one of the questions that may be raised is ". . . that the extradition papers are not in order, or are without proper authentication by the demanding state's executive authority." R. Sokol, Federal Habeas Corpus § 4.2C, at 47 (2d ed. 1969), quoting Note, Extradition, Habeas Corpus, supra, 74 Yale L.J. at 91; Appleyard v. Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161, 163 (1906); Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544, 549 (1885); United States ex rel. Grano v. Anderson, supra, 446 F.2d at 279 (Van Dusen J., dissenting).[12] But, as will be seen below, the absence of a governor's warrant affords Thomas no basis for relief under the circumstances present here. Central to Thomas' legal argument in this case is the assumption that in the absence 1032 of the Interstate Agreement, the Extradition Act and the constitutional provision which it implements would govern the transfer of a person from federal to state custody. From this assumption, petitioner then advances the arguments discussed above as reasons why the rights conferred by the Extradition Act have not been overridden by the Interstate Agreement. Unfortunately for the petitioner, the underlying assumption that the Extradition Act is applicable to the transfer of an individual from federal to state custody is faulty.[13] The Extradition Act was originally passed in 1793 to implement Article IV, Section 2, Clause 2 of the Constitution which in turn applies only to the extradition of fugitives among the several states.[14] Although the Extradition Act[15] extends the right to extradite to territories[16] and the obligation to deliver up fugitives to territories[17] and district,[18] it says nothing about persons subject to the custody of the federal government. More importantly, an examination of the purpose and nature of the extradition obligation reveals its inapplicability to the transfer of custody from the federal government to a state. In Appleyard v. Massachusetts, supra, the Court explained the nature of this obligation in the following terms: The constitutional provision relating to fugitives from justice, as the history of its adoption will show, is in the nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several states, an object of the first concern to the people of the entire country, and which each state is bound, in fidelity to the Constitution, to recognize. A faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states. And while a state should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial authorities of the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state. (Emphasis added.) 203 U.S. at 227, 27 S.Ct. at 124, 51 L.Ed. at 163; see Kentucky v. Dennison, 65 U.S. (24 1033 How.) 66, 16 L.Ed. 717 (1861).[19] And in Biddinger v. Commissioner of Police, 245 U.S. 128, 133, 38 S.Ct. 41, 43, 62 L.Ed. 193 (1917), the Court stated that the constitutional and statutory provisions were not to be "construed narrowly and technically . . . as if they were penal laws, but liberally to effect their important purpose," which was to eliminate, for this purpose, the boundaries of states, so that each may reach out and bring to speedy trial offenders against its laws from any part of the land. Id. at 132-33, 38 S.Ct. at 42, 62 L.Ed. 193. This historical objective of extradition to prevent the territorial boundaries of a state's sovereignty from frustrating its efforts to bring to justice those who violate its laws obviously has no application to the dual or "vertical" territorial sovereignty which characterizes the federal-state relationship. Cf. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Furthermore, to apply the Extradition Act to the federal government would be to impose on it an obligation to deliver up a person within its exclusive jurisdiction on the demand of a state. This is an obligation from which the federal government has long been immune by virtue of the Supremacy Clause. See Ponzi v. Fessenden, 258 U.S. 254, 261, 42 S.Ct. 309, 311, 66 L.Ed. 607 (1922); Tarble's Case, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597 (1871); Ableman v. Booth, 62 U.S. (21 How.) 506, 16 L.Ed. 169 (1858); United States ex rel. Fort v. Meiszner, 319 F.Supp. 693, 695 (N.D.Ill. 1970); Quillar v. United States, 272 F.Supp. 55, 56 (W.D.Mo.1967). To be sure, the United States may waive its immunity from state process and consent to have prisoners in its custody turned over to a state. Ponzi v. Fessenden, supra; Little v. Swenson, 282 F.Supp. 333, 336 (W.D.Mo.1968); Quillar v. United States, supra.[20] It has in fact expressly done so by adopting the Interstate Agreement. Esola, supra, 520 F.2d at 835 and n. 17. But in the absence of an express indication that Congress intended the Extradition Act to operate as such a waiver, it would be inappropriate to apply its terms to the federal government. For these reasons, I conclude that the Extradition Act does not apply to a person in the custody of the federal government. That being the case, the Extradition Act gives petitioner no "right to contest the *1034 legality of his delivery" to the State of New Jersey which could be preserved by Article IV(d) of the Interstate Agreement. Whether or not, wholly apart from the Extradition Act, a federal prisoner might have some due process right to a hearing prior to transfer to state authorities under the Interstate Agreement and, if so, the grounds upon which he might contest the transfer are questions that are not presently before me. Whatever requirements the due process clause might impose on such transfers, they were satisfied in this case by the hearing afforded petitioner before the Regional Director of the Bureau of Prisons at which it was clearly established that the requirements of the Interstate Agreement had been satisfied, that an indictment had been returned in New Jersey and that, petitioner was the individual named in the indictment. Petitioner was represented by counsel at the hearing, was confronted with and given the opportunity to cross examine the witnesses against her, and was afforded a detailed statement of the Regional Director's findings and conclusions. The due process clause surely entitled her to nothing more. Cf. Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).[21] NOTES [1] 18 U.S.C. § 3182. [2] 18 U.S.C. App. p. 207 (1976 Supp.). [3] Presumably, Thomas was released on bail on the federal charges. [4] The Uniform Extradition Act, which has been adopted by 47 states is not to be confused with the Federal Extradition Act, 18 U.S.C. § 3182, which is at issue here. Hereinafter the Uniform Extradition Act will be referred to as the "Uniform Act" and the Federal Extradition Act simply as the "Extradition Act." The need for state legislation such as the Uniform Act results from the fact that while the federal statute imposes a minimum standard for extradition, it does not create machinery to deal with all the exigencies which arise in this area. The Uniform Act fills this void by providing such machinery to the states on a uniform basis. Among the matters covered by the Uniform Act are the method of applying for state habeas corpus relief, the method of arrest and detention of a fugitive before extradition is demanded, the method of applying for a requisition and the extent of asylum allowed a prisoner when brought back to the demanding state. The Uniform Act also expands on the federal statute by providing for the extradition of persons who might not technically be classified as "fugitives" either because they were never physically present in the demanding state or because they left the demanding state under legal compulsion. See Commissioner's Prefatory Note to Uniform Criminal Extradition Act, 11 U.L.A. Crim.L. & Proc. at 53-54 (Master ed. 1974). [5] The record in this case does not reveal whether Thomas' conviction resulted from a court or jury trial or a plea of guilty. [6] The purpose of the Interstate Agreement, which has been enacted by the United States and 38 states, is to provide for the orderly transfer of prisoners from one jurisdiction to another to dispose expeditiously of outstanding detainers that might otherwise interfere with rehabilitative efforts. See Article I of the Interstate Agreement. The Interstate Agreement's major innovation was to give a prisoner the right to demand the speedy disposition of detainers. Cf. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). The Interstate Agreement also contains a provision for state-initiated prisoner transfers to dispose of outstanding detainers (Article IV). As between the states, this latter provision is of less significance, since the Uniform Act allowed such transfers at the discretion of the sending state's governor and the Interstate Agreement seems to preserve this discretion by authorizing the governor of the sending state to disapprove the request for temporary custody. Compare 19 P.S. § 191.19 and Com. ex rel. Accobacco v. Burke, 162 Pa.Super. 592, 597, 60 A.2d 426 (1948) with Article IV(a) of the Interstate Agreement. [7] Thomas' counsel made some minor effort through cross examination to contradict the testimony that Thomas had actually been in New Jersey during the period charged in the indictment, apparently on the theory that under the Extradition Act she could not be extradited unless she was physically present in New Jersey during the time in question. See Hyatt v. New York, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (1903). In view of the fact that a prima facie showing was made that petitioner was present in New Jersey during the relevant period, I need not decide whether this limitation would be applicable to transfers under the Interstate Agreement. But see People of State of New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959); United States ex rel. Grano v. Anderson, 446 F.2d 272, 278 (3d Cir. 1971) (Van Dusen, J., dissenting); Huddleston v. Costa, 314 F.Supp. 278, 280-81 (W.D.Pa.1970); Cooper v. McDermott, 399 Pa. 160, 159 A.2d 486 (1960). [8] At the hearing and in his brief to this court, petitioner's counsel also asserted that New Jersey was precluded from obtaining custody of Thomas by reason of its failure to produce the necessary documents in the Uniform Act proceedings before Judge Braig. However, at oral argument in this case, counsel conceded that Judge Braig's discharge of petitioner would not prevent New Jersey from reinstituting extradition proceedings against her. See Bassing v. Cady, 208 U.S. 386, 28 S.Ct. 392, 52 L.Ed. 540 (1908); Commonwealth ex rel. Douglass v. Aytch, 225 Pa.Super. 195, 310 A.2d 313 (1973); Note, Extradition Habeas Corpus, 74 Yale L.J. 78, 131 (1964). [9] Notice of Decision, In Re William Louise Thomas, Production Under the Interstate Agreement on Detainers, September 7, 1976. [10] The Interstate Agreement does state that the failure of the executive authority of the sending state affirmatively to consent to or order the prisoner's delivery is not a basis for challenging the delivery. See note 11 infra. [11] This section goes on to state, "but such delivery may not be opposed or denied on the ground that the executive authority of the sending State has not affirmatively consented to or ordered such delivery." (Emphasis added.) Thomas also contends that the failure to include the executive authority of the demanding state within this provision, supports her position that the lack of a warrant signed by the governor of the demanding state is a basis to resist delivery under the Interstate Agreement. [12] The other issues that may be raised in an extradition habeas corpus petition are: . . . . . (2) that the charge, whether by indictment, or affidavit, is inadequate to support extradition, or is insubstantial; (3) that the petitioner is not the person named in the extradition papers; (4) that the petitioner is not a fugitive from the demanding state's justice because he was not within the demanding state at the time of the alleged offense. Sokol, supra; United States ex rel. Tyler v. Henderson, 453 F.2d 790, 793 (5th Cir. 1971); United States ex rel. Vitiello v. Flood, 374 F.2d 554, 556 (2d Cir. 1967); Smith v. State of Idaho, 373 F.2d 149, 155 (9th Cir.), cert. denied, 388 U.S. 919, 87 S.Ct. 2139, 18 L.Ed.2d 1364 (1967). See also United States ex rel. Grano v. Anderson, supra; Kirkland v. Preston, 128 U.S. App.D.C. 148, 385 F.2d 670 (1967). [13] What little authority there is supports exactly the opposite conclusion. 35 C.J.S. Extradition § 2 at 383 states, "No question of extradition is involved where a prisoner in the custody of the United States government is turned over to a state for prosecution." As authority for this statement C.J.S. cites Gaines v. State, 95 Tex.Cr.R. 368, 251 S.W. 245, cert. dismissed, 263 U.S. 728, 44 S.Ct. 132, 68 L.Ed. 528 (1923). In that case the defendant was indicted by the federal government for post office robbery and by the State of Texas for murder committed during the course of the robbery. He was arrested in Indiana and brought back to Texas by federal authorities and was later turned over to Texas authorities. To his claim that "having been brought to Texas to undergo trial for the federal offense, he was not amenable to trial in the state court in the absence of extradition proceedings," the court responded: the matter in hand, however, is not one of extradition. The United States government found the appellant, who is charged with an offense against its laws, within its jurisdiction and brought him to Texas for trial. The federal authorities were under no obligation to surrender him to the state; but, having done so, he is not in a position to complain. 251 S.W. at 247; cf. United States v. Guy, 456 F.2d 1157, 1160 (8th Cir. 1972). [14] Article IV, Section 2, Clause 2 provides: A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. (Emphasis added.) [15] Act of February 12, 1793, 1 Stat. 302, as amended, 18 U.S.C. § 3182. [16] New York ex rel. Kopel v. Bingham, 211 U.S. 468, 29 S.Ct. 190, 53 L.Ed. 286 (1908). [17] Ex parte Reggel, 114 U.S. 642, 5 S.Ct. 1148, 29 L.Ed. 250 (1885). [18] The "word `District' was inserted . . . to make [the statute] equally applicable to fugitives found in the District of Columbia." Revisor's Notes to 18 U.S.C. § 3182; see Kirkland v. Preston, supra 385 F.2d at 673 n. 5. [19] See also Johnson v. Buie, 312 F.Supp. 1349, 1351 (W.D.Mo.1970) (extradition provision of the Constitution is primarily for the protection of states, not protection of fugitives); United States ex rel. Grano v. Anderson, 318 F.Supp. 263, 269 (D.Del.1970) aff'd 446 F.2d 272 (3d Cir. 1971) (per curiam) (states may not impose more exacting standards on extradition than the federal statute requires); id. at 278 (Van Dusen, J., dissenting) (purpose of Extradition Act is to assure speedy rendition of fugitives under conditions set forth therein and "neither it nor article four of the Constitution confers any federal right on a fugitive not to be extradited pursuant to a state statute permitting extradition under less exacting conditions than those set forth in federal statute"). [20] See also 18 U.S.C. § 4085 which provides: (a) Whenever any federal prisoner has been indicted, informed against, or convicted of a felony in a court of record of any State or the District of Columbia, the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor or the executive authority thereof, and upon the presentation of a certified copy of such indictment, information or judgment of conviction, cause such person, prior to his release, to be transferred to a penal or correctional institution within such State or District. If more than one such request is presented in respect to any prisoner, the Attorney General shall determine which request should receive preference. The expense of personnel and transportation incurred shall be chargeable to the appropriation for the "Support of United States prisoners." (b) This section shall not limit the authority of the Attorney General to transfer prisoners pursuant to other provisions of law. June 25, 1948, c. 645, 62 Stat. 850. (Emphasis added.) If 18 U.S.C. § 3182 were applicable to a person in federal custody there would have been little need for a statute allowing the Attorney General at his discretion to turn over federal prisoners to state authorities. [21] It should be noted that a number of cases have held that a prisoner has no right to object to his transfer from federal to state custody to face outstanding state charges, Ponzi v. Fessenden, supra; Konigsberg v. Ciccone, 285 F.Supp. 585, 601-02 (W.D.Mo.1968), aff'd, 417 F.2d 161 (8th Cir. 1969) cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L.Ed.2d 255 (1970); Little v. Swenson, supra, 282 F.Supp. at 336-37; Troyan v. United States, 240 F.Supp. 383, 384 (D.Kan.1964), but these cases were decided before the expansion of prisoners due process rights hailed by Morrissey and its progeny.	{ "pile_set_name": "FreeLaw" }
417 B.R. 320 (2008) Beverly BYRD, et al., Plaintiffs, v. James M. HOFFMAN, et al., Defendants. Civil Action No. AW-07-1730. United States District Court, D. Maryland, Southern Division. March 31, 2008. 323 Ralph Tyrone Byrd, Ralph T. Byrd Attorney at Law, Laytonsville, MD, for Plaintiffs. James Martin Hoffman, Goren, Wolff & Orenstein, LLC, Rockville, MD, for Defendants. MEMORANDUM OPINION ALEXANDER WILLIAMS, JR., District Judge. This appeal arises from the May 24, 2007[1] Amended Order of Thomas Catliota, United States Bankruptcy Court for the District of Maryland (the "Bankruptcy Court"), Granting in Part Trustee's Emergency Motion for Relief from the Automatic Stay, Enjoining Respondents and Declaring Complaint Void in Part, and the June 7, 2007 Order Denying Reconsideration. The appeal has been fully briefed, and no hearing is deemed necessary. See Local Rule 105.6 (D.Md.2008). For the reasons explained fully below, the Court AFFIRMS the Amended Order and Rulings of the Bankruptcy Court. FACTUAL AND PROCEDURAL BACKGROUND Appellants Beverly Byrd and Ralph Byrd ("Appellants") are not unknown to this Court, having repeatedly filed eight appeals to the District Court and four appeals to the Fourth Circuit related to their bankruptcy matter.[2] The following facts are those pertinent to this appeal. On December 14, 2001, an involuntary petition for Chapter 7 bankruptcy was filed against Appellants in the United States Bankruptcy Court for the District of Maryland. On June 25, 2004, the matter was converted to a Chapter 11 bankruptcy at Appellants' request. On March 23, 2007, the bankruptcy Trustee filed a Motion for Order Authorizing Trustee to Enter into Sales Agreement and Approving Sale of Certain Real Property Free and Clear of All Liens, Claims, Interests, and Encumbrances ("Sale Motion") to get approval from the Bankruptcy Court to sell some of Appellants' property that formed part of the bankruptcy estate ("Property"). Appellants filed an opposition, and the Bankruptcy Court scheduled a hearing on the Sale Motion ("Sale Hearing") 324 for April 23, 2007. At the Sale Hearing, the court approved the sale over Appellants' general objections and entered an Order approving the sale free and clear of all liens, .claims, interests, and encumbrances ("Sale Order") on April 25, 2007.[3] On the same day as the Sale Hearing, Appellants filed a complaint against the bankruptcy Trustee and other Defendants[4] in the Circuit Court for Montgomery County, alleging abuse of process and civil conspiracy and seeking the imposition of a constructive trust against the Property as a remedy, with the rights, title, and interest in the property to be conveyed to Appellants. Appellants apparently filed this complaint in response to the Trustee's correspondence with the Maryland Attorney Grievance Commission ("the Commission"). According to Appellant, the Trustee sent certain documents relating to the administration of the estate, which were provided by Appellant, to the Commission and expressed his suspicions surrounding the documents' authenticity. As to the constructive trust claim, Appellants alleged in their state court complaint that the Trustee was preparing to sell the Property below market value in an effort to destroy Appellant Ralph Byrd's law practice. At the Sale Hearing, Appellants neither disclosed the filing of the state court complaint to the Bankruptcy Court nor objected to the sale of the Property free of their alleged constructive trust claim. On May 7, 2007, the Trustee filed an Emergency Motion for Relief Due to Violations of the Automatic Stay ("Emergency Motion") in the Bankruptcy Court, seeking an injunction and sanctions against Appellants for violating the automatic stay and the Barton Doctrine by filing suit against the Trustee in state court. Appellants filed an opposition to the Emergency Motion, disputing that they violated the automatic stay or the Barton Doctrine and contended that their state court constructive trust claim survives the Sale Order. On May 18, 2007, the Bankruptcy Court granted the Trustee's motion and ordered the Appellants enjoined from: (1) filing and pursuing any state or federal court action seeking any interest in the Property; (2) taking any action whatsoever to encumber the Property; (3) taking any action to hinder or prevent the sale of the Property; and. (4) taking any action against the Trustee or the Trustee's counsel without first seeking leave of the bankruptcy court. The court also voided the state court complaint and expressly ordered that the sale of the Property continue free and clear of any constructive trust or other claims asserted by Appellants.[5] 325 On June 4, 2007, Appellants filed a Motion to Reconsider, which the Bankruptcy Court denied on June 7, 2007, finding no grounds for reconsideration. Appellants filed the instant appeal to this Court on July 17, 2007. STANDARD OF REVIEW This Court reviews the legal conclusions of the Bankruptcy Court de novo, but reviews its factual determinations for clear error. Butler v. Shaw, 72 F.3d 437, 441 (4th Cir.1996); Three Flint Hill Ltd. Pshp. v. Prudential Ins. Co. (In re Three Flint Hill Ltd. Pshp.), 213 B.R. 292, 297 (D.Md.1997). On legal issues, this Court "must make an independent determination of the applicable law." In re Jeffrey Bigelow Design Group, Inc., 127 B.R. 580, 582 (D.Md.1991), aff'd 956 F.2d 479 (4th Cir. 1992). Moreover, a finding of fact is clearly erroneous "only when the reviewing court is left with the definite and firm conviction that a mistake has been committed." In re Broyles, 55 F.3d 980, 983 (4th Cir.1995) (internal quotations omitted). Finally, the Bankruptcy Court's application of law to the facts is to be reviewed for abuse of discretion. In re Robbins, 964 F.2d 342, 345 (4th Cir.1992) (decision to lift automatic stay). ANALYSIS I. Appellants raise five issues on appeal. They first contend that they did not violate the automatic stay because they merely filed the state court complaint but never served the complaint on the Trustee. The Court rejects outright Appellants' argument on this point, as Appellants' offer no case support for the proposition that there exists a legal distinction between filing and service of a complaint for the purposes of an automatic stay violation. According to the bankruptcy statute, the filing of a bankruptcy petition operates as a stay, applicable to all entities, of "(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate...." 11 U.S.C. § 362(a)(3) (emphasis added). Initiating a lawsuit seeking a constructive trust against the property of a bankruptcy estate, as Appellants did here, qualifies as an "act" in violation of the automatic stay. See Amedisys, Inc. v. Nat'l Century Fin. Enters. (In re Nat'l Century Fin. Enters.), 423 F.3d 567 (6th Cir.2005). The Bankruptcy Court below relied on Amedisys in finding that the state court complaint violated the automatic stay, and, as a result of the violation, the Bankruptcy Court voided the state court complaint. In Amedisys, the Sixth Circuit affirmed the bankruptcy court's enforcement of the automatic stay against the creditor, which sought in a state court action to recover funds from the bankruptcy estate on a constructive trust theory. 423 F.3d at 573-75. The court affirmed the district court's conclusion that the creditor's constructive trust theory operated as an assertion of dominion over the estate funds, which formed part of the estate property. Id. at 575. There is little distinction between the creditor's actions in Amedisys and Appellants' actions here. Here, as in Amedisys, Appellants initiated a lawsuit in state court seeking the transfer of title of the Property on a constructive trust theory. It is clear to the Court that Appellants were attempting to assert dominion and control over the Property. Specifically, in the state court complaint, Appellants sought an order for the Trustee "to convey all of his right, title, and interest in the property... to [Appellants] free from all liens, mortgages and other encumbrances...." 326 See State Court Complaint at 16. Here, as in Amedisys, the Property undoubtedly forms part of the bankruptcy estate and any act to assert dominion over the property runs counter to the automatic stay. Given Appellants' actions in filing suit with the purpose of gaining control over the Property, and given that Appellants attempt to split hairs on the distinction between the "filing" and "serving" of a complaint without offering any support for their contention that violating the automatic stay necessitated serving the complaint on the Trustee, the Court finds no clear error in the Bankruptcy Court's conclusion that Appellants violated the automatic stay. Furthermore, the Court finds that there was no abuse of discretion, in the Bankruptcy Court voiding the state court complaint as a result of Appellants' violation of the automatic stay. II. Appellants next contend that the Bankruptcy Court incorrectly concluded that they violated the automatic stay and Barton Doctrine because Appellants' state court complaint was filed as a defensive measure in response to a possible state court action by the Commission to seek disciplinary action against Appellant Ralph Byrd. As previously discussed, Appellants violated the automatic stay merely by filing suit in state court for the purpose of gaining control of the Property, and therefore the Court rejects this argument as it relates to the automatic stay. If the Court followed Appellants' reasoning, it would, essentially, render meaningless the purposes of the automatic stay provision: keeping matters related to the property of the bankruptcy estate in the exclusive jurisdiction of the Bankruptcy Court. The Barton Doctrine, so named after the United States Supreme Court case Barton v. Barbour, states that "leave of the appointing forum must be obtained by any party wishing to initiate an action in a non-appointing forum against a trustee for acts done in a trustee's official capacity." In re Silver Oak Homes, Ltd., 167 B.R. 389, 394 (Bankr.D.Md.1994); see also In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993) (citing Barton v. Barbour, 104 U.S. 126, 127, 26 L.Ed. 672 (1881) ("before suit is brought against a receiver, leave of the court by which he was appointed must be obtained")). The Barton Doctrine applies to lawsuits against bankruptcy trustees, such that any party seeking to file suit against a trustee related to the trustee's administration of the estate must first seek permission of the bankruptcy court. Muratore v. Darr, 375 F.3d 140, 146 (1st Cir.2004).[6] In Muratore, the First Circuit affirmed the district court's dismissal of a bankruptcy debtor's lawsuit against the estate's trustee, which the debtor filed without seeking leave of the bankruptcy court. 375 F.3d at 143. The court found that the Barton Doctrine applied because the allegations against the trustee in the debtor's lawsuit, namely the trustee's failure to pay taxes and failure to file corporate returns, referred to the failure to perform the very acts the trustee was responsible for performing in his position as a Chapter 11 bankruptcy trustee. Id. at 145. The First Circuit's decision in Muratore supports a similar conclusion here. The Bankruptcy Court found that the Trustee's actions, to which Appellants' suit was allegedly responsive, were done in the course of administering the bankruptcy estate 327 and maintaining the bankruptcy case. See Memorandum of Decision at 17. Appellants' second amended state court complaint alleges only that the Bar Counsel of the Commission filed a complaint against Appellant Ralph Byrd based on its communications with, and documents received from, the Trustee. See State Court Complaint, ¶ 61. Appellants further allege that the Trustee communicated with the Commission in order to raise suspicions about the truthfulness of documents filed by Appellants per an order of the Bankruptcy Court. See Appellants' Brief at 18. Although the record does not indicate that the Trustee's administrative duties compelled him to communicate his suspicions to the Commission, there does seem to exist a nexus between the Trustee's actions and his duties as estate administrator because the effective administration of the estate would presumably depend, in part, on the authenticity of the documents.[7] As such, this Court finds no clear error in the Bankruptcy Court's finding that Trustees actions were done in the course of administering the estate as the Court is not "left with the definite and firm conviction that a mistake has been committed." In re Broyles, 55 F.3d at 983. Therefore, the Bankruptcy Court did not commit clear error when it concluded that Appellants violated the Barton Doctrine by failing to seek leave before filing suit against the bankruptcy Trustee. Even if the Bankruptcy Court had improperly applied the Barton Doctrine here. Appellants fail to provide any cases supporting their contention that filing a state court suit against a bankruptcy Trustee in response to correspondence between the Trustee and the Commission places their actions beyond the reach of the automatic stay or Barton Doctrine. Appellants' reliance on Fox & Co. v. Saxon Industries (In re Saxon Indus., Inc.), 43 B.R. 64 (Bankr. S.D.N.Y.1984), fails in this regard because the facts and issues in that case are completely inapplicable to the facts and issues here. Saxon involved a group of accountants that filed an adversary proceeding in bankruptcy court seeking to lift the automatic stay in order to counterclaim against the debtor, who had brought suit against the accountants in federal court. In re Saxon, 43 B.R. at 65. The bankruptcy court lifted the automatic stay, finding that it would be inequitable to allow the debtor to use the automatic stay provision to prevent the accountants from counterclaiming. Id. at 67. Here, unlike in Saxon, Appellants' suit against the Trustee was not a counterclaim to a pending suit by the Trustee. Moreover, Saxon, involved a party that sought to lift the automatic stay before filing a counterclaim, whereas Appellants here initiated the suit without first seeking permission from the Bankruptcy Court to lift the automatic stay or stay the application of the Barton Doctrine. Likewise, Appellants' reliance on In re Briarwood Hills Associates, L.P., 237 B.R. 479 (Bankr.W.D.Mo.1999), fails. In that case, an estate trustee sought to hold a creditor in contempt for violating the automatic stay after the creditor counterclaimed against the trustee in the trustee's contribution claim against the creditor in bankruptcy court. In re Briarwood, 237 B.R. at 479-80. The bankruptcy court found that the automatic stay does not apply to proceedings in the bankruptcy court where the court has jurisdiction over the parties. Id. at 480. Moreover, the creditor's counterclaim in that case directly related to the allegations made against 328 the creditor by the trustee, and courts have held that filing counterclaims in response to claims filed against a party by the trustee and which are related to the allegations made by the trustee does not violate the automatic stay. Id. at 480. Appellants here did not file their complaint in the Bankruptcy Court, nor was their suit responsive to a suit filed by the Trustee. Finally, Appellants' reliance on In re Filby, 225 B.R. 532 (Bankr.D.N.H.1998), likewise, fails. In that case, the bankruptcy court found that a creditor was not in violation of the automatic stay where its actions were responsive to orders by the state court in ongoing state court proceedings initiated before the debtor filed for bankruptcy. In re Filby, 225 B.R. at 535. Here, Appellants' actions were not ordered by any court nor were they required by any state court action initiated by the Trustee. Furthermore, the Court is unconvinced that Appellants' actions in filing suit against the Trustee was the appropriate "response" to the Trustee's communications with the Commission. The Commission's proceedings are not conducted ex parte, and they allow parties to adequately respond and defend themselves to any allegations made against them. Appellant Ralph Byrd could have opposed the allegations against him in that more appropriate forum, which he ultimately did, rather than unnecessarily filing a separate lawsuit in state court. Given Appellants' failure to seek leave from the Bankruptcy Court before filing suit against the bankruptcy Trustee and given that Appellants have failed to provide any support for their contention that their "responsive" suit places them outside of the reach of the automatic stay or Barton Doctrine, the Court finds that the Bankruptcy Court did not commit clear error by concluding that Appellants violated the automatic stay and Barton Doctrine by filing suit against the Trustee in state court. III. Appellants next argue that the success of their state court constructive trust claim was contingent on the state court's decision on their underlying abuse of process and civil conspiracy claims, and therefore their constructive trust claim was akin to a lis pendensliterally, "pending lawsuit"the filing of Which does not violate the automatic stay. In Maryland, the doctrine of lis pendens serves to give notice to all parties seeking to acquire property that such property is the subject of ongoing litigation and that the acquirer takes the property subject to the results of the litigation. Greenpoint Mortgage Funding, Inc. v. Schlossberg, 390 Md. 211, 223, 888 A.2d 297, 304 (2005). "[T]he doctrine derives from the jurisdiction and control which a court acquires over property involved in an action pending its continuance and until final judgment is entered." Id. Even if the Court were to assume that Appellants' constructive trust claim was akin to a lis pendens, which Appellants assert without support, Appellants' reliance on Savers Federal Savings and Loan Ass'n v. McCarthy Construction Co. (In re Knightsbridge), 884 F.2d 145 (4th Cir. 1989), fails to support their contention that any lis pendens here does not violate the automatic stay. In Knightsbridge, a creditor filed a lis pendens and then later amended the lis pendens after the debtor filed for bankruptcy. In re Knightsbridge, 884 F.2d at 146. The Fourth Circuit held that an amendment to a lis pendens filing made after the debtor filed for bankruptcy did not violate the automatic stay where the original lis pendens filing was made before the bankruptcy petition was filed. In re Knightsbridge, 884 F.2d at 147. Indeed, 329 seemingly in support of Appellants' contention here, the court found that the existence of an original or amended lis pendens does not violate the automatic stay provision, as it "is not within the eight [prohibited] categories of activity [as] proscribed by § 362(a)", but rather serves simply to "notice a distinct proceeding, without operating to satisfy or secure the claim that inspired it." Id. at 147-48. However, the underlying distinct proceeding in that case involved ongoing state court activity initiated before the debtor filed its bankruptcy petition, namely the imposition of a mechanic's lien against certain of the debtor's property that subsequent to the petition became part of the bankruptcy estate. Id. at 146. Here, Appellants' asserted lis pendens notices a state court proceeding that both the Bankruptcy Court and now this Court have found was initiated in violation of the automatic stay provision, since it sought to assert dominion over property of the estate in violation of 11 U.S.C. § 362(a)(3). By extension, any lis pendens that may exist to notice that proceeding also violates the automatic stay. This Court, therefore, finds that the Bankruptcy Court did not err in concluding that Appellants violated the automatic stay by filing a state court suit that included a constructive trust claim. IV. Appellants next make four arguments to support their contention that their constructive trust claim survives the Sale Order. Appellants first argue that the Bankruptcy Court incorrectly found that Appellants waived their constructive trust objection to the sale of the Property because under Maryland Rules 12-102(b),[8] Appellants gave adequate notice to the Bankruptcy Court of their constructive trust claim. Appellants' next three arguments rely on 11 U.S.C. § 363(f) to support their contention that their constructive trust claim survives the Sale Order. Section 363(f) states in relevant part: (f) The trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if (1) applicable nonbankruptcy law permits sale of such property free and clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of interest. 11 U.S.C. § 363(f). First, Appellants contend that § 363(f)(1) applies to the sale here and that the doctrine of lis pendens does not permit the sale of the property free and clear of Appellants' constructive trust claim. Second, Appellants argue that § 363(f)(2) allows their claim to survive because Appellants, an "entity" with an "interest" in the property, did not consent to the sale of the Property at the Sale Hearing. Third, Appellants argue that § 363(f)(4) allows their claim to survive the Sale Order because the lis pendens that resulted from their filing the state court complaint is not in bona fide dispute. 330 Crucial to Appellants' success in each of their arguments on this point is whether the doctrine of lis pendens even applies here. Maryland Rule 12-102(a) provides that the constructive notice rule "applies to an action filed in a circuit court... that affects title to ... real property located in this State" and that such an action is one to which the doctrine of lis pendens applies. See Md.Code. Ann., Maryland Rules § 12-102(a) and (b) (2008). As previously noted, "the doctrine [of lis pendens] derives from the jurisdiction and control which a court acquires over property involved in an action pending its continuance and until final judgment is entered." Greenpoint, 390 Md. at 223, 888 A.2d at 304. In this ongoing bankruptcy proceeding, the Bankruptcy Court retains exclusive jurisdiction, to the exclusion of other courts, over the Property that was the subject of Appellants' constructive trust claim. See 28 U.S.C. § 1334(e). Therefore, the Circuit Court in which Appellants filed their constructive trust claim against property subject to the Bankruptcy Court's exclusive jurisdiction could not acquire or exercise jurisdiction over the Property and could not make a ruling "affecting title to" the Property. Thus, the doctrine of lis pendens, and by extension Rule 12-102(b), does not apply here either to give constructive notice to the Bankruptcy Court of Appellants' constructive trust claim or as "applicable nonbankruptcy law" that prohibits the sale of the Property free and clear of Appellants' constructive trust claim. Moreover, because of the Bankruptcy Court's exclusive jurisdiction over the Property, Appellants could not gain relief based on their constructive trust claim in the Circuit Court for Montgomery County. Therefore, Appellants' state court constructive trust claim is invalid. The invalid nature of Appellants' constructive trust claim serves to dispense with Appellants' remaining arguments in support of survival of that claim. Without a valid constructive trust claim, Appellants cannot, as they contend, be considered an "entity with an interest in the Property" within the meaning of the statute, such that the Trustee needed to obtain their consent under § 363(f)(2) before selling the Property free and clear of all interests. Similarly, § 363(f)(4) is inapplicable because Appellants never had a legitimate interest that could be in bona fide dispute. Even without the Court's independent grounds for reaching the conclusion that Appellants' constructive trust claim did not survive the Sale Order, this Court finds that the Bankruptcy Court did not commit clear error when it found that Appellants waived their constructive trust objection by failing to raise the objection at the Sale Hearing. The Fourth Circuit, in First Union, Commercial Corp. v. Nelson, Mullins, Riley and Scarborough (In re Varat Enters., Inc.), 81 F.3d 1310 (4th Cir.1996), held that a party in interest waived its objection to the debtor's reorganization plan when it failed to raise the objection prior to or at the confirmation hearing, despite the party's ability to raise the objection at the hearing. In re Varat, 81 F.3d at 1317. Similarly, Appellants certainly could have raised their constructive trust objection at the Sale Hearing because Appellants knew of the objection prior to, when it was planning to file suit in state court, and at the sale hearing. As such, the Bankruptcy Court correctly found that Appellants waived their constructive trust objection. Accordingly, this Court finds that the Bankruptcy Court did not abuse its discretion when it ordered the sale of the Property to continue free and clear of Appellants' constructive trust claim. 331 V. Finally, Appellants contend that the Bankruptcy Court erred by failing to conduct a hearing on its Motion for Reconsideration before finding that Appellants' "surreptitiously" filed their state court complaint, which was evidence of their bad faith. Appellants seem to suggest that the Bankruptcy Court improperly based its decision to deny the motion to reconsider on its finding that Appellants surreptitiously filed the complaint and acted in bad faith.[9] Pursuant to Fed.R.Civ.P. 59(e), a Court can alter or amend a judgment in limited circumstances, namely (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice. Pacific Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). Rule 59(e) motions should not be used to raise arguments which could have been raised prior to the issuance of the judgment, nor should they be used to argue a case under a new legal theory that the party could have addressed in the first instance. Id; see also Royal Ins. Co. of Am. v. Miles & Stockbridge, P. C., 142 F.Supp.2d 676, 677-78 n. 1 (D.Md.2001). Lastly, a "reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." Id. (internal citations omitted). In reviewing Appellants' Motion for Reconsideration and the facts in support of it, the Court finds that the Bankruptcy Court was not in error by denying the motion or in declining to conduct a hearing or taking evidence. First, it is within the discretion of the Bankruptcy Judge whether a hearing on a motion is warranted, as motions can be decided on the pleadings and the memoranda filed by the parties. See B.R. Local Rule, 9013-1(b)(4) (2007). Second, the Bankruptcy Court denied Appellants' motion because it found "no valid grounds stated for reconsideration" since it had previously addressed Appellants' contention that their constructive trust claim survived the Sale Order. Since Appellants have not shown a change in the controlling law, accounted for unavailable evidence, or corrected a clear error of law, the Court finds that the Bankruptcy Court did not abuse its discretion in denying Appellants' Motion for Reconsideration. Moreover, the Court notes that the Bankruptcy Court made a reasonable inference as to the bad faith nature of Appellants' actions. Regardless of the ultimate validity of their constructive trust claim, Appellants never disclosed their claim to the Bankruptcy Court at the Sale Hearing despite knowing that such a claim would be pertinent to the issues discussed at the hearing and could potentially disrupt or delay the sale of the Property. Such actions, in the eyes of this Court appear to have significant "trappings" of bad faith.[10] CONCLUSION Given Appellants' failure to succeed on any points they raise in this appeal, this 332 Court AFFIRMS in full the decision of the Bankruptcy Court. An Order consistent with this Memorandum Opinion will follow. NOTES [1] The Memorandum of Decision was issued on May 18, 2007. [2] Appellants have filed the following District Court appeals: 02-CV-02675JFM; 03-CV-00600PJM; 04-CV-03312JFM; 05-CV-02389AW; 06-CV-00895AW; 06-CV-02704AW; 07-CV-00328AW; and 07-CV-01421AW. Appellants have filed the following appeals to the Fourth Circuit: 06-2042; 07-1126; 07-1138; and 07-1336. [3] The Bankruptcy Court, in approving the sale, found that "the Trustee had properly exercised his business judgment in approving the sale; the sale of the Property as proposed was fair and reasonable; and the sale was being proposed for a sound purpose and in good faith." See Record Entry No. 573, Memorandum of Decision at 8. [4] The other Defendants named in Appellants' Amended State Court Complaint included two former trustees of the bankruptcy estate; two law firms that represent consumer debt collection companies and several partners and associates of those firms; one law firm that represents creditors and U.S. bankruptcy trustees, and a partner of that firm; an Assistant Bar Counsel and investigator for the Attorney Grievance Commission of Maryland; and the persons who purchased the Property from the bankruptcy trustee. [5] The Court issued its ruling in a Memorandum of Decision and Order on May 18, 2004. The Court subsequently issued an Amended Order on May 24, 2007, which is identical to the previous Order, except that it additionally enjoins Appellants from filing suit or maintaining any action against the Trustee's counsel, James M. Hoffman, and his law firm. This is also the Order from which Appellants' appeal is taken. [6] The Bankruptcy Court noted that although the Fourth Circuit has not adopted the Barton Doctrine in a published opinion, it has done so in an unpublished opinion. See Gordon v. Nick, 162 F.3d 1155 (Table), 1998 WL 559734, *2 (4th Cir.1998). [7] In addition, the Court notes that members of the Bar, which includes Appellant Ralph Byrd, are required to maintain the highest levels of professionalism and candor with their fellow attorneys. Deceptive practices by attorneys are not to be tolerated. [8] Md.Code Ann., Rules § 12-102(b) states, "m an action to which the doctrine of lis pendens applies, the filing of the complaint is constructive notice of the lis pendens as to real property in the county in which the complaint is filed." [9] Although not titled as such, the Court will consider Appellants' Motion to Reconsider as a one under Fed.R.Civ.P. 59(e), Motion to Alter or Amend a Judgment, and analyze it as such. [10] This Court notes, as has been stated before in earlier decision, that Appellants have filed a barrage of pleadings in this bankruptcy matter, and the statements and inferences drawn by the Bankruptcy Court throughout these appeals suggest that Appellants' efforts have been designed to frustrate the judicial process.	{ "pile_set_name": "FreeLaw" }
861 F.2d 266Unpublished 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.Tyrone HURT, Defendant-Appellant. No. 88-7682. United States Court of Appeals, Fourth Circuit. Submitted Aug. 26, 1988.Decided Sept. 22, 1988. Tyrone Hurt, appellant pro se. Before WIDENER, SPROUSE, and WILKINS, Circuit Judges. PER CURIAM: 1 Tyrone Hurt, incarcerated in the District of Columbia under a judgment of conviction had in a District of Columbia court, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241 in the United States District Court for the Eastern District of Virginia seeking to vacate his conviction. The district court summarily dismissed the petition for lack of jurisdiction. The court concluded that it lacked jurisdiction over both the petitioner and the subject matter of his petition. We affirm. 2 Generally a petition for a writ of habeas corpus should be filed in the district court of the district where the petitioner is in custody. 28 U.S.C. Sec. 2241(a). Hurt is incarcerated in the District of Columbia, not in the Eastern District of Virginia. Moreover, a federal district court lacks jurisdiction to consider a petition for habeas corpus relief challenging a District of Columbia conviction unless the District of Columbia post-conviction procedure is inadequate or ineffective. See Swain v. Pressley, 430 U.S. 372 (1977). 3 Accordingly, because the dispositive issues recently have been authoritatively decided we dispense with oral argument and affirm the judgment of the district court. 4 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
767 F.Supp. 144 (1991) Ronald E. YAGEMAN, Plaintiff, v. VISTA MARIA, SISTERS OF THE GOOD SHEPHERD, a non-profit corporation, Defendant. No. 90-72680-DT. United States District Court, E.D. Michigan, S.D. May 2, 1991. John P. Ogurek, Birmingham, Mich., for plaintiff. Sheila A. Kinney, Grand Rapids, Mich., for defendant. OPINION DUGGAN, District Judge. This action was originally filed in Wayne County Circuit Court. Defendant removed this case to this Court contending that the Employee Retirement Income Security Act of 1974 ("ERISA"), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq., preempts plaintiff's employment claims against defendant. Since removal, defendant has filed a motion to dismiss and for summary judgment with regard to plaintiff's claims. Plaintiff has filed a response to this motion. Defendant's motion and plaintiff's responses thereto have caused this Court to carefully examine plaintiff's claims. A review of plaintiff's complaint convinces this Court that it does not have subject matter jurisdiction. Therefore, a remand of this matter to the Wayne County Circuit Court is required under the terms of 28 U.S.C. § 1447(c).[1] Defendant, in its notice of removal, refers specifically to paragraphs 13(F), 18(C), 18(G), and 18(H) of plaintiff's complaint. In defendant's view, the claims set forth in the cited paragraphs, assert an ERISA claim, thus providing this Court with jurisdiction, via preemption, over plaintiff's complaint. *145 The Court disagrees with defendant's contention that plaintiff's complaint sets forth an ERISA claim. A fair reading of plaintiff's complaint reveals that he is suing defendant for age and sex discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act.[2] (Complaint at Paragraphs 15, 16, 17, 18(A), 19). Plaintiff's complaint does not assert a cause of action against plaintiff for denial of ERISA-covered employee benefits. Defendant correctly points out that, in his complaint, plaintiff alleges that defendant took various actions against him which resulted in a denial of benefits.[3] This Court concludes, however, that such allegations relate only to the damages plaintiff has suffered as a result of defendant's alleged discrimination against plaintiff. Indeed, when the four paragraphs cited by defendant in support of its claim of ERISA preemption are viewed in the context of plaintiff's entire complaint, it is evident that such paragraphs allege only that the damages suffered by plaintiff as a result of the discriminatory conduct of defendant include a loss of benefits. While admittedly there is language in plaintiff's complaint that defendant, by its discriminatory acts, intended to deny him benefits, the real gravamen of plaintiff's complaint is that he was discharged as a result of age and sex discrimination. The fact that the damages that plaintiff allegedly suffered as a result of defendant's wrongful conduct included a loss of ERISA benefits does not convert plaintiff's claim into a claim under ERISA. In this case, plaintiff's complaint seeks damages "in excess of $500,000," including a loss of salary, damages for "emotional and mental trauma," expenses of "professional medical care and treatment of plaintiff," as well as for loss of benefits. (See Plaintiff's Complaint at pp. 9-10). "`[N]o ERISA cause of action lies ... when the loss of pension benefits was a mere consequence of, but not a motivating factor behind the termination [or loss] of benefits.'" Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir.1988) (quoting Rose v. Intelogic Trace, Inc., 652 F.Supp. 1328, 1330 (W.D.Tex.1987)).[4] In this Court's opinion, plaintiff's claims are "too tenuous, remote or peripheral" to warrant a finding that they "relate to and thus are preempted by ERISA." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100, n. 21, 103 S.Ct. 2890, 2901, n. 21, 77 L.Ed.2d 490 (1983). This Court concludes that no federal subject matter jurisdiction exists with regard to plaintiff's claims against defendant. Plaintiff's complaint does not contain a claim preempted by ERISA. Rather, plaintiff's complaint contains only claims based upon state law. Accordingly, under 28 U.S.C. § 1447(c), this Court must remand this matter back to state court. An order consistent with this Opinion shall be prepared by the parties and submitted to this Court for entry. NOTES [1] The removal statute at § 1447(c) provides, in relevant part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c) (emphasis added). [2] See Mich.Comp.Laws Ann. § 37.2102 et seq. [3] For purposes of this opinion the Court will assume that all "benefits" that plaintiff refers to in his complaint are ERISA-covered benefits. [4] See also Stuart v. Ross Roy, Inc., 703 F.Supp. 42 (E.D.Mich.1988) (no ERISA preemption of state law claims where complaint's allegations of denial of benefits relates only the consequences of an employer's actions); Schlenz v. United Airlines, Inc., 678 F.Supp. 230, 235 (N.D. Cal.1988) (ERISA does not preempt claims for damages based on lost opportunity to earn employee benefits).	{ "pile_set_name": "FreeLaw" }
629 F.Supp. 398 (1986) Lorraine JACKSON, Plaintiff, v. Margaret HECKLER, Secretary of the Department of Health & Human Services, Defendant. No. 84 Civ. 8981 (RWS). United States District Court, S.D. New York. February 21, 1986. 399 400 The Legal Aid Soc., New York City, for plaintiff; Douglass J. Seidman, Bebe J. Anderson, of counsel. Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City, for defendant; Rosemarie E. Matera, Sp. Asst. U.S. Atty., Annette H. Blum, Reg. Atty.Region II, Tomasina Digrigoli, Asst. Reg. Atty., Office of Gen. Counsel, Dept. of Health and Human Services, of counsel. SWEET, District Judge. Plaintiff Lorraine Jackson ("Jackson") brings this motion for an award of attorney's fees pursuant to the Equal Access to Justice Act, (hereinafter "EAJA"), 28 401 U.S.C. § 2412 awarding reasonable fees and costs to her counsel in this action. For the reasons set forth below, Jackson's motion is granted. Facts Jackson is a mentally disabled person who has been receiving Social Security disability benefits since approximately 1974. According to the Social Security Administration, (the "SSA") Jackson received an overpayment of Social Security benefits from January 1974 to September, 1975. While Jackson attempted to repay these overpayments for approximately one year, she requested a waiver of this repayment in December, 1983, informing the SSA that she could not afford the monthly deductions from her benefits and that the strain associated with the existence of the debt was aggravating her mental condition. In April, 1984, defendant Margaret Heckler, Secretary of Health and Human Services (the "Secretary") reduced Jackson's installment payments from $40.00 per month to $25.00 per month in response to Jackson's expressed difficulty in repaying the additional benefits. However, the Secretary denied Jackson's request for a waiver of such overpayments. A waiver of repayment of erroneously distributed benefits may be granted if the recipient shows that (1) he was without fault in connection with the overpayment, and (2) recovery would defeat the purpose of the SSI program, be inequitable, or impede efficient or effective administration of Title XVI due to the small amount involved. Harrison v. Heckler, 746 F.2d 480, 482 (9th Cir.1984); 42 U.S.C.A. § 1383(b)(1); 20 C.F.R. § 416.550. Jackson appeared pro se before an Administrative Law Judge ("ALJ") on June 24, 1984 and submitted a medical report from her treating psychiatrist which stated that she could not be accountable for the overpayment and that the pressure caused by the deductions from her benefits and concern over the debt was harming her mental condition. Jackson provided documentation of her living expenses and debts, and stated that she believed the SSA was sending her the correct amount of benefits at the time of the overpayment. Relying on the report of Jackson's treating psychiatrist, the ALJ found that she was without fault in accepting the overpayment, but declined to waive repayment because it would not defeat the purpose of Title XVI of the Act, be against equity and good conscience, or impede the efficient or effective administration of Title XVI. Valente v. Secretary of Health and Human Services, 733 F.2d 1037, 1042 (2d Cir.1984). Jackson, still without representation of counsel, requested a review of the ALJ's decision by the Appeals Council of the SSA, and submitted additional documentation of her expenses to refute some of the ALJ's contentions to support the application for review. By letter of October 31, 1984, Jackson's request for Appeals Council review was denied, rendering the ALJ's decision final. Jackson then obtained the assistance of counsel and filed this action on December 14, 1984, seeking a reversal, or in the alternative a remand of the denial of an overpayment waiver. On January 17, 1985, Jackson's counsel agreed to extend the Secretary's time to answer or move with respect to the complaint until April 19, 1985. The Secretary's answer denied Jackson's allegations that the decision was not supported by substantial evidence, was based on erroneous legal standards and that Jackson was denied a fair hearing. The Secretary also asserted that Jackson had not shown good cause for a remand. On June 20, 1985 counsel for both parties had a telephone discussion regarding the submission of motion papers, wherein counsel for the Secretary informed Jackson's counsel that she had not yet determined what posture she would take in the litigation but that she would determine her approach after reading the papers being drafted to support Jackson's motion for judgment on the pleadings filed July 22, 1985. Approximately three months later the parties filed a consent order, signed by this court on October 23, 1985, remanding this case to the Secretary "for the sole purpose of the Secretary issuing a decision 402 waiving the overpayment at issue in this action." Jackson then filed her motion for attorney's fees on November 27, 1985. Discussion Jackson bases her request for reasonable attorney's fees and costs on two provisions of the EAJA. Section 2412(b), the "bad faith" section, provides that a court may award attorney's fees, expenses and costs to the prevailing party in an action brought against an agency or official of the United States if the defendant acted in "bad faith, vexatiously, wantonly, or for oppressive reasons." 28 U.S.C. 2412(b). Alternatively, Jackson seeks attorney's fees under section 2412(d) of the EAJA because the Secretary cannot demonstrate that her position in the litigation was "substantially justified." 28 U.S.C. § 2412(d)(1)(A). Section 2412(b) 28 U.S.C. Section 2412(b) provides that the United States shall be liable for attorney's fees to the same extent as any other party would be liable under common law or statute: (b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. In the Second Circuit, this EAJA exception to the general rule against the awarding of attorney's fees is made when the losing party's claims are "entirely without color" and have been asserted "wantonly for purposes of harassment or delay or for other improper reasons." Browning Debenture Holders' Committee v. DASA Corp., 560 F.2d 1078, 1088 (2d Cir.1977). While actions leading to the lawsuit as well as conduct during litigation can establish the bad faith of the losing party, Lauritzen v. Lehman, 736 F.2d 550, 559 (9th Cir. 1984), an award of fees under this section is a punitive measure and can be imposed "only in exceptional cases and for dominating reasons of justice." United States v. Standard Oil Co. of California, 603 F.2d 100, 103 (9th Cir.1979); Cordeco Development Co. v. Vasquez, 539 F.2d 256, 263 (1st Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). Jackson contends that the Secretary acted in bad faith at both the administrative and judicial levels of this controversy. According to Jackson, the ALJ failed to develop scrupulously and conscientiously the record by ignoring relevant evidence, misstating the contents of other evidence and making conclusory assumptions about the claimant's expenses. Jackson also asserts that the Appeals Council ignored the applicable law and regulations by failing to review the ALJ's decision in light of the new evidence submitted by Jackson. Finally, the Secretary's pretrial defense of an administrative record rife with error, according to Jackson, was an extension of administrative-level bad faith into the courthouse. However, the administrative record and the prior proceedings before this court do not warrant a finding of bad faith. While Jackson contests the validity of the ALJ's application of the relevant statutes and evaluation of the evidence before him, there is no indication that the ALJ's conclusions were undertaken vexatiously or to harass Jackson in the exercise of her rights. The record reveals that the SSA was responsive to Jackson's difficulties in meeting the repayment schedule and reduced her monthly deductions from $40.00 to $25.00. Even if we assume that the ALJ's weighing of the evidence in light of the applicable regulations was erroneous, the record shows that the ALJ was responsive to Jackson's documentary psychiatric evidence. As the ALJ's conclusions on the second prong of the overpayment waiver test are inherently discretionary, Valente v. Secretary of Health 403 and Human Services, supra, 733 F.2d at 1041, the denial of the waiver is not evidence of bad faith absent an indication of improper motive. Jackson claims that the Appeals Councils' denial of review of the ALJ's conclusions despite her submission of new evidence further demonstrates the Secretary's bad faith. The applicable regulations governing Appeals Council review provide: (a) The Appeals Council will review a case if (1) There appears to be an abuse of discretion by the administrative law judge; (2) There is an error or law; [or] (3) The actions, findings or conclusions of the administrative law judge are not supported by substantial evidence; ... (b) If new and material evidence is submitted with the request for review, the Appeals Council shall evaluate the entire record. It will then review the case if it finds that the administrative law judge's action, findings or conclusion is contrary to the weight of the evidence currently in the record. 20 C.F.R. Section 416.1470(b). The award of attorney's fees and costs under the "bad faith" exception is a punitive measure and is not the equivalent of the failure to adhere to applicable standards of review. A party charging bad faith for the purpose of collecting fees must show that the Secretary acted with oppressive or improper reasons in denying the claimant's application. Browning Debenture Holders' Committee v. DASA Corp., supra, 560 F.2d at 1088. Further, the Secretary's pretrial defense of the record below is not vexatious or harassing. Jackson contends that the situation at bar is analagous to Velazquez v. Heckler, 610 F.Supp. 328 (S.D.N.Y.1984) where this court found bad faith and awarded attorney's fees pursuant to 28 U.S.C. § 2412(b) based on the Secretary's failure to consent to a remand despite the existence of an adverse decision in a federal class action, which supported the plaintiff's claim that the Secretary had erroneously terminated his disability benefits. However, in the case at bar Jackson has offered no evidence to demonstrate that she is a member of a class action challenging overpayment notices on constitutional grounds,[1] and the Secretary voluntarily consented to a remand in this case for the purpose of waiving the repayment of benefits. Although the Secretary's evaluation of the merits of her position in the litigation might have been more expeditious and more realistic, the Secretary's reevaluation of the administrative record in light of Jackson's motion for judgment on the pleadings was not a demonstration of a bad faith litigation posture. See, e.g. Lipsig v. National Student Marketing Corp., 663 F.2d 178, 181 (D.C.Cir.1980) (a party is not to be penalized for maintaining an aggressive litigation posture nor are good faith assertions of colorable claims to be discouraged, but advocacy simply for the sake of burdening an opponent with unnecessary time and effort warrants recompense). Section 2412(d) Section 2412(d) of the EAJA permits the victorious litigant in an action against the United States to recover reasonable costs and attorney's fees if the government cannot demonstrate that its position in the litigation was "substantially justified." In relevant part, the statute provides: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) including proceedings for judicial review of agency action, brought 404 by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances made an award unjust. . . . . . Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. . . . . . "[P]osition of the United States" means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based ... 28 U.S.C. § 2412(d)(1)(A), (d)(1)(B), (d)(1)(D), as amended by Pub.L. No. 99-80, Section 2, 54 U.S.L.W. 1 (Aug. 5, 1985). Under this provision, the government must carry the burden of demonstrating that its position was substantially justified and must make a "strong showing" to meet that burden. Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir.1983). In evaluating the question of whether the government's position was substantially justified under 28 U.S.C. § 2412(d), only the litigation position is relevant and not the position taken by the agency itself with respect to the controversy. Dubose v. Pierce, 761 F.2d 913, 917 (2d Cir.1985); Boudin v. Thomas, 732 F.2d 1107, 1115 (2d Cir.), reh. denied, 737 F.2d 261 (1984). The analysis applied to the government's litigation posture is "essentially one of reasonableness." Wheat v. Heckler, 763 F.2d 1025, 1028-29 (8th Cir. 1985); Callejo v. Heckler, 613 F.Supp. 1229, 1231 (S.D.N.Y.1985). However, it may well be that something more than reasonableness may be required in view of the rejection by the Senate Judiciary Committee of an amendment which would have changed the language from "substantially justified" to "reasonably justified". See Velazquez v. Hecker, supra, 610 F.Supp. at 330. While there is no showing that SSA intended to harass Jackson in a bad faith denial of an overpayment waiver, the administrative record contains sufficient errors of fact and law to deprive the agency of substantial justification for its litigation posture. Jackson filed this action on December 14, 1984 and consented to permit the government an additional sixty days beyond the statutory sixty days to respond to the summons and complaint. By February 7, 1985, the administrative record was complete, affording the Secretary until April 19, 1985 to review a record which demonstrated that the ALJ misstated evidence, ignored Jackson's evidence of her financial needs, and made the unsupported conclusion that she could live on less than her $555.00 monthly income. Despite this record, the Secretary filed an answer on April 19, 1985 denying Jackson's claims and asserting that the Secretary's findings were supported by substantial evidence. The Secretary maintained this denial for three months, until Jackson's counsel filed a motion for judgment on the pleadings on July 22, 1985 at which time the Secretary reversed position and consented to a remand for the sole purpose of granting an overpayment waiver. When the government is faced with an administrative record which contains errors of law and fact but persists in supporting the decision of the Agency and extends litigation for months until it changes position, the courts of this district have held that the Secretary's litigation position was not substantially justified. Taverez v. Heckler, 610 F.Supp. 1059 (S.D.N.Y.1985) (Secretary voluntarily remanded case after plaintiff moved for judgment on the pleadings, attorney's fees awarded). See also Vega v. Schweiker, 558 F.Supp. 52 (S.D.N. Y.1983) (The Secretary's position not substantially justified where the court remanded case because ALJ failed to give pro se plaintiff a fair and adequate hearing; fees awarded). 405 The government's pro forma denial of all of Jackson's claims, in its answer, followed by an about-face and a voluntary consent to remand demonstrates that the government gave little serious consideration to Jackson's complaint. As Judge Stewart recently stated in Ramirez-Isalquez v. Heckler, 632 F.Supp. 100, 102 (S.D. N.Y.1985), a decision granting attorney's fees upon a voluntary remand reversing a denial of benefits: An answer denying all of the plaintiff's substantive allegations totally abandoned later, cannot be seen as a litigation position entered into after serious evaluation of the merits ... The fact that the government ultimately settled, and skipped the usual procedures of cross-motions for judgment on the pleadings, lowers its liability in terms of the amount of fees, but does not absolve it from taking the position it initially did." Under these circumstances, the government's litigation position was not substantially justified and Jackson is entitled to an award of fees pursuant to 28 U.S.C. § 2412(d)(1). Amount of Fees Maximum hourly rates for attorney's fees for prevailing parties in actions where the government's position has been found substantially unjustified under section 2412(d)(1)(A) is set out in 28 U.S.C. § 2412(d)(2)(A)(ii) which provides: "[A]ttorney fees shall not be awarded in excess of $75.00 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee." The EAJA thus specifically permits an increase in the hourly rate based on cost of living increases. See Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 217 (D.C.Cir.1984); Natural Resources Defense Council v. Environmental Protection Agency, 703 F.2d 700, 713 (3d Cir.1983). Jackson's counsel requests an 18.3% cost of living adjustment in the $75.00 statutory maximum to account for inflation from October, 1981, the date of the amendment adding subsection (d) to 28 U.S.C. § 2412 until September, 1985, calculated in accordance with the Consumer Price Index for urban consumers in the New York Metropolitan area ("CPI"). The Secretary opposes this increase in the maximum hourly rate, asserting that the inflation component should be measured from August 5, 1985, the date of the reenactment of an expired section 2412(d) to October 1, 1981 resulting in an hourly fee of $75.60 adjusted for .8% inflation. Because the government's interpretation of section 2412(d), is not compatible with the reenactment of that section, and defeats the purpose behind a cost of living adjustment, attorney rates will be calculated at $88.73 per hour.[2] While the Secretary is correct that Section 2412(d) of the original statute expired on October 1, 1984, Pub.L. No. 96-481 § 204(c), 94 Stat. 2327 (1980), this section was amended and reenacted into law in August, 1985, Pub.L. No. 99-80. Congress made its amendments to the EAJA applicable to cases pending on August 5, 1985. Pub.L. No. 99-80, Section 7, 54 U.S.L.W. 2 (Aug. 5, 1985), thereby demonstrating an intent to make Section 2412(d) retroactive as if it had never been repealed. The government's contention that cost of living increases should be calculated as of the reenactment date would defeat both the logic and policy of indexing attorney's fees to the inflation rate. It would result in a February, 1985 award of fees at the rate of $75.60 per hour and an August, 1983 fee award at the rate of $83.00 per hour under the same statute, all in the context of rising cost of living indices. Cf. Impro Products, Inc. v. Block, 569 F.Supp. 1389 (D.D. C.1983), rev'd on other grounds, 737 F.2d 406 1206 (D.C.Cir.1984). This question is not one of first impression in this Circuit. The Court in Tavarez v. Heckler, supra, 610 F.Supp. 1059, 1064 (S.D.N.Y.1985), a case strikingly similar to the one at bar, an award of seven dollar per hour cost of living increase was denied solely because counsel had failed to provide affidavit documentation of the CPI increase. Furthermore, any other reading of the cost of living increase provision would defeat the policy behind adjusting fee rates: "The purpose of the statute was to encourage challenges to agency action, and the cost of living adjustment provision seems designed to provide a disincentive to agencies to prolong the litigation process." Natural Resources Defense Council v. Environmental Protection Agency, supra, 703 F.2d at 713. Hours Expended The Anderson Declaration provides a careful breakdown of hours, dates, and descriptions of activities comprising the total request of compensation for 65.75 hours. This request is reasonable in the context of this action where Jackson was unrepresented at the administrative level and counsel was unfamiliar with the case until Jackson sought review by a federal district court. Because the Secretary failed to consent to a remand at the outset of litigation but waited until time was expended on the preparation of a motion and supporting memorandum of law for a judgment on the pleadings, considerable legal research was required. Jackson's counsel has not requested reimbursement of costs for undocumented attorney time spent preparing the summons and complaint and the in forma pauperis petition. The sixty-five hours spent preparing this action and fee application is within the range of hours awarded in similar cases in this district. See Tavarez v. Heckler, supra, 610 F.Supp. 1059 (Fees awarded for 100 hours of work where counsel prepared a motion for judgment on the pleadings and Secretary consented to a remand); Velazquez v. Heckler, supra, 610 F.2d at 332 (Disability claim where Secretary refused to consent to a remand resulted in an award of 68 hours of which 16.5 was preparation of a fee motion). For the aforementioned reasons, Jackson's fee application will be granted in the amount of $5,834.00, the product of an hourly rate of $88.73 and 65.75 hours which the Legal Aid Society expended litigating this action. IT IS SO ORDERED. NOTES [1] In a footnote to plaintiff's memorandum of law in support of the motion for attorney's fees, Jackson asserts that she is a member of the class which received constitutionally defective overpayment notices in Ellender v. Schweiker, 550 F.Supp. 1348 (S.D.N.Y.1982), 575 F.Supp. 590 (S.D.N.Y.1983). She has raised this issue for the first time in the instant motion and has offered no evidence of her membership in this class. [2] According to the Declaration of Bebe J. Anderson ("Anderson Declaration") dated November 27, 1985, the CPI was 268 in October, 1981, the effective date of the initial enactment of section 2412(d). In September, 1985, the CPI had increased by 49 points resulting in a CPI of 317; an 18.3% increase. Adjusting the statutory rate of $75.00 per hour by 18.3% results in an hourly rate of $88.73.	{ "pile_set_name": "FreeLaw" }
540 U.S. 817 BURKHARTv.QUILICI. No. 02-1707. Supreme Court of United States. October 6, 2003. 1 Appeal from the Ct. App. Cal., 3d App. Dist. 2 Certiorari denied.	{ "pile_set_name": "FreeLaw" }
612 S.E.2d 148 (2005) STATE of North Carolina v. Manuel GONZALEZ-FERNANDEZ, a/k/a Angel Luis Sanchez-Pizarro. No. COA04-433. Court of Appeals of North Carolina. May 3, 2005. Andresen & Vann, by Kenneth P. Andresen and Christopher M. Vann, Charlotte, for surety-appellant. Steven A. McCloskey and Drew H. Davis, Winston-Salem, for Winston-Salem/Forsyth County Schools, judgment creditor-appellee. 150 McGEE, Judge. Capital Bonding Corporation (Capital Bonding) appeals the trial court's order denying its motion for relief from final judgment of forfeiture (motion for relief). Manuel Gonzalez-Fernandez, a/k/a Angel Luis Sanchez-Pizarro (defendant), was charged with multiple drug offenses on 23 January 2003. Defendant was released on 28 March 2003 on a $500,000 bond for which Capital Bonding acted as surety. Defendant failed to appear for his scheduled court date in Forsyth County District Court on 10 April 2003. The Forsyth County Clerk of Court filed a bond forfeiture notice on 22 April 2003. The forfeiture became a final judgment of forfeiture on 19 September 2003. Capital Bonding filed a motion for relief on 22 September 2003, along with an affidavit of Capital Bonding employee Timothy Fitzpatrick (Fitzpatrick). Fitzpatrick stated in his affidavit that Capital Bonding learned defendant had fled the jurisdiction "the minute" defendant was released from Forsyth County Jail on the bond. A hearing on Capital Bonding's motion for relief was held on 16 October and 4 November 2003. Walter Smith (Smith), testified at the 16 October 2003 hearing. Smith stated that he was an employee of Southeast Bail Bonds, the managing body for Capital Bonding's North Carolina bail agents. Smith testified that Fitzpatrick notified Smith of the bond forfeiture on 22 April 2003, the day the clerk of court filed the bond forfeiture notice. Smith did not take any further action on the matter until 6 May 2003, when he spoke to Fitzpatrick for a second time. Fitzpatrick told Smith that defendant may have been in the custody of the United States Drug Enforcement Administration in San Juan, Puerto Rico. Smith spoke to Fitzpatrick again on 8 May 2003, when Fitzpatrick informed Smith that defendant may have actually been in United States Border Patrol custody in Champlain, New York. Smith then contacted the United States Border Patrol in Champlain. Smith discovered that the United States Marshal in Buffalo, New York took defendant into custody on 11 April 2003 for giving false information. Smith learned from the United States Attorney's Office in Albany, New York that defendant was scheduled to be sentenced to fifty-seven months in federal prison on 6 August 2003. Smith then obtained documentation on 9 May 2003 indicating that defendant attempted to enter Canada, was refused entry, and upon reentry to the United States, was detained by United States Border Patrol in Champlain. Smith took no further action for almost three months. Smith spoke to the United States Attorney in Albany on 6 August 2003 and learned that defendant had been convicted and sentenced to six months in federal prison, three years of supervised probation, and a one hundred dollar fine. Smith again refrained from acting on the case until approximately 1 October 2003, two weeks prior to the hearing on Capital Bonding's motion for relief. Smith contacted the 151 United States Marshal and asked to have a North Carolina order for arrest served in New York. A supervisor told Smith that an order for arrest could be served pending extradition. Smith unsuccessfully attempted to obtain a copy of an order for arrest from Forsyth County officials. Smith then learned that upon defendant's release from federal prison in fourteen days, the Immigration and Naturalization Service (INS) would be taking defendant into custody. Smith contacted the Forsyth County Clerk of Court and requested that a copy of the order for arrest be sent to the INS. Smith was again informed that this was possible pending extradition. Smith then had defendant's name placed in the National Crime Information Center database on 9 October 2003 to hold defendant for extradition. Capital Bonding never produced defendant in Forsyth County District Court. In an order announced in open court on 4 November 2003 and entered 31 December 2003, the trial court found that Capital Bonding was not entitled to relief from the final judgment of forfeiture. The trial court made the following pertinent findings of fact: 16. [Capital Bonding] had no apparent understanding of how to go about obtaining a Governor's Warrant, or the appropriate steps to be taken to secure [defendant's] appearance pursuant to an extradition proceeding. 17. There was a lack of effort by [Capital Bonding] between the time [Capital Bonding] learned in May, 2003 that [defendant] was in federal custody, and learning of [defendant's] actual sentence in October, 2003. 18. The efforts by [Capital Bonding] and its agents do not rise to the level of extraordinary measures so as to allow the [trial court] to set aside the forfeiture of the bond. 19. There was no evidence that defendant... is being held for extradition or that defendant is still in federal custody. 20. Defendant ... is not within this State's jurisdiction to answer the charges from which he fled. 21. Defendant's misdeeds, which have caused him to be incarcerated in another jurisdiction, do not in and of themselves exonerate [Capital Bonding] from its obligations under the bond. The trial court then made the following conclusion of law: [Capital Bonding] has not demonstrated extraordinary circumstances or efforts sufficient to set aside Defendant's bond forfeiture pursuant to N.C. Gen.Stat. § 15A-544.8. I. Bail bond forfeiture in North Carolina is governed by N.C. Gen.Stat. §§ 15A-544.1-544.8 (2003). When a defendant is released on a bail bond and fails to appear for a required court date, the trial "court shall enter a forfeiture for the amount of that bail bond in favor of the State against the defendant and against each surety on the bail bond." N.C. Gen.Stat. § 15A-544.3(a). A forfeiture becomes a final judgment of forfeiture on the 150th day after notice of forfeiture is given, unless a motion to set aside the forfeiture is either entered on or before or is pending on that date. N.C. Gen.Stat. § 15A-544.6. Relief from final judgment of forfeiture is governed by N.C. Gen.Stat. § 15A-544.8, which states: (a) Relief Exclusive.There is no relief from a final judgment of forfeiture except as provided in this section. (b) Reasons.The court may grant the defendant or any surety named in the judgment relief from the judgment, for the following reasons, and none other: (1) The person seeking relief was not given notice as provided in [N.C. Gen. Stat. §] 15A-544.4. (2) Other extraordinary circumstances exist that the court, in its discretion, determines should entitle that person to relief. In this case, Capital Bonding admits that it was properly given notice of the bond forfeiture under N.C. Gen.Stat. § 15A-544.4. Therefore, Capital Bonding may only obtain 152 relief from the final judgment of forfeiture if extraordinary circumstances exist. We review a trial court's decision whether to grant a motion for relief from final judgment of forfeiture for an abuse of discretion. N.C. Gen.Stat. § 15A-544.8(b); see also State v. Coronel, 145 N.C.App. 237, 243, 550 S.E.2d 561, 566 (2001), disc. review denied, 355 N.C. 217, 560 S.E.2d 144 (2002).[1] An abuse of discretion occurs when the trial court's act is "`"done without reason."'" State v. McCarn, 151 N.C.App. 742, 745, 566 S.E.2d 751, 753 (2002) (citations omitted). "Extraordinary circumstances" in the context of bond forfeiture has been defined as "`going beyond what is usual, regular, common, or customary ... of, relating to, or having the nature of an occurrence or risk of a kind other than what ordinary experience or prudence would foresee.'" State v. Vikre, 86 N.C.App. 196, 198, 356 S.E.2d 802, 804, disc. review denied, 320 N.C. 637, 360 S.E.2d 103 (1987) (alteration in original) (quoting Webster's Third New International Dictionary (1968)). A determination by our Court of whether circumstances are "extraordinary" is a "heavily fact-based inquiry and therefore, should be reviewed on a case by case basis." Coronel, 145 N.C.App. at 244, 550 S.E.2d at 566. We begin by noting that North Carolina case law has long been clear that the foremost goal of the bond system is the production of the defendant in court. See, e.g., State v. Robinson, 145 N.C.App. 658, 661, 551 S.E.2d 460, 462 (2001) (stating that securing the appearance of a defendant "is the primary purpose of the bond system"); Coronel, 145 N.C.App. at 247, 550 S.E.2d at 568 ("the court system's paramount concern is ensuring the return of the criminal defendant for prosecution"); Vikre, 86 N.C.App. at 199, 356 S.E.2d at 804 ("[t]he purpose of a bail bond is to secure the appearance of the principal in court as required"); State v. Locklear, 42 N.C.App. 486, 489, 256 S.E.2d 830, 832 (1979) ("[t]he goal of the bonding system is the production of the defendant"); State v. Pelley, 222 N.C. 684, 688, 24 S.E.2d 635, 638 (1943) ("The very purpose of the bond [is] ... to make the sureties responsible for the appearance of the defendant at the proper time."). To achieve this goal, bondsmen are vested with broad powers to bring their principals to court. In a landmark decision on the bond system, the United States Supreme Court stated: When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose.... It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modern it is said: "The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge." Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371-72, 21 L.Ed. 287, 290 (1872) (citations omitted). Our Supreme Court, in setting forth its modern case law, has echoed the tenets espoused in Taintor: Today's commercial bondsmen have retained the same broad common law powers sureties have always enjoyed regarding the custody, control and recapture of the principal. .... The comprehensive powers of the bondsman recognized in Taintor are based on the underlying source of the bondsman's authority to recapture the principal which derives from the contractual relationship 153 between the surety and the principal. Essentially, the bond agreement provides that the surety post the bail, and in return, the principal agrees that the surety can retake him at any time, even before forfeiture of the bond. State v. Mathis, 349 N.C. 503, 509-10, 509 S.E.2d 155, 159 (1998). With these principles in mind, we now consider Capital Bonding's assignments of error. II. Capital Bonding first argues it should be relieved from liability under the bond because defendant had been in continuous federal custody. Capital Bonding argues that once defendant was in federal custody, Capital Bonding had no means by which to produce defendant in court, and therefore extraordinary circumstances exist justifying relief from forfeiture. A defendant's imprisonment in another jurisdiction that results in that defendant's failure to appear in a North Carolina court does not relieve a surety from liability on the bond. Pelley, 222 N.C. at 689, 24 S.E.2d at 638; see also Vikre, 86 N.C.App. at 199-200, 356 S.E.2d at 804-05. In Pelley, the defendant had been taken into federal custody three days before he was scheduled to appear in court in North Carolina. 222 N.C. at 685-86, 24 S.E.2d at 636. As a result, the defendant failed to appear for his North Carolina court date and forfeited on his bond. Id. at 686, 24 S.E.2d at 636. Our Supreme Court held that the defendant's detention in federal custody did not relieve the surety of liability under the bond. Id. at 692-93, 24 S.E.2d at 640. The Court found that, due to the defendant's own wrongdoing, neither the defendant nor the surety should be entitled to relief from the bond: It matters not whether [the defendant] left the jurisdiction of this State with or without the permission of his sureties, he was entrusted to their custody. His conduct while in their custody set in motion the machinery of the law in other jurisdictions which made his appearance in [court in North Carolina] on 27 July, 1942, impossible. Had [the defendant] not committed the offenses for which he was tried and convicted in Indiana, and for which he is now imprisoned, he doubtless could have answered to the call of the Superior Court... at the proper time. He alone is responsible for his inability to appear in the North Carolina court at the time required in his bail bond. He cannot avail himself of his own wrong and thereby escape the penalty of his bond; and, as stated in Taylor v. Taintor, ... "What will not avail him, cannot avail his sureties." Id. at 692-93, 24 S.E.2d at 640 (quoting Taintor, 83 U.S. (16 Wall.) at 374, 21 L.Ed. at 291). See also Vikre, 86 N.C.App. at 200-01, 356 S.E.2d at 804-05 (holding that the defendant's incarceration in Mexico resulting in his failure to appear in court in North Carolina did not relieve the surety of liability under the bond, since the defendant's failure to appear was the result "of his own criminal acts rendering him subject to imprisonment pursuant to the criminal laws of another jurisdiction"). We hold that, under Pelley, defendant's federal incarceration is not evidence of extraordinary cause meriting Capital Bonding relief from liability under the bond. We first note that defendant, unlike the defendant in Pelley, was not in federal custody on the date that he was scheduled to appear in Forsyth County District Court. Rather, defendant was not in federal custody until the day after his failure to appear. Therefore, Capital Bonding was remiss in its custody of defendant even prior to defendant's detention in federal custody. Fitzpatrick's affidavit states that Capital Bonding was aware that defendant had left Forsyth County as soon as defendant was released on bond: "In monitoring... defendant we learned that the minute that ... defendant was bonded out of the Forsyth County Jail [defendant] fled the [country][.]" With this information, Capital Bonding had advance notice of its need to exercise its powers and apprehend defendant. By choosing not to act, Capital Bonding consequently risked forfeiture on the bond. Furthermore, like in Pelley, defendant's federal incarceration was the result of defendant's own misdeeds, and "`[w]hat will not avail [defendant], cannot avail his suret[y].'" 154 Pelley, 222 N.C. at 693, 24 S.E.2d at 640 (quoting Taintor, 83 U.S. (16 Wall.) at 374, 21 L.Ed. at 291). Defendant's incarceration in federal prison is not an extraordinary circumstance justifying Capital Bonding relief from the bond forfeiture. We also find that Capital Bonding's efforts in attempting to bring defendant to North Carolina after defendant's failure to appear do not rise to the level of extraordinary circumstances. A surety's efforts to bring a defendant to North Carolina to appear in court are not extraordinary if it was foreseeable that the surety would have to expend those efforts to produce the defendant in court. Vikre, 86 N.C.App. at 199, 356 S.E.2d at 804. In Vikre, the sureties sought to avoid liability for a bond when the defendant's incarceration in Mexico resulted in his failure to appear for his North Carolina court date. Id. at 197, 356 S.E.2d at 803. The sureties argued that they had demonstrated extraordinary cause, since they had sponsored trips to Texas and Mexico looking for the defendant, had "incurr[ed] substantial expenses," and had offered to pay for the defendant's extradition from Mexico to the United States. Id. at 197, 356 S.E.2d at 803. Our Court disagreed with the sureties and held that these efforts did not rise to the level of extraordinary cause. Id. at 199, 356 S.E.2d at 804. We found that the defendant's out-of-state residency and employment as a pilot made it "entirely foreseeable ... that the sureties would be required to expend considerable efforts and money to locate [the defendant] in the event he failed to appear." Id. at 199, 356 S.E.2d at 804. We also found that extraordinary cause did not exist, despite the sureties' efforts, since the efforts did not ultimately lead to the defendant's appearance in court, "the primary goal of the bonds." Id. at 199, 356 S.E.2d at 804. Under Vikre, Capital Bonding's efforts to return defendant to North Carolina are not evidence of extraordinary cause. The Forsyth County District Court's condition of release and release order states that defendant had only resided in the Forsyth County community for three weeks and had previously resided in New York. In addition, defendant's immigration status and previous deportation should have put Capital Bonding on notice that defendant had ties outside of the country. As in Vikre, it was entirely foreseeable that Capital Bonding could potentially incur much expense and effort in ensuring that defendant would appear in court. Moreover, Capital Bonding did not expend any efforts in an attempt to bring defendant to court until well after defendant's failure to appear, and the majority of these efforts did not occur until after final judgment of forfeiture on the bond. Finally, like in Vikre, Capital Bonding's efforts did not result in defendant's appearance in court in North Carolina. Capital Bonding's efforts do not rise to the level of "extraordinary circumstances." Similarly, Capital Bonding's overall lack of diligence in its efforts to bring defendant before the Forsyth County District Court precludes us from finding that extraordinary circumstances exist. To that end, we find Coronel instructive. In Coronel, the sureties appealed an order denying their motion to remit judgment of forfeiture. Coronel, 145 N.C.App. at 238, 550 S.E.2d at 563. The defendants had failed to appear in court after they had fled to Mexico and had died there in an automobile accident eight months after their failure to appear. Id. at 239-40, 550 S.E.2d at 563-64. Our Court found that extraordinary cause did not exist to merit remission of the forfeiture, since the "sureties' pursuit was simply not diligent": The key to this conclusion is a complete lack of evidence demonstrating that the sureties were concerned with defendants' 14 December appearance [the date of the failure to appear]. They did not attend court on that date and acknowledged that they had no method of knowing whether defendants attended court. Moreover, they offered no explanation as to why defendants were not in attendance. Furthermore, sureties subsequently located defendants in Mexico, apparently on trips that did not commence until July 1999. It appears that sureties could have detected defendants' whereabouts much earlier.... Id. at 249, 550 S.E.2d at 569. As in Coronel, Capital Bonding has failed to explain why defendant did not appear in 155 court on 10 April 2003, and instead only offers an explanation for defendant's whereabouts after this date. Additionally, Capital Bonding made little effort to bring defendant to court until after final judgment of forfeiture was entered, almost six months after defendant failed to appear in court. Capital Bonding's lack of diligence obviates a finding of extraordinary circumstances in this case. Since defendant's presence in federal custody, Capital Bonding's efforts to obtain defendant, and its lack of diligence do not justify a finding of extraordinary circumstances, we cannot find that the trial court's order denying Capital Bonding's motion for relief was an abuse of discretion. Capital Bonding argues that once defendant was in federal custody, it could have avoided liability under the bond by obtaining a certified copy of the order for arrest and serving it on defendant in the New York federal facility. Capital Bonding avers that its request for such an order for arrest was denied by Forsyth County officials. Capital Bonding argues that these are extraordinary circumstances meriting relief from liability under the bond. Capital Bonding's argument is without merit. Under N.C. Gen.Stat. § 15A-544.5(b)(4), a surety may obtain relief from a bond forfeiture, not a final judgment of forfeiture, when the defendant has been served with an order for arrest. In this case, Capital Bonding did not attempt to obtain an order for arrest until 1 October 2003, clearly after the final judgment of forfeiture was entered on 19 September 2003. Capital Bonding's argument must therefore fail. Furthermore, even if appellant's attempts to obtain an order for arrest had been timely, the Forsyth County Clerk of Court properly denied Capital Bonding's request for an order for arrest. N.C. Gen.Stat. § 15A-301(b) (2003) provides that "[w]arrants for arrest and orders for arrest must be directed to a particular officer, a class of officers, or a combination thereof, having authority and territorial jurisdiction to execute the process." For the purposes of this statute, "officer" is defined as "law-enforcement officer." N.C. Gen.Stat. § 15A-101(6) (2003). The record reveals that Capital Bonding's attorney, Lawrence Grayson (Grayson), made the request for an order for arrest. The Forsyth County Clerk of Court therefore complied with the statutory mandate in denying Capital Bonding's request, since Grayson was not a law enforcement officer. III. We next consider Capital Bonding's petition for writ of certiorari to include additional material in the record on appeal. Specifically, Capital Bonding seeks to include the following documents in the record: a 28 October 2003 indictment from the Middle District of North Carolina, indicting defendant on the federal counterparts to the state drug offenses defendant was originally charged with on 23 January 2003; the Forsyth County District Attorney's dismissal of the state charges against defendant, dated 6 November 2003; and a recall of defendant's order for arrest dated 6 November 2003. Capital Bonding had originally included these materials in its proposed record on appeal, but the trial court sustained Winston-Salem/Forsyth County Schools' objection to these materials, in accordance with the Rules of Appellate Procedure in effect at the time.[2] We recognize that "a challenge to the trial court's settlement [of a record] may be preserved by an application for certiorari made incidentally with the perfection of the appeal upon what record there is." Craver v. Craver, 298 N.C. 231, 237, n. 6, 258 S.E.2d 357, 361, n. 6 (1979). However, the documents that Capital Bonding seeks to include in the record were never presented to the trial court until after it entered its order. We cannot conduct an abuse of discretion review of a trial court's order based on materials that were never made available to the trial court. We also recognize that Capital *156 Bonding had the opportunity to bring these materials to the trial court's attention while the case was still within the trial court's jurisdiction. The indictment was filed 28 October 2003, prior to the trial court's announcement of its order denying Capital Bonding's motion for relief on 4 November 2003. The dismissal and recall of order for arrest are dated 6 November 2003, just two days after the trial court's announcement of its order and well before both this order was entered on 31 December 2003 and Capital Bonding's notice of appeal was given on 2 January 2004. Capital Bonding did not make a motion pursuant to either North Carolina Rule of Civil Procedure 59 or 60 to bring this material to the trial court's attention, but rather sought to bring this material to light for the first time while this case was already pending on appeal. See N.C. Gen. Stat. § 1A-1, Rules 59 and 60 (2003). We find that this is further evidence of Capital Bonding's lack of diligence and deny Capital Bonding's petition for writ of certiorari. Finally, we note that in its petition for writ of certiorari, Capital Bonding asserts that this Court can take judicial notice of the indictment, dismissal of charges, and recall of order for arrest. However, we have held that this "Court may not take [judicial] notice of matters excluded from the record [on appeal], since the order settling the record on appeal is final and cannot be reviewed on appeal except on motion for certiorari." Coiner v. Cales, 135 N.C.App. 343, 346, 520 S.E.2d 61, 63 (1999) (citing State v. Johnson, 298 N.C. 355, 372, 259 S.E.2d 752, 763 (1979)). Since this material was excluded from the record and we have denied Capital Bonding's petition for writ of certiorari to include this material in the record, we may not take judicial notice of this material. Capital Bonding has failed to present any argument in support of his remaining assignments of error. They are therefore deemed abandoned. N.C.R.App. P. 28(b). Affirmed. Judges WYNN and TYSON concur. NOTES [1] We note that, effective 1 January 2001, the previous bond forfeiture statute, N.C. Gen.Stat. § 15A-544 (1999), upon which Coronel was decided, was repealed. We also recognize that the time limitations and procedures under the former statute differ from the current N.C. Gen. Stat. § 15A-544.8. Nevertheless, we find the case law interpreting the former statutory terms instructive. Furthermore, in oral argument to this Court, Capital Bonding admitted that the case law interpreting the former statute applies to this case. [2] Former N.C.R.App. P. 11(c), which permitted an appellant to request that the trial court settle a record on appeal when the parties were unable to agree on the contents of the record, was in effect on 19 March 2004, when the trial court entered an order settling the record on appeal in this case. However, this provision has been superseded by the new N.C.R.App. P. 11(c), effective 12 May 2004.	{ "pile_set_name": "FreeLaw" }
815 F.Supp. 1304 (1993) UNITED STATES of America, Plaintiff, v. Anthony RAMOS, Defendant. No. CR 92-648-TUC-WDB. United States District Court, D. Arizona. March 12, 1993. Ted B. Borek, Asst. U.S. Atty., Tucson, AZ, for plaintiff. Joseph P. St. Louis, Atty., Tucson, AZ, for defendant. ORDER WILLIAM D. BROWNING, Chief Judge. Pending before the Court is the government's Motion for Reconsideration of the Court's previous ruling granting Defendant's Motion to Suppress. For the following reasons, the Court will deny the government's Motion. OPINION AND ORDER This matter is before the Court on the question of whether the search of Defendant's vehicle, yielding two weapons, cocaine, and marijuana obtained from a closed backpack in the front seat of his car, was lawful. The government seeks to justify the search on the basis of a lawful arrest for the misdemeanor traffic offense of reckless driving. The evidence at the hearing disclosed that, on June 2, 1992, Defendant was traveling 1305 between 100 and 125 miles an hour on an interstate freeway. He drove up behind the highway patrolman's automobile at this high rate of speed and swerved into another lane to miss both the highway patrolman and an adjacent motorist. He then slowed to approximately 65 miles an hour, traveled roughly one mile and made a lawful, non-dangerous, exit from the freeway on an off-ramp. Defendant came to a stop at the bottom of the off-ramp, executed a lawful left turn, and traveled some distance before the officer pulled him over. Defendant then pulled into a business park and lawfully parked his vehicle. These events occurred during daylight. The officer stopped behind Defendant and ordered him to exit his vehicle. The officer placed Defendant under arrest, handcuffed him and placed him in the patrol car. According to the testimony, the officer had decided to arrest Defendant for reckless driving prior to pulling him over. The officer had no cause or reason to believe that Defendant had committed or was committing any other offense. Specifically, the officer had no grounds to suspect that the individual was driving under the influence of intoxicants or was otherwise impaired. The officer stated that he had no policy governing his decision whether to arrest a person, or to issue a citation and release individuals on their promise to appear ("cite and release"). Rather, he testified that it was entirely within his discretion. He also testified that it was within his discretion to leave the automobile at the scene or order it impounded. In this case, he ordered it removed from the scene because he did not want Defendant to come back and drive it away. This decision was predicated on what he considered to be Defendant's bad driving habits. At a later hearing, the Court accepted an offer of proof by way of avowal from the Assistant United States Attorney that the officer would testify, if recalled to the stand, that he had information that there had previously been vandalism to vehicles in this area. This was, of course, directly contradictory of the prior evidence on that subject and is viewed by the Court as an attempt to boot strap the officer's rationale for his action. The officer testified that, although he was not angry, he was very concerned about the conduct of the offender and intended to place him under arrest even before he brought his vehicle to a stop. Defendant is an Hispanic male with long hair and a mustache, who drove an 11 year old Datsun automobile. Ariz.Rev.Stat.Ann. § 28-1054 (1989)[1] provides that a person stopped for a traffic offense shall be given a citation (charge & summons) and released on his written promise to appear. Ariz.Rev.Stat.Ann. § 28-1053 (1989)[2] provides that, in the event that any 1306 of three enumerated traffic offenses has been committed, the offender shall immediately be taken before a magistrate. Reckless driving, for which Defendant was arrested, is not one of the enumerated offenses. It is evident from these sections that Arizona clearly desires to protect motorists from arrest for traffic offenses. The three serious offenses enumerated in section 28-1053 (negligent homicide, driving while under the influence of intoxicating liquor or narcotic drugs ("DUI"), and failure to stop at an accident) are the exceptions. In all other cases, the person shall be released upon his written promise to appear in court. Ariz.Rev.Stat.Ann. § 13-3883(A)(3) (1989 & Supp.1992)[3] provides for a warrantless arrest in the event of a misdemeanor committed in the officer's presence and in the event of a violation of Title 28 resulting in an accident.[4] The legislature has thus reaffirmed its position that traffic offenses, as a general rule, are not sufficiently serious to warrant custodial arrest and all the incidents attendant thereon. That this is clearly the intent of the legislative scheme relative to traffic offenses is borne out by a reading of Ariz.Rev.Stat. Ann. § 13-3883(B) (1989 & Supp.)[5], which provides that an officer may "stop and detain ... as is reasonably necessary to investigate [a traffic offense] committed in the officers presence and may[6] serve" a citation for any criminal violation provided he/she does so within a reasonable time. The statute authorizing arrest is, therefore, qualified by treating traffic offenses as distinctly different. There can be no question that, by the addition of section 13-3883(B) in 1990, the legislature meant to curb the power of police to arrest for traffic offenses. They can "stop and detain," but that is a far less onerous consequence than arrest because there can be no search incident thereto or no impoundment. This limitation obtains even when the misdemeanor criminal traffic violation is committed in the officer's presence. Section 13-3883(B), being specific, qualifies and curbs the police power to arrest conferred by section 13-3883(A)(2). It is likewise consistent with section 13-3883(A)(3) in that the power to arrest for Title 28 offenses exists only if the added factor of a traffic accident is present. Section 13-3883 is also totally consistent with section 28-1053 which specifically deals with the exceptions to the state's policy of freedom from arrest for Title 28 misdemeanors. 1307 This analysis of Arizona's statutory scheme is not complete without reference to Ariz. Rev.Stat.Ann. 13-3903 (1989)[7] which specifies a person's rights after having been lawfully arrested. In such event, the officer has the discretion to either keep the person in custody until seen by a magistrate, or cite and release the person. Section 13-3903's predecessor, Ariz.Rev.Stat.Ann. § 13-1422, is devoid of any reference to traffic offenses and is contained in the Criminal Code. Defendant urges that he was unlawfully arrested and, there being no independent probable cause for a vehicle search, that the search and resultant seizure must be suppressed. The government argues that the arrest was lawful because the officer has unbridled discretion to either arrest for a misdemeanor committed in his presence (including traffic offenses), or to cite and release the defendant. The government cites State ex rel. Purcell v. Superior Court, 107 Ariz. 224, 485 P.2d 549 (1971) as so holding. Purcell involved a traffic stop and arrest for driving while under the influence of intoxicating liquor in violation of Ariz.Rev.Stat. Ann. § 28-692. The defendant sought dismissal of the charges because a violation of section 28-692 is one of the three offenses enumerated in section 28-1053 which commands that the defendant "shall immediately be taken before a magistrate." The Purcell defendant argued that he must be acquitted because the officer cited and released him instead of taking him into custody and bringing him before a magistrate. The court held that the officer had discretion, conferred by section 13-1422, to cite and release the defendant for DUI notwithstanding the mandatory language of section 28-1053. This was all that was squarely before the court and necessary for its decision. Section 28-1054, referred to in the Purcell opinion, was not at issue because the narrow issue before the court was simply whether the officer had the discretion to release the defendant notwithstanding the command of section 28-1053. No one claimed that an officer may arrest notwithstanding the prohibition against arrest in section 28-1054. The question of the consequences of arresting someone in contravention of the legislative command of section 28-1054 to release the person was not raised, nor did the court even discuss it. Purcell confers authority to release, not to arrest. Arrest is a much more intrusive and serious consequence than release, and must be viewed in light of entrenched constitutional standards. The court in Purcell made no attempt to do so. Nor does section former section 13-1422, now section 13-3903 confer, limit, or grant the power to arrest. Thus, the Arizona Supreme Court in Purcell assumed, and correctly so, the legitimacy of the arrest. The authority to arrest for traffic misdemeanors, which is in contravention of the common law,[8] is conferred by section 13-3883 and expressly limited by section 28-1054. The Purcell Court, after stating the general rules that repeal by implication is to be avoided, and that statutes must be harmonized if possible, states: We hold here that §§ 28-1053 and 28-1054 were repealed by the enactment of §§ 13-1422 and 13-1423. Purcell, 107 Ariz. at 442, 485 P.2d at 552 (emphasis added). This Court has sought to give deference to that language, but, as pointed out above, this language is not a holding except insofar as it allows one detained to be released. The Purcell Court does not hold, nor did it consider on a full record and deliberative decision, whether an officer has unfettered discretion to arrest or "release". This Court's conclusion that the Purcell holding insofar as it purports to relate to non DUI offenses (covered by § 28-1053) is dicta is supported by Town of Chino Valley v. City of Prescott, 131 Ariz 78, 638 P.2d 1324 (1982). Chino, authored by the Justice Struckmeyer, who wrote Purcell, notes that "dictum thrice repeated [and oft relied upon] is still dictum." 1308 Chino, 131 Ariz. at 81, 638 P.2d at 1327. Moreover, the Arizona Supreme Court has announced the bright-line rule that pronouncement on a matter unnecessary to the decision is dicta. McCluskey v. Industrial Comm., 80 Ariz. 255, 258, 296 P.2d 443, 445 (1956). Section 13-3903 now also provides that, if an arrest has been made, a lawful search made incident thereto is not invalidated by the officer's subsequent decision to cite and release the defendant. This section, of course, assumes a lawful arrest and, because the Court has concluded the arrest here is unlawful, is of no comfort to the government. The Court concludes that, although section 28-1054 speaks of "arrested" persons, the term must be read in connection with section 13-3883(B) which authorizes an officer to "stop and detain" rather than "arrest" pursuant to section 13-3883(A). This construction is consistent with the goal of harmonizing the interpretation of the statute if possible. Purcell, 107 Ariz. at 552, 485 P.2d at 552 (citing State Land Department v. Tucson Rock and Sand Co., 107 Ariz. 74, 481 P.2d 867 (1971)). There is ample evidence in the Arizona statutory scheme that the legislature considers sections 28-1053 and 28-1054 to be viable. See section 13-3883 (providing for cite and release in all traffic offenses except those involving traffic accidents). The Arizona Rules of Procedure in Traffic Cases refer to sections 28-1053 and 28-1054. This reference exists despite the government's contention of repeal under the authority of Purcell. Indeed, the Arizona Supreme Court has acknowledged that sections 28-1053 and 28-1054 are still extant as the guideposts for determining when Miranda warnings must be given. Hiveley v. Superior Court, 154 Ariz. 572, 744 P.2d 673 (1987) (holding Miranda warning need not be given in a traffic offense case unless section 28-1053 comes into play or unless there is otherwise a lawful non-traffic arrest is made). The legislative intent was to make all traffic offenses non-custodial encounters save for the limited instances enumerated in section 28-1053. The purpose of this special treatment of traffic offenses is clear. These are minor offenses, malum prohibitum in nature, which do not involve serious breaches of the peace. Finding a violation of the Motor Vehicle Code is extremely easy. Because it is so easy to justify stopping an detaining persons for these extremely minor offenses, it is an invitation to abuse to grant to peace officers the power of arrest. It would permit the officer the discretion, unfettered by meaningful control or oversight, to arrest or cite and release. In all likelihood, the heaviest impact will fall on motorists such as juveniles, minorities, impolite motorists, and persons whose vehicles or physical appearance are offensive to the officer. Not only are there costs and inconvenience attendant on such an arrest, but arrests such as these provide an almost unlimited license to search a vehicle. The statutes cited above, if the government is correct, would authorize a stop for any violation, or investigation of a violation pursuant to section 13-3883(B), a subsequent arrest, and a warrantless search of virtually any vehicle traveling on the roadway. Moreover, that the legislature intended traffic citation to be non-custodial is strongly buttressed by the addition of Section E to § 28-1054[9]. This unusual section emphasizes the strong legislative intent that citizens only be minimally disrupted for Title 28 offenses. Arizona statutes, if such an arrest were valid, would authorize the subsequent search of the vehicle for weapons; for evidence which might be destroyed; and for "inventory" reasons, i.e. to protect the defendant's property from loss or theft. In the event that the search uncovers nothing, even though the officer has effectuated an arrest, he may cite and release the person and let him drive off in his vehicle. There would likely be no meaningful records of this misuse of the power of arrest and the heaviest impact of such conduct would likely fall on those unable or unwilling to challenge it. *1309 Thus, the legislative protection from arrest is well founded in reason, and prevents unjustified harassment and invasive intrusions on liberty and property interests. CONCLUSION Because the Court finds the public policy of Arizona strongly favors the citation and release of traffic offense misdemeanants, which has been reaffirmed in Rules of Court, judicial decision, and other statutory enactments, the Court holds that the arrest here was unlawful and in violation of sections 28-1053 and 28-1054. Accordingly, IT IS ORDERED that the government's Motion for Reconsideration is DENIED. IT IS FURTHER ORDERED that all evidence obtained as a result of the search following that arrest is SUPPRESSED. The Court recognizes that a search such as this is of doubtful constitutional validity, but it is not required to reach or decide that question. An excellent discussion of this interesting question is contained in Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp.L.Rev. 221 (1989). IT IS FURTHER ORDERED that the Defendant be released from custody immediately. NOTES [1] § 28-1054. When person arrested for misdemeanor to be given five days notice to appear in court A. When a person is arrested for any violation of this chapter punishable as a misdemeanor, and the person is not immediately taken before a magistrate as required by § 28-1053, the arresting officer shall prepare in quadruplicate written notice to appear in court containing the name and address of the person, the license number of his vehicle, if any, the offense charged and the time and place when and where the person shall appear in court. B. The time specified in the notice to appear shall be at least five days after the arrest unless the person arrested demands an earlier hearing. C. The place specified in the notice to appear shall be before a magistrate within the city, town, precinct or county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense. D. The arrested person in order to secure release as provided in this section, shall give his written promise so to appear in court by signing at least one copy of the written notice prepared by the arresting officer. The officer shall deliver a copy of the notice to the person promising to appear. Thereupon, the officer shall forthwith release the person arrested from custody. E. An officer violating any of the provisions of this section is guilty of misconduct in office and is subject to removal from office. [2] § 28-1053. Arrest by officer without warrant. When a person is arrested for any violation of this chapter punishable as a misdemeanor, the arrested person shall be immediately taken before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense, provided a person taken before a justice of peace shall be taken before the nearest or most accessible with reference to the place where the arrest is made, in any of the following cases: 1. When a person arrested demands an immediate appearance before a magistrate. 2. When the person is arrested upon a charge of negligent homicide. 3. When the person is arrested upon a charge of driving while under the influence of intoxicating liquor or narcotic drugs. 4. When the person is arrested upon a charge of failure to stop in the event of an accident causing death, personal injuries or damage to property. 5. When it reasonably appears to the arresting officer that the person arrested is about to leave the jurisdiction of the state. 6. In any other event when the person arrested refuses to give his written promise to appear in court as provided in this article. [3] § 13-3883(A) A peace officer may, without a warrant, arrest a person if he has probable cause to believe: 1. A felony has been committed and probable cause to believe the person to be arrested has committed the felony. 2. A misdemeanor has been committed in his presence and probable cause to believe the person to be arrested has committed the offense. 3. The person to be arrested has been involved in a traffic accident and violated any criminal section of title 28, and that such violation occurred prior to or immediately following such traffic accident. 4. A misdemeanor or a petty offense has been committed and probable cause to believe the person to be arrested has committed the offense. A person arrested under this paragraph is eligible for release under § 13-3903. [4] Title 28 of the Arizona Statutes addressed motor vehicle traffic offenses. Title 13, comprises Arizona's Criminal Code. [5] § 13-3883(B) A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of any traffic law committed in the officer's presence and may serve a copy of the traffic complaint for any alleged civil or criminal traffic violation. A peace officer who serves a copy of the traffic complaint shall do so within a reasonable time of the alleged criminal or civil traffic violation. [6] This language clearly means that the officer may, or may not, cite the defendant, not that he has the option to arrest or cite. [7] Formerly Ariz.Rev.Stat.Ann. § 13-1422. [8] See Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp.L.Rev. 221 (1989). [9] § 28-1054(E) An officer violating any of the provisions of this Section is guilty of misconduct in office and is subject to removal from office.	{ "pile_set_name": "FreeLaw" }
713 S.E.2d 790 (2011) STATE v. STEPP. No. COA10-867. Court of Appeals of North Carolina. Filed June 7, 2011. Case Reported Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
250 Cal.App.2d 749 (1967) 59 Cal. Rptr. 34 ROBERT L. MEADOWS et al., Plaintiffs and Appellants, v. BAKERSFIELD SAVINGS & LOAN ASSN., Defendants and Respondent. Docket No. 703. Court of Appeals of California, Fifth District. May 5, 1967. 750 Robert L. Meadows, in pro. per., for Plaintiffs and Appellants. Deadrich, Bates & Lund and Kenneth H. Bates for Defendant and Respondent. STONE, J. Plaintiffs appeal from a judgment of nonsuit in their action for damages predicated on the theory of abuse of process. Defendant Bakersfield Savings & Loan Association financed the purchase of a residence for plaintiffs, who, in turn, executed a promissory note for the principal sum of $20,200 with interest at the rate of 6.6 percent per annum, payable in monthly installments on account of principal and interest in the sum of $138. The note provided for a late-payment penalty equal to 10 percent of any installment not paid within 15 days of its due date. Plaintiffs also signed an agreement to pay all the taxes and assessments affecting the real property, and to pay fire insurance premiums, taxes and insurance premiums to be prorated monthly and impounded by defendant in a reserve account from which future taxes and insurance premiums were to be paid. To the monthly installment of $138 for principal and interest, defendant added an estimated $28 for prorate of taxes and $4 for fire insurance, or a total of $170 commencing June 1, 1962. Defendant advised plaintiffs May 16, 1963, that because of an increase in Kern County real property taxes it was necessary to increase the monthly payment for tax reserve, so that their total monthly payment was increased from $170 to $194. Plaintiffs were also advised that the 10 percent delinquency rate would be $19.40 after June 1, 1963. In November 1963 plaintiffs sent their monthly check for $194 more than 15 days after it was due, and the association returned the check with a notice of a 10 percent late charge of $19.40, making the amount due $213.40. A dispute arose, plaintiffs contending the late penalty payment provided in the promissory note was expressly limited to 10 percent of the monthly installment of $138 on principal and interest, and that defendant had no right to charge the penalty on the reserve payments for taxes and fire insurance premiums. In the course of the controversy, plaintiffs discovered 751 that defendant had prorated taxes on an 11-month basis instead of in 12 equal payments. They demanded that the prorated portion of their monthly payment be restored to the original $28 per month. Plaintiffs made no more payments. Several conferences were had between them and various representatives of defendant, but without success, and on January 29, 1964, defendant caused a "Notice of Default and Election to Sell Under Deed of Trust" to be recorded in Kern County, and a copy to be served upon each of the plaintiffs. Shortly before the time fixed for sale, plaintiffs sought relief by way of a complaint stating a first cause of action for declaratory relief, and a second cause of action for damages. They obtained a temporary restraining order preventing defendant from proceeding with the sale under the deed of trust. A bifurcated trial was ordered; the declaratory relief action was set for trial by the court, to be followed by a jury trial of the second cause of action for damages. The trial court decided the declaratory relief action in favor of plaintiffs. The same judge presided over the jury trial for damages. Plaintiffs advised the court that their cause of action for damages was predicated upon abuse of process, and they proceeded to trial on that theory. The case did not reach the jury, however, as defendant's motion for nonsuit was granted. From the pleadings, it is difficult to tell the nature of plaintiffs' second cause of action. They pleaded the original loan agreement with monthly payments including impound for taxes and insurance, and that the impounds were increased beyond amounts legally chargeable, including an excessive demand for late charges. They also alleged that defendant was notified, both orally and in writing, that the charges exceeded those agreed upon, that plaintiffs suggested that defendant seek advice of counsel in interpreting the loan instruments but nevertheless defendant threatened to foreclose upon and sell plaintiffs' property if they did not comply with "defendant's extortionate demands." It is then charged that defendant, in pursuance of these threats, caused a notice of default to be recorded on January 29, 1964, in the official records of the County Recorder of the County of Kern, and on May 7, 14 and 21, 1964, caused to be published a notice of trustee's sale to be held May 29, 1964. Plaintiffs premised their claim for damages upon the allegations that each of them suffered "great distress of mind 752 consisting of humiliation, and embarrassment before their friends, neighbors, and the public at large to the damage of each of them in the sum of $5,000.00 for a total sum of $10,000.00," and that "in doing all things herein alleged, defendants acted maliciously and with a wanton disregard of the rights and feelings of plaintiffs, and their acts are and were entirely against public policy, and by reason thereof, plaintiffs demand exemplary and punitive damages against said defendants in the sum of $100,000.00." Abuse of process, as such, is not pleaded. The pretrial order conforms to the complaint. Apparently the trial judge was not clear as to the theory of the second cause of action because when defendant moved for a nonsuit, the following colloquy between plaintiffs' counsel and the court occurred: "BY THE COURT: Very well. Now let's get back to the main question and that is what theory are you proceeding under. "MR. MEADOWS: Your Honor ... "BY THE COURT: What is the basis of the liability that you contend is present in this case? "MR. MEADOWS: Your Honor, I am still proceeding on an abuse of process theory. "BY THE COURT: All right, you are not proceeding on any question of slander of title are you? "MR. MEADOWS: No your Honor. "BY THE COURT: All right, I want that clear. Abuse of process is your real basis for your position that the defendant is liable." Thereafter the trial court granted the motion for nonsuit, upon the ground plaintiffs had failed to plead or prove a prima facie case of abuse of process. The few California cases concerning abuse of process all approve the definition of that tort as delineated in 3 Restatement of Torts, section 682, page 464. [1] The gravamen of the cause of action lies in the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. (Tranchina v. Arcinas, 78 Cal. App.2d 522, 524 [178 P.2d 65]; Pimentel v. Houck, 101 Cal. App.2d 884, 886 [226 P.2d 739]; Tellefsen v. Key System Transit Lines, 198 Cal. App.2d 611, 613 [17 Cal. Rptr. 919]; Kyne v. Eustice, 215 Cal. App.2d 627, 631 [30 Cal. Rptr. 391]; Coy v. Advance Automatic Sales Co., 228 Cal. App.2d 313, 318 [39 Cal. Rptr. 476]; Thornton v. Rhoden, 245 Cal. App.2d 80, 94 [53 Cal. Rptr. 706].) 753 Perhaps the most exhaustive review of abuse of process in a California case is found in Spellens v. Spellens, 49 Cal.2d 210 [317 P.2d 613], wherein the Supreme Court, after approving the definition in 3 Restatement of Torts, section 682, page 464, quotes the definition of Mr. Justice Pound in Dean v. Kochendorfer, 237 N.Y. 384 [143 N.E. 229]: "`The gist of the action for abuse of process lies in the improper use of process after it is issued. To show that regularly issued process was perverted to the accomplishment of an improper purpose is enough.'" (P. 231.) (See also Prosser, Law of Torts (3d ed.) p. 876; 1 Harper & James, The Law of Torts, § 4.9, p. 330; 1 Am.Jur.2d p. 250.) [2a] We are confronted with the question whether recording a notice of default and publishing a notice of trustee's sale pursuant to the terms of a deed of trust constitute process in the sense that the term "abuse of process" is used in the law. Bouvier's Law Dictionary defines process as "The means of compelling a defendant to appear in court, after suing out the original writ, in civil, and after indictment, in criminal, cases.... A writ, warrant, subpoena, or other formal writing issued by authority of law; ..." [3] The case of Lobrovich v. Georgison, 144 Cal. App.2d 567, 574 [301 P.2d 460], says that "Process is a means whereby a court compels a compliance with its demands." [4] Thus, the essence of the tort "abuse of process" lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. [2b] Since defendant took no action pursuant to authority of court, directly or by ancillary proceedings, no judicial process was abused. Plaintiffs argue that intentionally posting notice of default and notice of sale under the provisions of the deed of trust is analogous to a foreclosure action. That is, if such an action were filed and a court order obtained for a sale to accomplish a wrongful purpose, abuse of process would lie. But a foreclosure action is a court proceeding, and we find no case extending the definition of "process" to a proceeding that in nowise emanates from or rests upon the authority or jurisdiction of a court. In Tellefsen v. Key System Transit Lines, supra, the plaintiff's complaint charging abuse of process was predicated upon an appeal from a judgment for personal injuries; the wrongful filing of an unmeritorious appeal for an ulterior 754 motive was alleged to be the process abused. The reviewing court refrained from determining whether intentionally and maliciously taking a frivolous appeal constituted abuse of process even though it entailed a judicial proceeding. The court observed, in passing, that "Process has normally been considered to mean those actions that are initiated either independently, such as the original commencement of a suit, or those processes initiated collaterally, such as an attachment." (P. 613.) There is dictum in Thornton v. Rhoden, supra, that comes much closer to plaintiffs' contention. In Thornton the plaintiff contended that a deposition was taken for an improper purpose to obtain a collateral advantage not properly involved in the proceeding itself. The court commented: "Although the giving of a notice that a deposition will be taken is not `process' in the strictest sense of the word we are inclined to the belief that in a proper case an abuse of the powers which a litigant derives from the taking of a deposition on proper notice gives such notice the status of `process' for the purpose of the tort under consideration. [Citation.] We will also assume, without deciding, that the taking of a deposition for the sole purpose of permitting the papers to publicize defamatory matter which they might hesitate to print unless protected by the privilege set forth in section 47, subdivision 4 of the Civil Code and the use of the deposition transcript for the purpose of bringing such matters to the attention of the press, is the type of conduct which is condemned." (Pp. 94-95.) Had the court, in Thornton, felt compelled to decide that the improper taking of a deposition is within the ambit of abuse of process, it would be of little comfort to plaintiffs here. A deposition is taken ancillary to the filing of a lawsuit or a legal proceeding of some sort; it is an act inherent in the judicial process. Interestingly enough, abuse of process emerged as a tort action through decisional law to provide redress of a wrong for which previously there had been no remedy. It was an extension of the cause of action, or at least it complements the cause of action, that arises when an action is wrongfully prosecuted or process is wrongfully caused to be issued. Plaintiffs argue that by parallel reasoning the principles motivating this development in the law impel its extension to the wrongful use of notice of default and power of sale pursuant to a deed of trust. It is argued that this proceeding, which has the sanction of law, is subject to abuse in much the same 755 manner as process issued by a court. Plaintiffs rely upon Civil Code section 3523, "For every wrong there is a remedy." Plaintiffs' principal reason for seeking relief on the theory of abuse of process appears to be that in a breach of contract action or a slander of title action they would not be entitled to recover general or punitive damages for the humiliation, embarrassment and mental distress they allege they suffered. But it is not necessary to enlarge the scope of the action "abuse of process" to afford relief in these circumstances. There is a remedy in tort for an intentional breach of contract. (See 2 Witkin, Summary of Cal. Law (1960) Torts, p. 1172; 1 Witkin, Cal. Procedure (1954) Actions, p. 525; Prosser, Law of Torts (3d ed.) p. 638.) The principle is expressed in Jones v. Kelly, 208 Cal. 251, 255 [280 P. 942], in the following language: "The law imposes the obligation that `every person is bound without contract to abstain from injuring the person or property of another, or infringing upon any of his rights.' [Citation.] This duty is independent of the contract and attaches over and above the terms of the contract. This being so, the plaintiffs may treat the injury as a tort or as a breach of contract at their election." (See also Eads v. Marks, 39 Cal.2d 807, 811 [249 P.2d 257]; Comunale v. Traders & General Ins. Co., 50 Cal.2d 654, 663 [328 P.2d 198].) In a tort action, the fact that the tort alleged may also constitute a breach of contract does not foreclose the awarding of both general and punitive damages. (Ward v. Taggart, 51 Cal.2d 736 [336 P.2d 534]; Coleman v. Ladd Ford Co., 215 Cal. App.2d 90, 94 [29 Cal. Rptr. 832].) We find no necessity for extending the rationale of abuse of process to provide a remedy for the wrong plaintiffs allege they suffered. The judgment is affirmed. Conley, P.J., concurred. Gargano, J., being disqualified, did not participate. A petition for a rehearing was denied June 2, 1967. Gargano, J., being disqualified, did not participate therein. Appellants' petition for a hearing by the Supreme Court was denied July 26, 1967.	{ "pile_set_name": "FreeLaw" }
564 S.W.2d 422 (1978) Ex parte Suzanne Weldon DIRR, Relator. No. 17128. Court of Civil Appeals of Texas, Houston, (1st Dist.). March 16, 1978. 423 Nell H. Holloway, Houston, for appellant. George A. Rustay, Houston, for appellee. COLEMAN, Chief Justice. This is an original proceeding for Writ of Habeas Corpus. Relator seeks release from confinement suffered as a result of a judgment entered finding her in contempt of court for the failure to grant child visitation rights and "because of her continued litigation and her intentionally interfering and harassing Relator in such child visitation." The affidavit on which the contempt hearing was held charged Relator with contempt and was based on an order entered by the court of domestic relations modifying and making more certain the rights of visitation previously established by a judgment entered in a divorce action. Neither the divorce judgment nor the modifying order enjoined Relator from harassing her former husband, Eugene Oliver Dirr, Jr., or from interfering with his visitation rights by continued litigation. There is neither pleading nor proof that the court had entered an order directing Mrs. Dirr not to file further legal proceedings affecting the visitation rights granted to Mr. Dirr. A court has no general power to enforce its decrees by contempt proceedings. Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523 (1961); Ex parte Prickett, 159 Tex. 302, 320 S.W.2d 1 (1958). The court may enforce by contempt proceedings an order or command embodied in a decree where the details of compliance are set forth in clear, specific and unambiguous terms. Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). The trial court exceeded its jurisdiction in ordering Relator punished for interfering with her husband's visitation rights by resort to the courts even though he considered that her conduct amounted to harassment. The court found the Relator guilty of two acts of contempt and assessed a 424 single punishment for both acts. Since the court lacked authority to punish Relator for one of the alleged acts of contempt, the entire judgment is tainted and void. Ex parte Turner, 478 S.W.2d 256 (Tex.Civ.App. Houston [1st Dist.] 1972). The Relator is discharged from custody.	{ "pile_set_name": "FreeLaw" }
515 So.2d 1351 (1987) SANDREW CONSTRUCTION and Royal Insurance Group, Appellants, v. Daniel D. DeFOURNY, Appellee. No. 87-179. District Court of Appeal of Florida, Second District. November 25, 1987. 1352 Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellants. T. Rankin Terry, Jr. of Terry & Terry, Fort Myers, for appellee. PER CURIAM. Sandrew Construction, Inc. (Sandrew) and its workmen's compensation carrier, Royal Insurance Group (carrier), appeal a final order striking the carrier's lien against appellee, Daniel C. DeFourny. We reverse. On October 5, 1981, DeFourny was injured while in the employ of Sandrew. Trusses manufactured by Naples Lumber & Supply Company, Inc. (Naples Lumber) were being lifted onto a building by a crane being operated on behalf of Shirley A. Nix and Ledford U. Nix, d/b/a Nix Crane Service, when a truss broke apart and fell on DeFourny. DeFourny's workmen's compensation claim against Sandrew and its carrier was settled by the carrier. Payments by the carrier have exceeded $30,000 and may be more as the medical expenses remain open pursuant to section 440.20(12)(a), Florida Statutes (1981). After DeFourny filed suit against Naples Lumber and the Nixes, the carrier filed a notice of lien pursuant to section 440.39(3)(a), Florida Statutes (1981), upon any recovery DeFourny may ultimately receive in the action. As the case was approaching trial, Naples Lumber settled with DeFourny for $7500. From these settlement proceeds, $750 was awarded to Sandrew and its carrier in satisfaction of the section 440.39 lien. The order distributing the proceeds specifically provided that the $750 should extinguish only the section 440.39 lien as to the $7500 collected from Naples Lumber and that Sandrew and its carrier retained "a lien on any further proceeds that may be recovered in this cause, the amount of which will be determined at that time." During the pendency of the suit, the Nixes' insurer, Iowa National Mutual Insurance Company (Iowa National), became insolvent and thus came under the care of the Florida Insurance Guaranty Association (FIGA) in accordance with the provisions of chapter 631, Florida Statutes (1981). As potential creditors of Iowa National, both DeFourny and the carrier filed claims with FIGA pursuant to section 631.181, Florida Statutes (1981). FIGA denied the carrier's claim as not being a "covered claim" as defined by section 631.54(3), Florida Statutes (1981). DeFourny subsequently moved to set aside the carrier's section 440.39 lien. The trial court granted DeFourny's motion and entered a final judgment striking the carrier's lien after concluding that "[t]o allow the lien for worker's compensaion (sic) benefits paid under Florida Statute § 440 to stand would defeat the statutory scheme of the Florida Insurance Guaranty Association law, Chapter 631.50 through 631.70, Florida Statutes, to 1353 prevent FIGA funds from being used to pay subrogation claims." This timely appeal followed. Sandrew and its carrier contend that the trial court erred in striking the lien because it is a claim against DeFourny and any funds he may ultimately recover in the suit, not a subrogation claim, or any other type claim, against FIGA. We agree. Generally technical words or phrases which have acquired a peculiar and appropriate meaning in law will be interpreted according to their fixed legal sense. See Davis v. Strople, 39 So.2d 468 (Fla. 1949). In this regard, a lien is a qualified right or a proprietary interest which may be exercised over the property of another. City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935). Subrogation, on the other hand, allows a party required to pay a legal obligation owed by another to step into the shoes of the injured party and assert the latter's original claim against the wrongdoer. See Blue Cross & Blue Shield, Inc. v. Ryder Truck Rental, Inc., 472 So.2d 1373 (Fla. 3d DCA 1985), rev'd on other grounds, 498 So.2d 423 (Fla. 1986). With these two definitions in mind, we now examine the provisions of section 440.39. Under certain circumstances, an employer or its carrier is permitted to institute suit against a third party tortfeasor in its own name. See § 440.39(4)(a), Fla. Stat. (1981). Had Sandrew or the carrier filed suit against the Nixes under this provision, any claim they would have had against the Nixes' insurer would have been properly classified as a subrogation claim. Neither the carrier nor the employer, however, brought suit against the third party tortfeasors, and upon DeFourny's filing suit against the third party tortfeasors, Sandrew and its carrier had no right of subrogation. The carrier exercised the only right it had under section 440.39 by filing its notice of payment of compensation and medical benefits. Section 440.39(3)(a) provides that this notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be the carrier's pro rata share. We find, therefore, that any claim the carrier has against funds which DeFourny may ultimately recover in the suit is a lien and not a subrogation claim. Furthermore, a statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute. Deltona Corp. v. Florida Public Service Commission, 220 So.2d 905 (Fla. 1969). Since the clear legislative intent behind the section 440.39(3)(a) lien is to avoid a double recovery, we see no reason why the definition of "covered claim" in section 631.54(3) and the prohibition against subrogation claims contained therein should operate to nullify that intent. Here, if DeFourny is ultimately able to prove that the Nixes are liable to him to the extent of their policy with Iowa National ($300,000), then FIGA will award him the $300,000 in damages. Should the trial court's order striking the carrier's lien be allowed to stand, DeFourny would stand to receive a double recovery to the extent that he has already received payments from the carrier. Finally, in construing two statutes courts have a duty, whenever possible, to preserve the force of both without destroying their evident intent. See Markham v. Blount, 175 So.2d 526 (Fla. 1965). Since we have determined that the definition of "covered claims" in section 631.54(3) applies to claims filed pursuant to the provisions of chapter 631 and not to workmen's compensation liens filed pursuant to section 440.39(3), both statutes can be given effect without destroying the evident intent of either statute. Only after DeFourny has established the Nixes' liability and collected from FIGA must the trial court determine the pro rata share, if any, of DeFourny's award that the carrier is to receive. See § 440.39(3)(a). It is at that time that the court may properly determine the extent, if any, to which the carrier's lien should apply against DeFourny's recovery. To strike the lien at this stage of the proceedings *1354 would be premature as the lien is neither a subrogation claim nor a claim of any other type filed against the receiver of the insolvent insurer under the provisions of chapter 631. We, accordingly, hold that although the prohibition against subrogation recoveries contained in section 631.54(3) justified FIGA's denial of the carrier's claim filed directly with FIGA pursuant to section 631.181, the prohibition cannot properly be applied to justify striking the carrier's lien filed pursuant to section 440.39(3)(a). We, therefore, reverse the trial court's order striking the carrier's lien and remand with instructions to reinstate the lien pending the final outcome of DeFourny's cause of action against the Nixes. Reversed and remanded with instructions. CAMPBELL, A.C.J., and SCHOONOVER and HALL, JJ., concur.	{ "pile_set_name": "FreeLaw" }
326 B.R. 294 (2005) In re ATLANTIC GULF COMMUNITIES CORP., Debtor. Joseph William Gorka and Laura Lee Larson, Plaintiffs, v. Michael B. Joseph, Chapter 7 Trustee, Defendant. Bankruptcy No. 01-01594, Adversary No. 04-55215. United States Bankruptcy Court, D. Delaware. June 17, 2005. 295 296 John D. McLaughlin, Jr., Wilmington, DE, for the Trustee. James C. Carignan, Pepper Hamilton LLP, Wilmington, DE, for the Plaintiffs. MEMORANDUM OPINION[1] MARY F. WALRATH, Chief Judge. This matter is before the Court on the motion for summary judgement filed by the Plaintiffs for a declaration that the estate has no interest in certain real property located in Port Charlotte, Florida, and, therefore, for an injunction prohibiting the chapter 7 Trustee from selling that property. For the reasons stated below, the Court will deny the motion for summary judgment and grant the Trustee's motion to sell the Debtor's interest in the real property, if any, by a quitclaim deed. I. BACKGROUND In 1958, the predecessor to the Debtor, General Development Corporation ("GDC") purchased a large tract of land in Port Charlotte, Florida, bordering the Myakka River. The State of Florida deems the Myakka River to be a navigable waterway and claims title to all property below the river's mean high water line. GDC subdivided the property and, in 1962, sold Lot 37 which overlooks the Myakka River to Darrel and Edith Duffey. The deed describes the property conveyed by metes and bounds pursuant to a plat map recorded in Charlotte County, Florida. Neither the deed nor the plat map specifically states that Lot 37 extends to the mean high water line of the Myakka River. Likewise, neither the deed nor the plat map states that GDC reserved title to any land between Lot 37 and the River or to any land that may accrete[2] to the Lot sold. Lots 35 and 36 were also sold and are now owned by Thomas J. and Karen L. Fero ("the Buyers"). At some point[3] land accreted from the Myakka River, creating an additional strip of land between Lot 37 (and Lots 35 and 36) and the Myakka River. As evidenced by an affidavit by the Charlotte County Appraiser's Office, Lot 37 is generally considered to be waterfront property and the owner of Lot 37 is taxed on the value of the accreted land. The Plaintiffs also assert that various improvements were made on the accreted land dating from 1973.[4] In 2002, Joseph William Gorka and Laurel Lee Larsen ("the Plaintiffs") purchased Lot 37. On May 1, 2001, Atlantic Gulf Communities Corp. ("the Debtor") filed a voluntary petition under chapter 11; the case was subsequently converted to chapter 7 on June 18, 2002. The Debtor is the successor to GDC. Michael B. Joseph was appointed 297 the chapter 7 trustee ("the Trustee"). On June 21, 2004, the Trustee filed a motion for authority to sell the land which had accreted to Lots 35, 36, and 37 to the Buyers (who own Lots 35 and 36) for $9,000 free of all interests pursuant to section 363(f) of the Bankruptcy Code. The Plaintiffs objected to the sale and filed the instant adversary proceeding seeking a declaration that the Trustee has no interest in the accreted land adjacent to Lots 36 and 37 ("the Disputed Property")[5] and, therefore, has no authority to sell it. On September 17, 2004, the Court entered an order authorizing the sale of the land that had accreted to Lot 35 and reserved ruling with respect to the Disputed Property. The Plaintiffs filed a Motion for Summary Judgment in this adversary proceeding on January 31, 2005. The Trustee responded to the Motion on February 17, 2005.[6] The matter has been fully briefed and is ripe for decision. II. JURISDICTION The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 157(b)(2)(K), (N) & (O). III. DISCUSSION A. Standard of Review Summary judgment is appropriate when the matters presented to the Court "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Fed. R. Bankr.P. 7056; Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment has the initial burden of proving that there is no genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met this initial burden of proof, the non-moving party must set forth specific facts sufficient to raise a genuine issue for trial and may not rest on its pleadings or mere assertions of disputed facts to defeat the motion. Matsushita Electric Industrial Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (stating that the party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts"). The mere existence of a scintilla of evidence in support of the opposing party's position will not be sufficient to forestall summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. B. Declaratory Judgment The Plaintiffs argue that they are entitled to a declaration that they own the Disputed Property and that the Trustee has no interest in that property which he can convey to the Buyers. The Plaintiffs claim title to all the Disputed Property under Florida riparian law. See, e.g., Burkart v. City of Fort Lauderdale, 168 So.2d 298 65, 69 (Fla.1964) ("The plat, by placing the eastern boundary of the street contiguously along the water's edge, evinces an intent that the easement therein would continue to extend to the water's edge notwithstanding future accretion or erosion."); Ford v. Turner, 142 So.2d 335, 340 (Fla.Dist.Ct.App.1962) ("Generally the margin or bed of a stream, or other body of water constituting a boundary, continues which changes the location of the body to be the boundary notwithstanding any accretion or erosion of water. The boundary lines of land so located thus extends or restricts as that margin gradually changes or shifts by reason of accretion or erosion."). In response, the Trustee argues that the Plaintiffs have no claim to the Disputed Property. He asserts that the Debtor's predecessor only sold the property described within the metes and bounds of the description of Lot 37 in the deed and plat map, which did not include the mean high-water line of the Myakka River as a boundary. Therefore, the Trustee does not concede that Lot 37 ever shared a boundary with the Myakka River or that the Disputed Property accreted to Lot 37. Further, the Trustee notes that there is no evidence when the Disputed Property accreted, before or after the sale of Lot 37 by GDC in 1959. Therefore, the Trustee asserts that the Disputed Property continues to be owned by the estate. See, e.g., Miller v. Bay-To-Gulf, Inc., 141 Fla. 452, 193 So. 425, 428 (1940) ("[B]oth instruments of conveyance in this case contained very exact, full, complete and definite descriptions of the premises. . . . The disputed strip of land was not included in either conveyance and the appellants have shown no right to claim any right, title or interest in or to the premises."); Parish v. Spence, 149 So.2d 58, 63 (Fla.Dist.Ct.App.1963) (stating that where a body of water is not the boundary to a property, the contiguous landowner was not entitled to the accreted land). Therefore, the Trustee asserts that the Debtor's estate does have an interest in the Disputed Property and may convey it pursuant to section 363(f)(4). At a minimum, the Trustee argues that the Plaintiffs have not established that they own the Disputed Property. With respect to the accreted land to Lot 36, in particular, the Trustee notes that there is a dispute as to the proper survey of that accreted land. Therefore, the Plaintiffs have not established that they are the rightful owners of it; only that there is a dispute. Since the matter is before the Court on a Motion for summary judgment, the Court may not decide it if there are genuine issues of material fact. In this case there are. It is material when the accretion arose because, if it arose before the conveyance by the Debtor's predecessor, then the conveyance which is in metes and bounds did not include it. Further, there is a factual dispute as to exactly what land accreted to what lot. Thus, the Court is unable to grant summary judgment for the Plaintiffs and cannot declare that the Plaintiffs own the Disputed Property. C. Sale of Property under Section 363 The Plaintiffs argue, therefore, that the Court cannot grant the Trustee's motion to sell the Disputed Property until it is determined that the Trustee owns that property. The Trustee disagrees. Section 363(b) of the Bankruptcy Code allows a trustee to sell property of the estate outside the debtor's ordinary course of business after notice and a hearing. 11 U.S.C. § 363(b)(1). Implicit within the statutory grant of authority to sell property under section 363, however, is the 299 requirement that the estate actually have an interest in the property to be sold. Cinicola v. Scharffenberger, 248 F.3d 110, 121 (3d Cir.2001) (noting that, before the trustee could sell estate property under section 363(b)(1), the estate was required to have an interest in that property); Anderson v. Conine (In re Robertson), 203 F.3d 855, 863 (5th Cir.2000) (holding that trustee could not sell property owned by debtor's former spouse in which debtor had no interest). Therefore, the Plaintiffs assert that the Court must determine whether the estate has any interest in the Disputed Property before allowing any sale of that property. The Trustee argues that he need not establish conclusively that the estate owns the Disputed Property because (1) he is not selling the Disputed Property but is only issuing a quitclaim deed which is essentially the right to assert an ownership interest in the Disputed Property and (2) section 363(f)(4) permits the estate to sell property which is subject to bona fide dispute. 1. Property of the Estate Section 541(a) of the Bankruptcy Code defines property of the estate, to include, inter alia, all legal and equitable interests of the debtor. 11 U.S.C. § 541(a)(1). See also, United States v. Whiting Pools, 462 U.S. 198, 204-05, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (stating that "§ 541(a)(1)'s scope is broad."). "In the absence of any controlling federal law, `property' and `interests in property' are creatures of state law." Barnhill v. Johnson, 503 U.S. 393, 398, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). a. Litigation rights Under Florida law, litigation rights (other than personal injury claims) are property interests that may be assigned. Notarian v. Plantation AMC Jeep, Inc., 567 So.2d 1034, 1035 (Fla.Dist.Ct.App.1990) (allowing the assignment of a statutory wrongful termination claim and stating that "the `assignability of a cause of action is the rule rather than the exception. . . .'") (citation omitted). See also Forgione v. Dennis Pirtle Agency, 701 So.2d 557, 559 (Fla.1997) ("Under Florida law, parties can assign causes of action derived from a contract or a statute."), overruled in part, Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755, 758 (Fla.2005) ("We therefore recede from the broad dicta in . . . Forgione purporting to prohibit the assignment of all legal malpractice claims. . . . Legal malpractice claims involving private placement memoranda may be assigned."). Under bankruptcy law, even speculative litigation claims are property of the estate. Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A v. Alvarez (In re Alvarez), 224 F.3d 1273, 1279-80 (11th Cir.2000) (holding that a legal malpractice claim arising from bankruptcy counsel's alleged negligence was property of the estate); Polis v. Getaways, Inc. (In re Polis), 217 F.3d 899, 902 (7th Cir.2000) ("Legal claims are assets whether or not they are assignable, especially when they are claims for money. . . ."); Browning Mfg. v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 207-08 (5th Cir.1999) (stating that debtors have "an express, affirmative duty to disclose all assets, including contingent and unliquidated claims.") (emphasis in original); In re Jordan, 63 F.2d 534, 535-36 (5th Cir.1933) (holding that the trustee was authorized to maintain a suit to quiet title to real property and remove clouds from the title); In re Anderson, 128 B.R. 850, 853 (Bankr.D.R.I. 1991) ("[C]ourts have held that Section 541 reaches all sorts of future, nonpossessory, contingent, speculative, and derivative interests."). Since litigation rights are property of the estate, they may be sold under 300 section 363. 11 U.S.C. § 363(b). The sale of a litigation claim, however, does not entitle the assignee to collect in contravention of any defenses to that claim; all that is conveyed is the right to prosecute the action and collect any potential judgment. See, e.g., Folger Adam Sec., Inc. v. DeMatteis/MacGregor, J.V., 209 F.3d 252, 261 n. 11 (3d Cir.2000) (holding that affirmative defenses to cause of action are not claims extinguished by a section 363(f) sale in bankruptcy). b. Quitclaim deed The issuance of a quitclaim deed is similar to the assignment of a litigation claim. In assigning a litigation claim, the assignor does not guarantee the merits of the action. Similarly, by issuing a quitclaim deed, the grantor does not guarantee that it has any actual interest in the property conveyed. Pierson v. Bill, 133 Fla. 81, 182 So. 631, 635 (1938) ("One who accepts a quitclaim deed is . . . conclusively presumed to have agreed to take the title subject to all risks as to defects or [e]ncumbrances. . . . The absence of express or implied covenants in a deed is equivalent to an express declaration therein that the grantor assumes to convey only his right or interest, whatever it may be, and that he declines to bind himself to do more."); Miami Holding Corp. v. Matthews, 311 So.2d 802, 803 (Fla.Dist.Ct.App.) ("It is well established that the execution of a quitclaim deed, without more, does not necessarily import that the grantor possesses any interest at all and if the grantor has no interest in the land described at the time of conveyance, the quitclaim conveys nothing to the grantee."). Thus, there is no discernable difference between the assignment of a litigation right and the execution of a quitclaim deed under Florida law. Consequently, the Court concludes that the Trustee may convey whatever interest the estate may have in the Disputed Property by quitclaim deed. Allowing the Trustee to sell whatever interest the estate has in the Disputed Property by quitclaim deed in this proceeding, and leaving any decision of who owns the Disputed Property to the Florida courts, is also consistent with the principles of voluntary abstention. 28 U.S.C. § 1334(c)(1). Once the estate's interest in the Disputed Property, if any, is sold by the Trustee, the Plaintiffs are free to adjudicate the merits of their claim in a local forum. 2. Effect of Section 363(f)(4) The Plaintiffs argue that allowing the Trustee to convey the Disputed Property under section 363(f), however, will adversely affect their rights. Section 363(f)(4) permits a trustee to sell property free and clear of liens and interests if such interest is in bona fide dispute.[7] Thus, the Plaintiffs argue that an order allowing the Trustee to convey the Disputed Property to the Buyers will eliminate any claim the Plaintiffs may have in that property. That might be true if the Trustee were selling the Disputed Property by general warranty deed. He is not. As noted above, the issuance of a quitclaim deed does not convey anything more than what the grantor has. Under Florida law, the issuance of a quitclaim deed suggests there is *301 a dispute as to the true ownership of that property and carries the risk that the grantor has no interest in the real property. Similarly, under bankruptcy law, the Trustee cannot convey what the estate does not own. Therefore, the issuance of a quitclaim deed by the Trustee is consistent with both Florida law and bankruptcy law and will not adversely affect the right of the Plaintiffs to assert that they, in fact, own the Disputed Property and that the Trustee had no interest which he could convey to the Buyers. IV. CONCLUSION For the foregoing reasons, the Court will deny the Plaintiffs' motion for summary judgment, will overrule the Plaintiffs' objection to the Trustee's motion to sell the Disputed Property and will enter an order approving the sale to the Buyers by quitclaim deed. NOTES [1] This Opinion constitutes the findings of fact and conclusions of law of the Court pursuant to Federal Rule of Bankruptcy Procedure 7052. [2] Accretion is defined as "[t]he gradual accumulation of land by natural forces, esp. as alluvium is added to land situated on the bank of a river or on the seashore." Black's Law Dictionary, 22 (8th ed.2004). See also Board of Trustees of the Internal Improvement Trust Fund v. Sand Key Assocs., Ltd., 512 So.2d 934, 936 (Fla.1987); Mexico Beach Corp. v. St. Joe Paper Co., 97 So.2d 708, 710 (Fla.Dist.Ct.App.1957). [3] There is no evidence when this occurred (before or after GDC conveyed the land). [4] The improvements included a seawall, pier and concrete walkway. [5] The Plaintiffs assert that there is a dispute as to what part of the accretion relates to Lot 37 (owned by them) and what part relates to Lot 36 (owned by the Buyers). [6] In addition to responding to the Plaintiffs' motion, the Trustee filed a motion for judgment on the pleadings. Because the Court considers matters outside the pleadings, the Court treats the Trustee's motion as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(c). [7] A "bona fide dispute" is not specifically defined by the Bankruptcy Code, but the requirement is satisfied whenever there is some factual or legal dispute as to the validity of a claim. Union Planters Bank, N.A. v. Burns (In re Gaylord Grain L.L.C.), 306 B.R. 624, 627 (8th Cir. BAP 2004) ("Clearly this standard does not require the court to resolve the underlying dispute, just to determine its existence.").	{ "pile_set_name": "FreeLaw" }
171 Cal.App.3d 400 (1985) 217 Cal. Rptr. 464 MARY HAYSSEN et al., Plaintiffs and Appellants, v. BOARD OF ZONING ADJUSTMENTS OF THE COUNTY OF SONOMA, Defendant and Appellant; LOREN BERRY, Real Party in Interest and Appellant. Docket No. A020841. Court of Appeals of California, First District, Division Three. August 22, 1985. 402 COUNSEL Joseph G. Baxter for Plaintiffs and Appellants. Tarkington, Carey, O'Connor & O'Neill, Tarkington, O'Connor & O'Neill, Chris A. Tarkington and Gregory P. Einhorn for Defendant and Appellant. Thomas R. Kenney and Kenney & Barbase for Real Party in Interest and Appellant. OPINION WHITE, P.J. PROCEDURAL HISTORY This is an appeal from a judgment of the Sonoma County Superior Court entered on September 10, 1982. Plaintiffs Mary Hayssen et al. (hereinafter appellants), a group of property owners in Sonoma County, filed a complaint against the Board of Zoning Adjustments of the County of Sonoma on February 26, 1979. Demurrer on the complaint was sustained with leave to amend. Appellants filed their first amended complaint on June 5, 1979. Demurrer was again filed and was sustained without leave to amend as to the first and second causes of action. The demurrer to the third cause of action was overruled. A full evidentiary trial was held on the matter by the court on February 4, 5, 9, 17 and 18, 1981. Notice of intended decision was filed on May 27, 1981. Final judgment, together with findings of fact and conclusions of law requested by appellants pursuant to California Rules of Court, rule 232, was entered on September 10, 1982. Motions to vacate judgment and for a new trial were filed on October 20, 1982. The order denying the motions was entered on December 3, 1982. This appeal was timely filed on January 3, 1983. (Cal. Rules of Court, rule 3(a) and (b).) FACTS On December 22, 1976, Loren Berry, the real party in interest in the instant case, applied to the County of Sonoma Planning Department for a 403 conditional use permit for the construction and operation of a sawmill on a 30-acre site near the rural community of Cazadero. The site was zoned to permit the operation of a sawmill pending the receipt of a use permit. Pursuant to Government Code section 65905 and Sonoma County Code section 203.1, subdivision (a), the Sonoma County Board of Zoning Adjustments gave notice of a public hearing on the use permit. The public hearing was scheduled for January 27, 1977. Notice consisted of publishing and posting. Publication occurred on January 11, 1977, in the Sonoma County Press Democrat, a newspaper of general circulation within the County of Sonoma. That same day, eight standard size notices of the projected use permit application and hearing were posted around the perimeter of the proposed sawmill site. All notices contained a technical error in the description of the subject property. The error consisted of designating one of the bordering roads to the property by its pre-1975 name (Austin Creek Road) rather than by its 1977 name (Cazadero Highway). A parallel road was designated as Austin Creek Road after 1977. No other error in the description of the subject property is alleged. None of the appellants attended the hearing. A neighboring property owner did attend, however. At the hearing, the board of zoning adjustments granted Berry a conditional use permit for the construction and operation of the sawmill. By its terms, the permit was made subject to revocation or modification by the board upon a finding of substantial detrimental impact to neighboring persons or property. Appellants are a group of property owners whose holdings adjoin or are in the vicinity of the disputed sawmill site. Appellants commenced the instant action against the board of zoning adjustments more than two years after the use permit was granted in 1977. Some appellants received actual notice of the proposed sawmill construction before and after the January 1977 hearing. One appellant received actual notice of the proposed sawmill in April 1977. Between 1977 and 1979, the owner of the site engaged in substantial preparatory construction activity on the site in reliance upon the use permit. Appellants in the court below alleged that a lack of proper notice as to the hearing violated their civil rights, giving rise to a claim of action under section 1983 of title 42 of the United States Code. After a full evidentiary trial, the court below held that appellants failed to establish a cause of action under title 42, section 1983 of the United States Code and awarded costs and attorney's fees to defendant board of zoning adjustments. Appellants appeal from this judgment. 404 Issues presented by the facts of this case are as follows: (1) whether notice by posting and publication in a land use adjudication is constitutionally adequate, or whether notice by mailing is required; (2) whether a finding of constitutionality is defeated by a technically deficient notice, where no prejudicial effect can be shown; and (3) whether appellants successfully asserted a cause of action under title 42, section 1983 of the United States Code. I. CONSTITUTIONALLY ADEQUATE NOTICE (1) The due process clause of the Fourteenth Amendment requires, "at a minimum ... that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing...." (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865, 873, 70 S.Ct. 652].) In Mullane, the United States Supreme Court articulated the standard to be applied in a due process challenge to adequacy of notice. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Id., at p. 314 [94 L.Ed. at p. 873].) (2) It is by now settled law that the property interests of adjacent landowners are at stake in a land use proceeding, and that procedural due process protections are therefore invoked. (See Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549 [99 Cal. Rptr. 745, 492 P.2d 1137].) It is also settled law that the granting of a conditional land use permit, involving as it does the "application of general standards to specific parcels of real property," is adjudicatory in nature and therefore subject to notice and hearing requirements. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 614 [156 Cal. Rptr. 718, 596 P.2d 1134]; San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 212 [118 Cal. Rptr. 146, 529 P.2d 570, 72 A.L.R.3d 973], app. dism. (1976) 427 U.S. 901 [49 L.Ed.2d 1195, 96 S.Ct. 3184].) These principles are embodied in state and local regulatory schemes. Government Code section 65905, as originally enacted in 1965, states in relevant part: "notice of hearing [for a conditional use permit] shall be given by notice through the United States Mails ... or by both publication in a newspaper of general circulation ... and posting said notice in conspicuous places close to the property affected." (Stats. 1965, ch. 1880, § 6, p. 4350.)[1] Sonoma County Code section 203.1, subdivision (a) provides for 405 a 10-day notice of use permit hearings by mail "or by publication in a newspaper of general circulation and posting in at least three (3) places on or near the property which was the subject of the hearing...." (3) The facts in the instant case indicate that notice of the land use hearing was published in a county newspaper of general circulation and was posted at 8 locations around the perimeter of the subject property 16 days prior to the actual hearing, thus exceeding then-current state and local requirements. The court below held that these publication and posting procedures fully met the "reasonably calculated to apprise" standard of Mullane. We affirm. In Mullane, the United States Supreme Court held that statutory notice of a judicial accounting by publication alone was insufficient as to known beneficiaries of a common trust fund whose addresses were on record. (Mullane, supra, 339 U.S. at pp. 318-319 [94 L.Ed. at pp. 875-876].) The rights of the trust beneficiaries were wholly cut off by the accounting procedure. (Id., at p. 311 [94 L.Ed. at pp. 871-872].) Under these facts, the Mullane court required notice by mailing. (Id., at p. 319 [94 L.Ed. at p. 876].) Appellants contend that since their mailing addresses were also on record with the county, notice by mailing was also required in this case. We note, however, that the Mullane decision requiring mailing was specific to the facts of that particular case. The Mullane court did not hold notice and publication to be per se constitutionally inadequate, nor did it hold notice by publication and posting to be inadequate in land use proceedings. Indeed, by announcing the flexible notice-reasonably-calculated-to-apprise standard, the Mullane court expressly approved a case-by-case determination of the sufficiency of a constitutionally required notice. This case-by-case determination was approved in a United States Supreme Court decision, Greene v. Lindsey (1982) 456 U.S. 444, 451 [72 L.Ed.2d 249, 256, 102 S.Ct. 1874]. The California Supreme Court has also expressly approved a flexible notice requirement. "We deliberately refrain from describing a specific formula which details the nature, content, and timing of the requisite notice. We do observe, however, that depending on (1) the magnitude of the project, and (2) the degree to which a particular landowner's interests may be affected, acceptable techniques might include notice by mail to the owners of record of property situate within a designated radius of the subject property, or by the posting of notice at or near the project site, or both." (Horn v. County of Ventura, supra, 24 Cal.3d at p. 618.) A case-by-case determination of the constitutional adequacy of notice thus continues to be the rule. 406 Appellants rely on Schroeder v. City of New York (1962) 371 U.S. 208 [9 L.Ed.2d 255, 83 S.Ct. 279, 89 A.L.R.2d 1398], for the proposition that notice by mail is required in land use permit proceedings. Schroeder involved a condemnation proceeding whereby the City of New York acquired water diversion rights to a river flowing by the plaintiff's property. The United States Supreme Court held that "in the circumstances of this case," posting and publication as required by statute did not meet the Mullane standard. (Id., at p. 211 [9 L.Ed.2d at p. 258].) The court therefore ruled that the plaintiff in that case could proceed with her compensation claim despite the tolling of the applicable statute of limitations. (Id., at p. 214 [9 L.Ed.2d at p. 260].) Schroeder, however, can be distinguished from the instant case in several important aspects. First, we note that Schroeder involved a condemnation proceeding in which statutory compensation rights were affected. (Id., at p. 210 [9 L.Ed.2d at pp. 257-258].) No such rights are at issue here. Appellants here applied to the court below for injunctive and declaratory relief, and are barred from asserting any damage claims at this stage in the proceedings. Second, as noted by the Schroeder court, the Mullane notice requirement as to legally protected interests "is obviously a vital corollary to one of the most fundamental requisites of due process the right to be heard." (Id., at p. 212 [9 L.Ed.2d at p. 259].) Appellants allege that under California law, the use permit hearing constitutes a final adjudication, depriving appellants of the right to enjoin the normal operation of the sawmill under a nuisance theory. However, under the terms of the conditional use permit, as noted above, appellants and others have a continuous and permanent right to be heard by the board of zoning adjustments as to any proposed revocation or modification of the use permit based on detrimental impact to their persons or property. Such postadjudicatory administrative relief was not available under the Schroeder or indeed the Mullane facts. Third, in Schroeder, the City of New York posted twenty-two notices along a seven- or eight-mile stretch of the river in the general vicinity of plaintiff's property. This posting was found to be insufficient to apprise the Schroeder plaintiff of the proposed condemnation proceedings. (Schroeder, supra, at p. 210 [9 L.Ed.2d at pp. 257-258].) By way of contrast, the property at issue here was surrounded by notices posted along all of the major roads leading from the proposed sawmill site to neighboring communities. The county could reasonably calculate that posted notices on public highways which adjoining property owners had to use in order to reach major stores or services would apprise them of the contemplated action. 407 Appellants also rely on Greene v. Lindsey, supra, 456 U.S. 444, to suggest that the United States Supreme Court now disapproves of posted notice altogether. In Greene, a Kentucky statute permitting service of process by notice posted on a tenant's door in an unlawful detainer action and eviction proceeding was found to be constitutionally inadequate as applied to tenants in a housing project. (Id., at pp. 445, 456 [72 L.Ed.2d at pp. 252, 259].) Appellant goes far beyond the holding of Greene in suggesting that the case bars all notice by posting under the Mullane standard. In Greene, the court found notice by posting unreliable because of evidence that such notices were often torn down by children and others in the housing project. (Id., at p. 453 [72 L.Ed.2d at p. 257].) No such evidence of notices being physically removed by nonparties has been introduced here. In addition, the Greene court looked to the magnitude of the interest involved, that is, the right of continued residence in the home, in reaching its determination that the posted notice was inadequate. (Id., at p. 451 [72 L.Ed.2d at p. 256].) We do not find the alleged noise easement asserted by appellants in the instant case to be the equivalent of the interest in continued residence in the home asserted by the Greene plaintiffs. Nor do we find the alleged noise easement to equal the interest in continued welfare entitlements to benefits in Goldberg v. Kelly (1970) 397 U.S. 254 [25 L.Ed.2d 287, 90 S.Ct. 1011], as appellant would suggest. In summary, we find that the court below was clearly within the boundaries of applicable federal and state authority when it found the posting and publication notice to be constitutionally adequate under the facts of the instant case, and we therefore do not disturb that finding. II. TECHNICALLY DEFICIENT NOTICE (4) Having held that notice by publication and posting is constitutionally adequate under the facts of the instant case, we now turn to the question of whether a technical deficiency in the notice defeats its constitutionality where no prejudicial effect is shown. The facts indicate that notice of the January 27, 1977, hearing erroneously designated one of the bordering roads to the proposed sawmill site by its pre-1975 name. In all other respects, the parcel was correctly described. The property was fully posted, with eight standard size notices placed around the perimeter. Former Government Code section 65801 states that "[n]o action... regarding any zoning matter by any ... administrative body ... shall be held void or invalid or be set aside by any court ... by reason of any error ... as to any matter pertaining to ... notices ... unless after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of was prejudicial, and that by reason of 408 such error the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error had not occurred or existed. There shall be no presumption that error is prejudicial or that injury was done if error is shown." (Stats. 1965, ch. 1880, § 6, p. 4346.)[2] Appellants argue that former Government Code section 65801 may not limit the scope of constitutional rights, nor do we disagree. However, since we do not find a constitutional right to notice by mailing in the instant case, appellant's argument is inapposite. We therefore turn to the question of whether prejudice resulted from the technical defect in the notice. The court below found that while the property was properly posted and notice of the hearing was regularly published, no appellant saw the posted or published notice, and therefore appellants were not misled by the error in the description of the property. Appellants cannot therefore assert that prejudice resulted from the technical error, or that a different result would have obtained if such error had not occurred or existed. The court below also found that both before and after the hearing date, persons residing on the named appellant's property, including a co-owner, acted as watchmen on the proposed sawmill site and were advised by Berry that he was in the process of building a sawmill. Actual notice of the proposed sawmill was received by another appellant in April 1977. There is thus little possibility that appellants would have been fatally misled by the incorrect designation of one of the bordering roads to the property in question if they had seen the notice. Between 1977 and 1979, the owner of the site engaged in substantial preparatory construction on the site in reliance on the use permit. Appellants thus had received both actual and constructive notice of the sawmill construction during the two-year period prior to the initiation of this suit. They therefore had and continue to have ample time to initiate proceedings with the board of zoning adjustments as to a proposed modification or revocation of the use permit. Since appellants did not rely on the notice, and in fact knew about the proposed sawmill construction on the site well in advance of its actual construction, and also have a continuous right of appeal to the board of zoning adjustments, we find that no prejudice to appellants' interests resulted from the technical error in the notice. Thus, technical error cannot be used to defeat our finding of a constitutionally adequate notice in the instant case. III. SECTION 1983 ACTION Finally, we turn to the issue of whether appellants successfully asserted a cause of action under title 42, section 1983 of the United States Code. 409 Section 1983 is a federal civil rights statute dating from 1871. It states in relevant part: "Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress." While section 1983 asserts a federal cause of action, the United States Supreme Court has clearly recognized that a state court can exercise jurisdiction over a section 1983 claim. (Maine v. Thiboutot (1980) 448 U.S. 1, 3, fn. 1 [65 L.Ed.2d 555, 558, 100 S.Ct. 2502].) Although early case law held that local governments were immune from suit under section 1983 (Monroe v. Pape (1961) 365 U.S. 167, 187 [5 L.Ed.2d 492, 505, 81 S.Ct. 473]) this holding was specifically overruled in Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 663 [56 L.Ed.2d 611, 618-619, 98 S.Ct. 2018]. In Monell, the United States Supreme Court concluded that a municipality or other local governing body was a person for purposes of section 1983 and could be sued as such "for monetary, declaratory, or injunctive relief." (Id., at p. 690 [56 L.Ed.2d at p. 635].) (5) There are two elements to stating a cause of action under section 1983. The plaintiff must first show a deprivation of a constitutional right, and secondly, must show that the defendant was acting under color of state law in depriving the plaintiff of this right. (13B Wright et al., Federal Practice and Procedure (2d ed. 1984) § 3573.2, p. 203.) As to the first element, section 1983 is not a source of substantive rights but provides a forum for a remedy only. A substantive right must be found in the Constitution or in federal law. (Ibid.; Chapman v. Houston Welfare Rights Org. (1979) 441 U.S. 600, 617-618 [60 L.Ed.2d 508, 522-523, 99 S.Ct. 1905].) The court below found that appellants did not establish a violation of the constitutional notice requirement, and we affirmed. Therefore, appellants have failed to establish the first element of a section 1983 cause of action, and we therefore need not address the second element. In summary, we find that the notice provided by defendant board of zoning adjustments meets constitutional standards and is not defeated by any technical error contained therein. We further find that appellant fails to establish a section 1983 cause of action. *410 The judgment of the court below is hereby affirmed. Scott, J., and Merrill, J., concurred. The petition of plaintiffs and appellants for review by the Supreme Court was denied October 30, 1985. NOTES [1] This code section was amended in 1984 to require notice by mail. (Gov. Code, §§ 65905, 65091, added by Stats. 1984, ch. 1009, §§ 28, 2.) However, statutes are not to be applied retroactively in the absence of a clear legislative intent. [2] Repealed in 1984, and replaced by Government Code section 65010, containing substantially similar language.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1493V UNPUBLISHED MELISSA HARDIN, Chief Special Master Corcoran Petitioner, Filed: February 11, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Philip James Roth, Jr., Marshall, Roth & Gregory, PC, Asheville, NC, for petitioner. Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On September 27, 2018, Melissa Hardin filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on September 28, 2015. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On February 7, 2020, Respondent filed a Rule 4(c) Report and Proffer in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report and Proffer at 1. Specifically, Respondent concludes that “petitioner’s 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). alleged injury is consistent with a shoulder injury related to vaccine administration (“SIRVA”) as defined on the Vaccine Injury Table.” Id. at 6. Respondent further agrees that “petitioner suffered the residual effects of her condition for more than six months.” Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2	{ "pile_set_name": "FreeLaw" }
NO. 07-10-0194-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E MAY 17, 2011 _____________________________ In the Matter of A.O. _____________________________ FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2009-763,299; HONORABLE LES HATCH, PRESIDING _____________________________ Opinion _____________________________ Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.1 Appellant challenges his adjudication of delinquent conduct and his commitment to the Texas Youth Commission (TYC) by contending 1) the trial court erred in denying his motion to suppress, 2) the evidence was factually insufficient to show that he participated in the offense which constituted delinquent conduct, and 3) the evidence was factually insufficient to meet one of the statutory requirements for commitment to TYC. We affirm the judgment and order. Motion to Suppress The State sought to have appellant adjudicated for engaging in delinquent conduct due to his particpation in a burglary of the A-Plus Storage facility on January 1 John T. Boyd, Senior Justice, sitting by assignment. 18, 2010. Appellant moved to suppress evidence connecting him to the offense because the police allegedly had no reasonable suspicion to stop the vehicle in which he was a passenger. The trial court overruled the motion. We review the trial court’s decision under the standard discussed in Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). It requires us to defer to the factfinder’s resolution of historical facts but enables us to review de novo interpretations and applications of the law. Id. at 493. We next note that an officer may detain a vehicle and its occupants when he has specific articulable facts which, taken together with rational inferences therefrom, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). With that said, we turn to the evidence of record. Officer David Mora testified that at approximately 2:00 to 3:00 a.m. on January 18, he observed a vehicle parked at the drive-through window of a Taco Bell restaurant. The business was closed, and its lights were out. He knew that a burglary had been committed at a Chicken Express restaurant half a block away two days earlier and that entry was gained via a drive-through window. He also knew from his dispatcher that there had been four or five burglaries reported within the last several hours, which number was rather unusual. Moreover, many of them involved gaining entry by breaking windows or prying open doors. Thus, he decided to investigate the matter. When the officer drove onto the parking lot of the restaurant, the other vehicle drove away. Mora then activated his lights and stopped the car. Inside of it were three males, including appellant, none of whom were carrying any identification. Several minutes later, there came a broadcast over Mora’s radio about a green sport utility 2 vehicle occupied by three or four persons and those individuals had been involved in a burglary. Mora heard the report and realized that the vehicle he had stopped matched the description of the vehicle in the broadcast. In Klare v. State, 76 S.W.3d 68, 77 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d), the court determined that the lateness of the hour, the fact a car was parked behind a closed shopping center, and prior burglaries in the area alone were not sufficient to provide reasonable suspicion for detention. However, here we have additional factors for the officer’s consideration. They include the location of the parked vehicle being at the drive-up window of a closed business as opposed to merely being in the parking lot and the fact that only two days previously at a nearby location, a fast food restaurant was burglarized via entry through the drive-up window. Moreover, the lights of the business were extinguished at the time. There was also a rash of burglaries occurring that night involving pry bars and breaking windows. Also, the vehicle pulled away when the officer drove up, suggesting that appellant and his colleagues had the car’s motor running. We believe these facts, taken as a whole, are sufficient to provide the officer with reasonable suspicion to believe that criminal activity was occurring or about to occur. See Amorella v. State, 554 S.W.2d 700, 702-03 (Tex. Crim. App. 1977) (finding reasonable suspicion when a car was parked next to a closed store late at night in a high crime area with the motor running and its trunk open, and the car drove away as the officer approached); Cronin v. State, No. 03-04-00266-CR, 2005 Tex. App. LEXIS 10450, at 15-16 (Tex. App.–Austin December 16, 2005, no pet.) (released for publication) (finding reasonable suspicion when the officer saw a pickup truck drive slowly out of the parking lot of a business that had been closed for several 3 hours, the truck appeared to come from behind the building, the officer had never seen vehicles in the parking lot after the restaurant was closed, it was late at night, and windows of a neighboring business had been broken five weeks earlier); Holland v. State, No. 05-04-00308-CR, 2004 Tex. App. LEXIS 7401, at 7-8 (Tex. App.–Dallas August 18, 2004, no pet.) (not designated for publication) (finding reasonable suspicion due to a vehicle being parked at a late hour at a closed shopping center and car wash where there had been burglaries and the behavior of the vehicle in driving forward and backward). Given these circumstances, the officer had reasonable suspicion that crime was afoot, and the trial court did not err in denying the motion to suppress. Sufficiency of the Evidence of Delinquent Conduct Appellant next argues that the evidence was factually insufficient to show that he was a participant in the burglary because no one saw his face, there was no forensic evidence, and no stolen property was found on his person or in the vehicle in which he was riding. We disagree. Although juvenile proceedings are civil matters, the standard applicable in criminal matters is used to assess the sufficiency of the evidence underlying a finding that the juvenile engaged in deliquent conduct. In re I.A.G., 297 S.W.3d 505, 507 (Tex. App.–Beaumont 2009, no pet.); In re L.A.S., 135 S.W.3d 909, 913-14 (Tex. App.–Fort Worth 2004, no pet.); In re M.C.L., 110 S.W.3d 591, 594 (Tex. App.–Austin 2003, no pet.). This is of import since the Court of Criminal Appeals recently negated the existence of a factual sufficiency review in criminal matters. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Since then, other courts have held that only the legal sufficiency standard applies in juvenile proceedings. In re M.C.S., 327 S.W.3d 4 802, 805 (Tex. App.–Fort Worth 2010, no pet.); see also In re M.L.C, No. 11-09-00081- CV, 2011 Tex. App. LEXIS 598, at *1 (Tex. App.–Eastland January 27, 2011, no pet.) (citing M.C.S. and applying only the standard applicable to questions of legal sufficiency). And, rather than amend the nature of his issue in his supplemental brief (that he filed after Brooks), appellant simply requested that we apply the civil factual sufficiency standard. This we decline to do given Brooks, M.L.C., and M.C.S. and, therefore, find that appellant has waived his complaint.2 Sufficiency of the Evidence to Support Disposition Finally, appellant contends the evidence is factually insufficient to support the trial court’s order committing him to TYC. We again disagree. Unlike findings that a juvenile engaged in delinquent conduct, disposition orders are subject to a factual sufficiency review, and in conducting that review, we apply the civil standard. In re J.P.R., 95 S.W.3d 729, 731 (Tex. App.–Amarillo 2003, no pet.). That standard is discussed in Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998) and Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965), to which we refer the parties. Next, to place a child outside of his home or to commit him to TYC, the factfinder must determine that 1) it is in the child’s best interests, 2) reasonable efforts have been made to prevent or eliminate the need for the child’s removal from the home and to make it possible for the child to return to the home, and 3) the child cannot be provided 2 Yet, even if the civil factual sufficiency test was applicable, our review of the record would lead us to conclude that the evidence of record satisfied it. It consisted of an officer identifying appellant’s jacket, lettering thereon, and shoes as being those worn by one of the burglars captured on video, the similarity between the SUV used at the burglary and that in which appellant was found, the presence of a pry bar in the SUV with yellow on its tip akin to that found on the door of the burglarized business, and the presence of broken glass in the SUV. Whether to accept the credibility of the witnesses was for the jury to decide. However, the evidence of appellant’s involvement in the burglary was neither weak nor overwhelmed by the totality of any contrary evidence. 5 the quality of care and level of supervision that it needs to meet the conditions of probation in the home. TEX. FAM. CODE ANN. §54.04(i)(1)(A), (B) & (C) (Vernon Supp. 2011). According to appellant, the evidence is factually insufficient to show that he cannot be provided the quality of care and level of supervision he needs in the home. Therefore, we address only that element since it was the only one briefed. The record contains evidence that 1) during a three-year period, appellant was on probation twice and had eight referrals for acts of delinquent conduct, five of which were criminal offenses and the others for probation violations, 2) while on probation, appellant had fourteen positive tests for marijuana and one positive test for cocaine, 3) appellant did not complete substance abuse counseling, the Drug Court program, the Star IV program, or the managed care program, 4) appellant did complete and did well in programs with a secure, structured environment such as the Bridge program, a residential long-term treatment program, and the residential long-term aftercare program; however, he re-offended after completion of those programs, 5) appellant’s program options in Lubbock County had been exhausted and juveniles do not generally benefit from repeating them, 6) appellant was a “follower” who was influenced by his “negative peers,” drug use, and poor decision-making skills but improved in a structured environment, 7) appellant would be a poor influence on other youths undergoing treatment in various local programs if he was to attend them, 8) appellant’s parents provided insufficient supervision when he was at home, 9) appellant was running out of time because he would soon be considered an adult, 10) the TYC had more resources to teach appellant proper social and adult living skills and to help with his academic 6 needs,3 and 11) appellant continued to relapse into misbehavior when in his parent’s custody, despite his parents having taking parenting classes. The foregoing is evidence from which the trial court could have found that the child cannot be provided the quality of care and supervision he needs at home to meet the conditions of probation. See In re K.L.C., 972 S.W.2d 203, 206 (Tex. App.–Beaumont 1998, no pet.) (finding the evidence legally sufficient when there was no evidence that the juvenile’s parents would supervise her as needed to meet the conditions of probation after failing to do so regarding home detention). Admittedly, there was evidence that appellant’s mother had suffered and recovered from health problems and that his father modified his work schedule to enable him to be home on weekends. Yet, a factfinder need not accord those changes much weight when the juvenile is unwilling to be supervised, and the record more than supports the conclusion that appellant refuses to be supervised. Simply put, the evidence underlying the trial court’s decision is not weak. Nor does the evidence suggesting that appellant could obtain the requisite supervision and care at home overwhelm that to the contrary. Accordingly, we cannot accept the contention that the trial court’s finding lacks factually sufficient evidentiary support. All issues raise by appellant are overruled and the judgment is affirmed. Brian Quinn Chief Justice 3 Appellant was being schooled at home by his mother after he walked out of (and thus was expelled from) the alternative school or academy in which he was enrolled. 7	{ "pile_set_name": "FreeLaw" }
8 B.R. 946 (1981) In re MORWELD STEEL PRODUCTS CORPORATION, a Michigan Corporation, Debtor. Bankruptcy No. NG 75-260 B7. United States Bankruptcy Court, W.D. Michigan. February 11, 1981. 947 Running, Wise & Wilson, Richard W. Ford, Traverse City, for claimant. Hertzberg, Jacob & Weingarten, P.C., Dennis Kayes, Detroit, for debtor. NOTICE OF DEFECTS UNDER U.C.C.SUMMARY JUDGMENT DAVID E. NIMS, Jr., Bankruptcy Judge. Morweld Steel Products Corporation (hereafter Morweld) moves for partial summary judgment against Univox of California, Inc., (which was a partnership, Univox California Co., when this litigation began) in the course of proceedings to determine the indebtedness of either party to the other. The facts are complicated, involving proceedings in both this court and the Circuit Court for the County of Antrim, Michigan. Unlike most summary judgment proceedings, the court has voluminous files available not only consisting of the "pleadings" but also depositions, interrogatories, documents, etc. and the full transcript of the Antrim County Court trial. FACTS After sifting through vast amounts of available material, the court makes findings of material facts, keeping always in mind that Univox has a right to a full trial unless the court is satisfied that such a trial would add nothing to the proper disposition of this case. In February, 1974, Univox was awarded a contract to manufacture a "cable assembly" for the U.S. Army. Univox then found that Morweld was the only supplier of a certain type of a reel which was a major part of the "cable assembly." The Army contract with Univox specified that Morweld would manufacture the reels and it set forth drawings and specifications for these reels. These reels were to be sent by Morweld, located at Ellsworth, Michigan, to Essex Cable Manufacturing, Inc., in Chicago, Illinois, which would install the cable and then ship to Los Angeles, California, the location of Univox. On May 15, 1974, a purchase order for 6710 reels was sent to Morweld. The final price agreed upon after some problems and negotiations was $31.50 per reel. Maurice M. Taylor, president of Morweld, and hereafter referred to as Taylor, called Univox and stated there had been an equipment breakdown and Morweld needed money to remedy the situation immediately. Univox refused to make a loan to Morweld but agreed to loan $50,000.00 to Taylor and his wife with certain real property owned by them as collateral. This was a three month mortgage bearing interest of 10% after the due date. Maurice M. and Madeline R. Taylor were the sole stockholders and officers of Morweld. As an inducement for the loan, Morweld agreed to reduce its charge for a unit price to $30.50 or a $6,710.00 reduction over all. The mortgage was not timely paid, whereupon it was agreed that Morweld would grant a credit of $5.92 on each reel. This was done. There was present at the Morweld plant an employee of the government who was to inspect the reels before they were shipped to Essex and each shipping document bore a stamp that was signed by the inspector which stated that all items conformed to the contract. However, a deposition of the inspector indicated that the inspection was in many instances superficial. Although Univox does make the claim that Morweld falsified inspection reports to it, in its negotiations with the Army, it stated that it relied on the above inspections. It also claimed that no funds for inspections were allowed in the contract. Univox claims that Morweld knew that contract specifications were not met and for the purpose of this hearing I will assume this to be true. On July 22, 1975, Univox received a telegram from the government contracting officer notifying it that some reels failed to meet certain tests and that this "cast great doubt on acceptability of reels" produced by Morweld. The Army eventually rejected the reels, then accepted them at a reduced 948 price as "non-conforming" after negotiations with Univox. On December 1, 1975, an employee of the U.S. Army was at the Ellsworth plant of Morweld and, at that time, Maurice Taylor asked him "what's this he (Taylor) hears about failures of the 453*." The Army told Taylor of the defects. No notice was given by Univox of the defects nor was Morweld at any time invited to participate in the renegotiations between Univox and the Army. CHAPTER XI ARRANGEMENT PROCEEDINGS On February 12, 1975, Morweld filed a petition for an arrangement under Chapter XI in the United States District Court for the Western District of Michigan. By order dated February 13, 1975, that court authorized the debtor to operate under the control of the court as a debtor in possession. On March 20th a creditors committee was appointed and a Plan of arrangement was filed on May 5, 1975. A plan was accepted by the creditors in June and an order was entered confirming the plan on August 20, 1975. Notice of confirmation was served August 26, 1975, and on August 27th the United States filed a notice of appeal to the U.S. District Judges. Under the plan as confirmed, payment to creditors was to be by a set schedule. The court was to retain jurisdiction over Morweld until all controversies and disputes involving creditors of the debtor and claims filed or affected by the proceedings were resolved. On September 9, 1976, the order of the bankruptcy judge confirming the plan was affirmed by the Hon. Noel P. Fox, Chief Judge of the District Court. On November 5, 1976, the decision of Judge Fox was appealed to the Court of Appeals. July 6, 1977, a petition for adjudication of Morweld was filed because the payments called for under the plan were not being made. On August 2, 1977, an order was entered adjudicating Morweld a bankrupt and a trustee in bankruptcy was appointed. The trustee qualified by filing his bond on August 4, and on August 15, a motion for a rehearing was filed. In September, the adjudication was set aside and a new plan was filed. This plan was eventually confirmed, but has not yet been consummated. PLEADINGS ON UNIVOX CLAIM Univox filed its proof of claim for damages of $129,308.93 on May 3, 1976. An objection to this claim was filed on December 17, 1976. January 21, 1977, an answer and counterclaim were filed to the objection and this counterclaim alleged that Univox's claim was not dischargeable under Sections 17(a)(2), (3), (4) & (8). On July 24, 1978, an amended objection was filed, raising the defenses of the claim being tardy and lack of notice, and also including a counterclaim. August 21, 1978, Univox filed a reply, alleging the counterclaim was not raised timely. Answer to this pleading was filed November 14, 1978. February 1, 1979, the court disallowed the original claim for being filed late. On February 4, 1980, Morweld filed its motion for a summary judgment. STATE COURT PROCEEDINGS On October 21, 1975, Univox brought suit against the Taylors in a State Circuit Court to foreclose on the mortgage set forth above. In their answer, the Taylors raised the defense of payment through the credits allowed to Univox by Morweld. At the trial held June 27 and 28, 1977, Univox claimed that because of the defects in the reels, Morweld was not entitled to the amounts represented by the said credits. The State court judge found in favor of Univox and found that, while no notice was given to Morweld of the defect, that such notice was excused because Morweld was "in bankruptcy" and because Morweld had been aware of the defects and had been notified of them by the Army in December of 1975. An appeal was taken from that decision and the trial court was affirmed. An application for a delayed appeal to the State Supreme Court was denied. 949 DISCUSSION I. Accelerated Judgment. Fed.R.Civ.P. 56 provides that a party seeking to recover upon a claim, counterclaim, or cross-claim may at any time move for a summary judgment in his favor upon all or any part thereof. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact, a summary judgment may be rendered on the issue. Bankruptcy Rule 756 provides that Rule 56 applies in adversary proceedings. The Advisory Committee's note to Bankruptcy Rule 756 states: "Rule 56 of the FRCP has frequently been deemed applicable in contested proceedings in bankruptcy cases." This case is especially appropriate for summary proceedings in order to economize on the time of the parties and the court. In Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir., 1962), the court stated: "In ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponents' are indulgently treated. "It has been stated that: `The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute . . . '" II. Necessity of Notice. 1. Pre U.C.C. law Even before the enactment of the Uniform Commercial Code (hereafter U.C.A.), notice of defects was required. In Frank v. Brown, 255 Mich. 415, 238 N.W. 237 (1931), in a mortgage foreclosure suit, an intervenor sought to set aside an assignment of the mortgage, claiming it had been given in consideration of some foxes as to which the assignee had made fraudulent representations. A decree in favor of the intervenor was reversed on appeal. The court observed that although the intervenor discovered the alleged fraud in April, 1924, it made no complaint to the assignee prior to the filing of the suit, November 30, 1926. In Matchless Electric Co. v. Morley Brothers, 252 Mich. 144, 233 N.W. 202 (1930), defendants ordered 8,000 flashlight and automobile bulbs from plaintiff. Delivery was made December 10, 1927. On December 20, defendant examined the bulbs and found them to be 40% defective. It was not until February 4, 1928, that defendant finally wrote plaintiff advising of the result of the examination. The trial court granted a directed verdict for the plaintiff. The court stated at pp. 147-148, 233 N.W. 202: "It was defendant's duty to make such inspection as it desired, and to accept or reject the goods within a reasonable time. It claimed it ascertained by December 20th that as many as 40 per cent. of the bulbs examined were defective. No reason was shown for delay, and the notice of rejection on February 4th and 7th contained nothing which defendant had not discovered before December 20th. The time elapsing was clearly unreasonable and resulted in an acceptance of the goods as a matter of law. Foster v. Rowley, [110 Mich. 63, 67 N.W. 1077] supra; Sisson Lumber & Shingle Co. v. Haak, 139 Mich. 383, [102 N.W. 659]; Stone v. Frohlich, 168 Mich. 128, [133 N.W. 951]. "Aside from all other considerations, defendant's action in ordering the bulbs returned to it and continuing to hold them, after it had rejected and shipped them to plaintiff, was an act inconsistent with the ownership of plaintiff and constituted an acceptance in law. Kupfer v. Michigan Clothing Co., [141 Mich. 325, 104 N.W. 174] supra." 950 2. U.C.C. The U.C.C. was adopted in Michigan in 1962 and became effective January 1, 1964. P.A. Mich. Act 174, 1962. Sec. 2602, Mich.Comp.Laws Sec. 440. 2602 [Mich.Stat.Ann. Sec. 19.2602 (Callaghan 1975)] provides: "(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller." Again, Sec. 2606(1), Mich.Comp.Laws Sec. 440.2606(1) [Mich.Stat.Ann. Sec. 19.2606(1) (Callaghan 1975)] states: "Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or (b) fails to make an effective rejection (subsection (1) of section 2602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (c) does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him." Once there has been acceptance under Section 2606, "The buyer must pay at the contract rate for any goods accepted." U.C.C. Sec. 2607(1), Mich.Comp.Laws Sec. 440.2607(1) [Mich.Stat.Ann. Sec. 19.2607(1) (Callaghan 1975)] And again, after acceptance, "the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy " U.C.C. Sec. 2607(3)(a), Mich.Comp.Laws Sec. 440.2607(3)(a) [Mich.Stat.Ann. Sec. 19.2607(3)(a) (Callaghan 1975)]. The comments of the National Conference of Commissioners and American Law Institute sets forth the purposes of this Section, stating: " * The notification that saves the buyer's rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation." Note that the U.C.C. requires that the buyer notify the seller of the breach and the purpose of this notification is to open the way "for normal settlement through negotiation." The U.C.C. defines "notification" in Sec. 1201(26), Mich.Comp.Laws Sec. 440.120(26) [Mich.Stat.Ann. Sec. 19.1201(26) (Callaghan 1975)] as follows: "A person `notifies' or `gives' a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it." The comments of the National Conference and A.L.I. on this Section notes that the word "notifies" is new and adds, "This is the word used when the essential fact is the proper dispatch of the notice, not its receipt * ." "Reasonable time" is also defined by the statute, and after recognizing that the parties may agree as to what will be a reasonable time, provides in U.C.C. Sec. 1204(2), Mich.Comp.Laws Sec. 440.1204(2) [Mich. Stat.Ann. Sec. 19.1204(2) (Callaghan 1945)]: "What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action." 3. Post U.C.C. cases In Michigan Sugar v. Jebavy-Sorenson Orchard Co., 66 Mich.App. 642, 239 N.W.2d 693, lv. to appeal den. (1976), suit was brought to recover the purchase price for sugar. A counterclaim was filed for breach of implied warranty. The trial judge granted a summary judgment on plaintiff's suit and after trial allowed the counterclaim. The purchaser claimed that there was excessive pan scale in the sugar, an imperfection. Of 800 bags, 68 were returned and were replaced. The purchaser was aware of pan scale in other bags but it accepted them anyway. Shipment was in 1969. Apples processed by the purchaser were sold but not shipped until the spring of 1971. These were rejected and were sold by the purchaser at a loss. The court of 951 appeals reversed the holding of the trial court, finding that the notice was not within a commercially reasonable time under the U.C.C. This case was published in A.L.R.3d with an extensive annotation at 93 A.L.R.3d 363. This annotation covers the sufficiency and timeliness of notice under U.C.C. Sec. 2607. At page 368 the annotation states: "The notice provided for in this section is designed to allow the defendant seller an opportunity for repairing the defective item, reducing damages, avoiding defective products in the future, negotiating settlements, and protecting against stale claims." In view of the completeness of the said annotation, nothing would be gained by considering the many cases cited and discussed therein. In a case decided since Michigan Sugar v. Jebavy-Sorenson Orchard Co., Supra, Steel & Wire Corp. v. Thyssen Inc., 20 U.C.C.Rep. 892 (U.S.D.C., E.D.Mich., 1976) the buyer sued for damages caused by steel not conforming to its purchase order. Plaintiff first learned that the steel was too hard in late September of 1974. The best that plaintiff could show was that at some date between September 1974 and July 1975 notice was given of the defect. The court, in granting a summary judgment for the defendant, held that, "It is well settled that a plaintiff asserting a breach of warranty under the U.C.C. must plead and prove reasonable notice as a prerequisite of recovery." The court also held that the burden of proof was on the buyer. The court also listed the purpose of notice: "In determining whether industry practice should be held to be controlling in this case, it is helpful to look at the policies behind the notice requirement contained in UCC § 2-607(3)(a). One commentary identified three such policies: (1) To enable the seller to make adjustments or replacements or to suggest opportunities for cure; (2) to afford the seller an opportunity to prepare for litigation; and (3) to bring a finality to all claims. White & Summers, Uniform Commercial Code (1972), p. 344. Another commentary identified the same three policies. 3 Williston on Sales (4th Ed.), § 22-11, p. 304. It is stated in the Official Comment to § 2-607 that the rule requiring reasonable notice is designed `to defeat commercial bad faith'. All of these policies would be defeated if a group of buyers were allowed in effect to set their own standards as to when they have to notify their sellers of a breach. On the facts of this case, industry practice cannot excuse the delay in giving the defendant notice of the alleged breach." Inter alia, the district judge stated that the fact that the case would be tried without a jury was irrelevant in determining whether summary judgment was appropriate, citing 6 Moore's Federal Practice par. 56.02[7] and United States v. J.B. Williams Company, Inc., 498 F.2d 414, 430 n. 19 (2d Cir., 1974). The court also recognized that the notice requirement was more strictly enforced against merchants than consumers. Other recent cases holding that timely notice of deficiencies must be given by a buyer are, Lewis v. Valley, 476 F.Supp. 67 (W.D.Ky., 1979); Kopper Glo Fuel, Inc. v. Island Lake Coal Co., 436 F.Supp. 91 (E.D. Tenn., 1977); Cotner v. International Harvester Co., 260 Ark. 885, 545 S.W.2d 627 (1977); Voboril v. Namco Leisure World, Inc., 24 U.C.C.Rep. 614 (Conn.Sup.Ct., 1978). In the discussion of the notice requirement, 2 Anderson on the Uniform Commercial Code (2d Ed., 1971) 210 it is stated: "A buyer who has accepted the seller's tender of delivery must notify the seller of any breach. If such notice is not given the buyer is barred from asserting any remedy to which the breach would otherwise give rise. "The notice of a breach of warranty is in the nature of a condition precedent to the right of the warranty plaintiff to recover damages." Again at p. 216 on burden of proof: "The buyer has the burden of proving both the fact of having given notice and that it was timely given." Also at page 219: "The bringing of an action to recover damages for breach of warranty cannot 952 be regarded as the notice of breach contemplated by UCC § 2-607(3), for whether an action can be brought, that is, whether a remedy is available, is conditioned upon whether notice had been given of the breach. Consequently, where no notice is given prior to the bringing of the action an essential condition precedent to the right to bring the action does not exist and by hypothesis the buyer-plaintiff has lost the right to his remedy. "Under the pre-Code law there was authority that a buyer's conduct in promptly bringing an action against the seller for breach of contract was a sufficient notice. This view is in technical conflict with decisions holding that notice is a condition precedent to the right to sue, and it would appear that the obligation under the Code to act in good faith would require that the buyer not only give notice but do so under such circumstances that the seller might have the opportunity, if he desired to avail himself of it, to remedy his breach without the buyer jumping into a lawsuit." The 1980 Supplement also cites Pace v. Sagebrush Sales Co., 114 Ariz. 271, 560 P.2d 789 (1977) as authority that the filing of a counterclaim by a defendant buyer when sued for the purchase price was not a timely notice. 4. Standard Alliance Industries Inc. v. The Black Clawson Co., 587 F.2d 813 (6th Cir., 1978). Here, the plaintiff, a manufacturer of railroad car axles, purchased an automatic forging machine from defendant. Installation was completed by October 1967. Troubles started at once and plaintiff sent a letter to defendant outlining the machine's problems. For over five months, both parties labored to make the machine operable. On June 21, 1968, defendant ceased working on the machine. September, 1968, plaintiff sold its Standard Forgings Division and the purchasers also attempted to get the machine to work. The court action was filed in May of 1969. The trial court found for the buyer. Among other issues raised was that of notice, it being the claim of defendant that plaintiff's failure to report the machine's defects barred the suit. The district judge submitted the notice issue to the jury which found for the plaintiff. The trial judge refused to overrule the jury's decision and enter a judgment n.o.v. for the defendant. The appellate court in a unanimous decision stated at p. 823: "Moreover, inasmuch as section 2-607 operates as a condition precedent to any recovery, the burden of proof is on the plaintiff to show that notice was given within a reasonable time. Ehlers v. Chrysler Motor Corp., [88 S.D. 612], 226 N.W.2d 157, 159 (1975); Schnabl v. Ford Motor Co., 54 Wis.2d 354, 198 N.W.2d 161 (1972); L.A. Green Seed Co. of Arkansas v. Williams, supra, [246 Ark. 463], 438 S.W.2d [717] at 719-20." The Court then continues at p. 825: "We think that notice should have been given. Section 2-607 expressly requires notice of `any' breach. Comment 4 says that notice `need only be such as informs the seller that the transaction is claimed to involve a breach.' The express language of the statute and the official comment mandate notice regardless whether either or both parties had actual knowledge of breach. See Cotner v. International Harvester Co., supra. "We also note that this same result would take place under § 2-607's predecessor, section 49 of the Uniform Sales Act. Judge Learned Hand's oft-quoted words applying section 49 are equally applicable here: "`The plaintiff replies that the buyer is not required to give notice of what the seller already knows, but this confuses two quite different things. The notice `of the breach' required is not of the facts, which the seller presumably knows quite as well as, if not better than, the buyer, but of buyer's claim that they constitute a breach. The purpose of the notice is to advise the seller that he must meet a claim for damages, as to which, rightly or wrongly, the law requires that he shall have early warning.' 953 "American Mfg. Co. v. United States Shipping Board E.F. Corp., 7 F.2d 565, 566 (2d Cir. 1925), cited with approval in Columbia Axle Co. v. American Automobile Ins. Co., 63 F.2d 206 (6th Cir. 1933). See Eastern Air Lines v. McDonnell Douglas Corp., 532 F.2d 957, 971-972 (5th Cir. 1976); Bloch v. Eastern Mach. Screw Corp., 281 F. 777 (6th Cir. 1922); Champion Animal Food Co. v. L.B. Reich Distributing Co., 78 N.E.2d 180 (Ohio App. 1947). "An examination of the policy reasons which underlie 2-607 further support our view. Notice of breach serves two distinct purposes. First, express notice opens the way for settlement through negotiation between the parties. Comment Four, supra; Eckstein v. Cummins, 41 Ohio App.2d 1, 321 N.E.2d 897, 901 (1974). Second, proper notice minimizes the possibility of prejudice to the seller by giving him `ample opportunity to cure the defect, inspect the goods, investigate the claim or do whatever may be necessary to properly defend himself or minimize his damages while the facts are fresh in the minds of the parties.' Note, Notice of Breach and the Uniform Commercial Code, 25 U.Fla.L.Rev. 520, 522 (1973). See Eastern Air Lines v. McDonnell Douglas Corp., supra, at 972-73. Compare 3 Williston on Sales (4th Ed.), § 22-11 and J. White & R. Summers, supra at 344 which identify three policy reasons behind the notice requirement: 1) To enable the seller to make adjustments or replacement or to suggest opportunities for cure; 2) To enable the seller to prepare for negotiation or litigation; and 3) To give the seller peace of mind from stale claims. See Steel & Wire Corp. v. Thyssen, Inc., 20 U.C.C.Rep. 892 (E.D. Mich.1976). See also Mattos, Inc. v. Hash, 279 Md. 371, 368 A.2d 993, 996 (1977) (protection against stale claims is the purpose of the statute of limitations, not the purpose of section 2-607(3))." The court also points out that the law holds merchants to higher standards of good faith than consumers. Page 827. The judgment for breach of warranty was reversed and the judgment on the counterclaim was affirmed. 5. Conclusion on notice. This court is bound by the decision of the Court of Appeals for this Circuit. Applying the reasoning of Standard Alliance Industries Inc. v. The Black Clawson Co., Supra, I can reach no other conclusion but that there is no issue of fact. No notice was given to Morweld by Univox of the alleged breach until the filing of the proof of claim on May 3, 1976. It is true that Univox brought its suit against the Taylors October 21, 1975, but this was a suit to foreclose a mortgage. While evidence was adduced to prove the breach in that suit, that trial was not held until June, 1977. The Court of Appeals in commenting on the pleadings indicated there was merely a complaint to foreclose a mortgage and an answer claiming payment. Thus, there was nothing in the pleadings to alert Morweld to the claimed defects. III. Res Judicata or Collateral Estoppel. 1. General It is the claim of Univox that this Court is bound by the decisions in the State Courts which held in favor of Univox and against the Taylors on the mortgage foreclosure proceedings. There is no indication that the failure to give the notice as required by the U.C.C. was raised as a defense. The only discussion in the decision of the trial judge was as follows: "The Defendant and Morweld were not notified of this noncompliance until sometime in Decemberthe precise date escapes mewhen witness Beller talked to the Defendant, Maurice Taylor. The Court finds that it was reasonable that Plaintiff not consult the Defendant regarding the rejections in view of the nature of the July notice received regarding noncompliance. In any event it appears that the Defendant and the corporation through Defendant were aware that there was a noncompliance with certain specifications, specifically the inability of the reel to withstand the drop-test." 954 The Court speaks of knowledge by Taylors and notice by the Army representative but no where is there a finding that Univox gave notice to Morweld nor is there any mention of the U.C.C. requirements of notice. The pleadings in the State proceedings have not been made available to this Court so whether the requirement of notice was raised in those pleadings is unknown as far as this record is concerned. As stated above, the Court of Appeals mentioned no such allegation when discussing the pleadings. 2. Res Judicata There is a distinction between res judicata and collateral estoppel in Michigan. In a recent decision the Michigan Court of Appeals discussed that distinction: "At the outset, we observe that defendants in their `motion for accelerated and summary judgment' have confused res judicata with collateral estoppel. Res judicata is inapplicable to the present situation because the two causes of action are different. See Howell v. Vito's Trucking and Excavating Co., 386 Mich. 37; 191 N.W.2d 313 (1971). In Herzog, the doctors sued for dissolution of the partnership whereas in this case the plaintiffs sued for monetary damages based on theories of breach of fiduciary relationship, breach of contract, and third-party beneficiary. As distinguished from res judicata, collateral estoppel bars relitigation of issues previously decided in the first action between the same parties where the second cause of action is different from the first cause of action. Howell v. Vito's Trucking and Excavating Co., supra, at 41-42, Jones v. Chambers, 353 Mich. 674, 680-681; 91 N.W.2d 889 (1958). See also Braxton v. Litchalk, 55 Mich.App. 708, 717-718; 223 N.W.2d 316 (1974). We note that the bar of collateral estoppel extends only to questions of fact that were `actually litigated' in the previous cause of action. Senior Accountants, Analysts & Appraisers Association v. Detroit, 399 Mich. 449, 458; 249 N.W.2d 121 (1976), People, ex rel. Director of Conservation v. Babcock, 38 Mich.App. 336, 346; 196 N.W.2d 489 (1972). We defined the requirement of being `actually litigated' in Sahn v. Brisson, 43 Mich.App. 666; 204 N.W.2d 692 (1972): "`A question has not been actually litigated until put in issue by the pleadings, submitted to the trier of fact for a determination, and thereafter determined.' (Citation omitted.) Sahn v. Brisson, supra at 670. "The trial judge in this opinion also confused res judicata and collateral estoppel. He found that res judicata did not bar plaintiffs' claims because the issue of the doctors' status was never actually litigated. If plaintiffs' claim was barred, this bar would occur by operation of collateral estoppel, and not res judicata." Sharp v. Two Point Associates, Ltd., 78 Mich.App. 180, 259 N.W.2d 416 (1977). Certainly in this case there can be no claim that the mortgage foreclosure against the Taylors is the same cause of action as a claim for damages due to breach of contract against Morweld. Therefore, there is no res judicata problem in this case. It must be kept in mind that there is some difficulties on nomenclature. Although, the Michigan Courts make a distinction between res judicata and collateral estoppel, this is not universal. "§ 397Terminology. "Although there are some cases that confine the term `res judicata' to that aspect of the doctrine which precludes the relitigation of the same cause of action, the term, in its literal meaning of a `matter adjudged,' is broad enough to include, in addition, the other aspect of the doctrine, which precludes the relitigation of the same facts or issues in a subsequent action on a different cause of action, and the term `res judicata' is, indeed, so used in numerous cases. In this respect, it has been declared that if a party is barred from relitigating a matter, it can make little difference to him by what name the lethal doctrine is called. On the other hand, the confusion and looseness of thought resulting from the absence of distinctive terms to describe each aspect of the doctrine has been well pointed out. 955 "The term `estoppel' has frequently been used in connection with the doctrine of res judicata, not only with respect to the relitigation of particular issues in a subsequent action on a different cause of action, but also with respect to the relitigation of the same cause of action. In some cases, the term `estoppel by judgment' has been used to describe the effect of a judgment to preclude relitigation of the same cause of action, and the phrase, `estoppel by verdict,' to describe the effect of the former proceeding to preclude further litigation of the particular facts on which the jury necessarily made findings in the former action. The decisions have not, however, been uniform in this respect, and in some opinions the term `estoppel by judgment' has been used to describe the rule precluding the relitigation of particular issues in a subsequent action on a different cause of action. Sometimes, the term estoppel by record is so used. The more recent tendency is to describe the latter aspect of the doctrine of res judicata as a `collateral estoppel' or a `collateral estoppel by judgment,' as distinguished from the `direct estoppel by judgment' where the earlier and later causes of action are identical. "The doctrine precluding the relitigation of the same cause of action has also been referred to as the doctrine of merger, which, with respect to its primary function, bars subsequent actions on the original cause of action, but it is worthy of notice that certain matters unrelated to the doctrine of res judicata also arise in connection with the application of the doctrine of merger. "For convenience, the two aspects of the doctrine of res judicata have also been referred to as `claim preclusion' and `issue preclusion.'" 46 Am.Jur.2d Judgments Sec. 397 (1969). 3. Collateral estoppel a. Applicable law In a diversity case, State law determines the applicability of collateral estoppel, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 517, 82 L.Ed. 1188 (1938), Hackler v. Indianapolis & Southern Trailways, Inc., 437 F.2d 360 (6th Cir., 1971). While this is not a diversity case, the District Court would have had no jurisdiction over the proceedings except either by diversity or consent to jurisdiction. Here, by filing its proof of claim with the Court, jurisdiction has been consented to. Section 2(a)(7) of the Bankruptcy Act of 1898. Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966). Thus, it would appear that the same rule should apply in this case as in a diversity case and State law will apply. b. Mutualityprivity "A final Judgment on the merits, rendered by a Court of competent jurisdiction, is conclusive as to the rights of the parties and their privies * ." 46 Am.Jur.2d Judgments Sec. 404 (1969). Obviously the parties in our case were different. But, is Morweld a privy of the Taylors? There is no question that Taylors were the sole stockholders and officers of Morweld. "A judgment for or against an officer or director usually is not res judicata in favor of or against the corporation, but such a judgment may be conclusive in special circumstances where an identification of interest appears." 50 C.J.S. Judgments Sec. 764. It has been widely held ". . . that there is no `privity' between a corporation and its controlling stockholder for purposes of res judicata". A party has the right to appear in a suit and to defend himself even though he may have assisted in the defense of a case against another party in a previous case. Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009 (1912). In American Range Lines, Inc. v. Com'r of Internal Revenue, 200 F.2d 844 (2d Cir., 1952), the Second Circuit disagreed with a Third Circuit decision involving the sole stockholder of the taxpayer, stating at p. 845: 956 "We also agree with the Tax Court that the decision in the earlier suit does not here constitute res judicata or estoppel by verdict inasmuch as the parties to the two suits are not the same. As Mrs. Rogers availed herself of the corporate form for substantial business purposes, neither the taxpayer corporation nor Mrs. Rogers may insist, in tax litigation such as this, that the corporation should be disregarded to the end that the parties to the suits be deemed identical. We regard as inapposite cases holding that in some circumstances a stockholder may be bound by a prior adjudication in a suit brought by his corporation: The proposition that the corporation's acts may bind the stockholder for such purposes does not support the converse proposition." The claim that issues determined against the sole stockholders collaterally estop the corporation are based on the premise that the stockholders are the only parties with an interest in the corporation. This is not true. There are also employees, suppliers, customers and even communities that also have an interest in a corporation. In the case of Morweld, those having the primary interest at the time of the mortgage foreclosure proceedings were the creditors. A plan of arrangement had been confirmed and although the order confirming the plan was on appeal, no stay was issued. Under the plan, Morweld was still under the jurisdiction of the United States District Court. The consummation of the plan depended upon the success of Morweld and no rights of that corporation could be released by it except on approval of the U.S. District Court through a referee in bankruptcy or a U.S. District Judge. This same situation existed at the time of the State Court trial. 1 B. Moore's Federal Practice pp. 3135-3136 (2d Ed., 1980) states: "The doctrine of res judicata, as applied to the bankruptcy court in deciding whether a claim should be allowed, disallowed or subordinated, is subject to the paramount equitable powers of bankruptcy courts to prevent the perpetration of fraud and collusion. And privity between the bankrupt and the trustee is not so complete that a judgment, which binds the bankrupt, is always conclusive upon the creditors or their representative, their trustee. At times it is not." The plan of Morweld as accepted by the creditors provided for the continued retaining of jurisdiction by the Federal Court so that the rights of creditors be protected. No transfer of assets other than in the normal course of business would be effective without the approval of the Court. This would include any waiver of rights as to accounts receivable. At the time of the hearing in the State Court, the Taylors may have been the sole stockholders and the only officers of Morweld and may have been in control as to the day by day operations of the corporation, but they were otherwise very limited in their authority. I find as a matter of fact and law that there was no privity between the Taylors and Morweld at the time of the State Court action. Thus, there could neither be res judicata nor collateral estoppel as to Morweld's claim against Univox. c. Collateral estoppel The rule of collateral estoppel is set forth in Howell v. Vito's Trucking and Excavating Co., 386 Mich. 37, 191 N.W.2d 313 (1971), where the Court states at p. 42, 191 N.W.2d 313: "`On the other hand, where the subsequent action is based upon a different cause of action from that upon which the prior action was based, the effect of the judgment is more limited. The judgment is conclusive between the parties in such a case as to questions actually litigated and determined by the judgment. It is not conclusive as to questions which might have been but were not litigated in the original action. This is the doctrine of collateral estoppel.' "These controlling principles have been long and well recognized by this Court. Jones v. Chambers (1958), 353 Mich. 674, and authorities cited therein." See also Senior Accountants, Analysts & Appraisers Assoc. v. Detroit, 399 Mich. 449, 249 N.W.2d 121 (1976) (obiter dictum); Lilienthal v. City of Wyandotte, 286 Mich. 604, *957 282 N.W. 837 (1938); Jacobson v. Miller, 41 Mich. 90, 1 N.W. 1013 (1879); Local 98 v. Flamegas Detroit Corp., 52 Mich.App. 297, 217 N.W.2d 131 (1974), Lv. to App. granted 392 Mich. 793 (1974) but no further record in Mich.Reports. d. Was this issue of notice raised? I do not find any indication that the issue of notice by Univox was raised in the State Court nor was any mention made of the U.C.C. requirement for notice. The judge only found that no notice was required because of the "bankruptcy," the fact that Morweld was aware of the defect and that the Army notified Morweld of the defects in December 1975. In the unpublished opinion of the Mich. Court of Appeals dated April 19, 1979, there is no mention of notice. The Court stated at page 2 of its opinion: "This present action was commenced on October 21, 1975, when plaintiffs filed a complaint to foreclose the mortgage on the real property held by defendants for nonpayment of the mortgage debt. Defendants answered alleging payment but asserting no affirmative defenses." The Court concluded at p. 3: "We are convinced that since the viability of the credits as a method of payment for indebtedness was contingent upon the delivery of conforming reels, that the note was not paid through the grant of these provisional credits. Accordingly, the order of foreclosure was proper since the note was overdue and had not been paid. The issue of notice by buyer not having been presented in the State proceedings, there can be no collateral estoppel. CONCLUSION Having failed to give the notice required by the U.C.C., the buyer cannot now claim that the goods received and accepted were defective. The motion for summary judgment is granted and these proceedings will be set for trial solely on the question of damages on the counterclaim.	{ "pile_set_name": "FreeLaw" }
702 F.Supp. 543 (1989) MISSION NATIONAL INSURANCE COMPANY v. HARTFORD FIRE INSURANCE COMPANY. Civ. A. No. 85-6867. United States District Court, E.D. Pennsylvania. January 9, 1989. Cozen, Begier & O'Connor, Ronald B. Hamilton, Philadelphia, Pa., for plaintiff. Sweeney, Sheehan & Spencer, Thomas L. Delevie and Christopher P. Leise, Philadelphia, Pa., for defendant. 544 MEMORANDUM AND ORDER DITTER, District Judge. This declaratory judgment action concerns a dispute between two insurers as to their respective liabilities with regard to the destruction by fire of a construction site. Presently before me are the motion for summary judgment of defendant, Hartford Insurance Company, the company that insured the building contractor, and the cross-motion for partial summary judgment of plaintiff, Mission National Insurance Company, the company that insured the property owner. On November 10, 1983, Mission issued an "all-risk" policy covering all real and personal property to Diversifoods, Inc.[1] Diversifoods, thereafter, on June 1, 1984, entered into a contract with Dean Management, Inc. (DMI) for the construction of a "Luther's Bar-B-Q Restaurant" on property owned by Diversifoods in Mentor, Ohio. On July 1, 1984, DMI obtained a "builders' risk" policy from Hartford covering the buildings under construction at the Luther's construction site.[2] On May 13, 1985, the Luther's construction project was destroyed by fire. Diversifoods submitted a claim to Mission for its damages which Mission paid.[3] Mission then requested that Hartford participate in an adjustment and payment of the loss sustained to Diversifoods' property. Hartford, disclaiming liability under the policy issued to its insured, DMI, refused. Mission thereupon brought this action seeking a declaration that the policy of insurance issued by Hartford to DMI was in effect at the time of the fire and provides coverage for the damage to Luther's. Further, Mission seeks a declaration that the policy issued by Hartford to DMI is primary to the policy issued by Mission to Diversifoods. In opposing Mission's motion for summary judgment, Hartford contends that Mission has no right to proceed against it to recover under the policy it issued to DMI. Any right that Mission might have, Hartford argues, arises only by way of subrogation to the rights of its insured, Diversifoods. Since Diversifoods is not a named insured under the Hartford policy, and since the construction contract between Diversifoods and DMI, in any event, acts to bar any recovery Diversifoods might seek against DMI, Hartford contends that Mission can have no recovery against it for any damage Mission's insured, Diversifoods, suffered. In a letter brief to the court, however, Mission states that its claim is "not pursuant to any subrogation entitlement which it has, nor is it pursuant to any assignment which it has taken from its insured." According to Mission, its complaint is one "for a declaratory judgment asking this court to interpret the terms and conditions of two policies of insurance and declare whether they both provided insurance coverage for the damages sustained at the Luther's Bar-B-Que Restaurant ... and, if so, whether the Hartford 545 policy was primary or concurrent." Although not clear from its complaint, what Mission seeks is contribution from Hartford as an insurer of the same property which Mission insured under its policy to Diversifoods. Having paid its insured, Mission seeks to proceed against Hartford to recoup a portion of the payment it made to Diversifoods.[4] With regard to an insurer's right to contribution, the Third Circuit has noted: The right to contribution is predicated upon the principle that all insurers are equally liable for the discharge of a common obligation, and arises even though, for the obligation involved, the sureties are bound by separate instruments. The principle of contribution assumes the existence of two or more valid contracts of insurance covering the particular loss and the particular casualty in question. Commercial Union Ins. v. Bituminous Cas. Corp., 851 F.2d 98, 101 (3d Cir.1988) (quoting Couch on Insurance 2d § 62:151 (1983)). See Commercial Cas. Ins. Co. v. Knutsen Motor Co., 36 Ohio App. 241, 173 N.E. 241 (1930) (where two companies insure the same risk and one is compelled to pay the total loss, it is entitled to contribution from the other for the amount of its proportionate share). For an insurer to be entitled to contribution from another insurer, the policies in question must insure the same property, the same interest, and the same risk. Reliance Ins. Co. v. Allstate Indem. Co., 514 F.Supp. 486, 487 (E.D.Pa. 1981), aff'd, 681 F.2d 808 (3d Cir.1982). Mission's attempt to seek contribution from Hartford assumes that the policies cover the same interests. Although separate policies purport to be excess as to each other, it is only when the insured interests are the same in each that the "other insurance" provisions apply to determine which policy is primary and which policy is excess. Commercial Union, 851 F.2d at 103. Here, although the two policies cover the same property and the same risk, they do not cover the same interests. The Mission policy covers the interest of Diversifoods as owner of the Luther's construction site and also insures the interest of DMI as a contractor at the site. The Hartford policy, on the other hand, insures only DMI's interest as contractor in the buildings under construction at the Luther's site. Diversifoods is not named in the Hartford policy and its interest is not encompassed within the coverage of the policy. The two policies clearly cover different insureds and clearly protect two different insurable interests. Mission is, therefore, not entitled to contribution from Hartford for the loss suffered by Diversifoods. See Peerless Ins. Co. v. Bailey Mortgage Co., 345 F.2d 14 (5th Cir.1965) (proration of liability under contract of insurance is not available where the other insurance on the property is obtained by another party on a separate and distinct insurable interest); St. Paul Fire and Marine Ins. Co. v. Protection Mutual Ins. Co., 607 F.Supp. 388 (S.D.N.Y. 1985) (landlord's insurer could not obtain contribution from tenant's insurer because policies covered different insureds and different insurable interests); Reliance Ins. Co., 514 F.Supp. at 487 (buyer and seller have separable insurable interests and seller's insurer, therefore, could not compel buyer's insurer to contribute to seller's loss). Regardless of its right to contribution, Mission could proceed against Hartford should it demonstrate a right of subrogation derived from its insured, Diversifoods. Article 11.3.1 of the standard American Institute of Architects (AIA) agreement between Diversifoods and DMI provides: Unless otherwise provided, the Owner shall purchase and maintain property insurance upon the entire Work at the site to the full insurable value thereof. This insurance shall include the interest of the Owner, the Contractor, Subcontractors, *546 and sub-subcontractors in the Work and shall insure against the perils of fire and extended coverage and shall include "all risk" insurance for physical loss or damage including without duplication of coverage, theft, vandalism and malicious mischief. Article 11.3.6 provides that: The Owner and Contractor waive all rights against (1) each other and the subcontractors, sub-subcontractors, agents and employees each of (sic) the other, and (2) the Architect and separate contractors, if any, and their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to the Paragraph 11.3 or any other property insurance applicable to the work ... Based on these provisions, Hartford argues that Mission has no subrogation right derivative from its insured and, therefore, cannot proceed by way of subrogation against it. I agree. In Commercial Union, the Third Circuit considered a case involving facts similar to the one before me. In that case, an owner of a shopping center development and a contractor entered into a similar AIA agreement. 851 F.2d at 100. The owner obtained an "all risk" policy on the construction site and one of the subcontractors obtained specific peril coverage for a one-story building that it was constructing. Id. After the destruction of the building, the owner's insurer paid its insured and brought a declaratory judgment action against the subcontractor's insurer seeking a declaration that the insurer was liable for contribution or indemnity for the loss. Id. Considering the nature of the right to subrogation under New Jersey law and construing the AIA agreement before it, the Third Circuit concluded that the contract "operates to shift to the owner the ultimate risk of loss which is then transfered to the insurer for valuable consideration, leaving the insurer no right to proceed by subrogation against a subcontractor with respect to property loss." Id. at 101. The effect of article 11.3.6, thus, was effectively to abrogate any subrogation right of the owner's insurer against the subcontractor or its insurer. Id. I have uncovered no case law to suggest that the nature of the right to subrogation in Ohio is in anyway different than the nature of the right in New Jersey. I, thus, find the analysis in Commercial Union to be persuasive, particularly since the provisions in the AIA agreement are the same in both cases.[5] Therefore, I conclude that the provisions of the construction contract between Diversifoods and DMI abrogate any subrogation right of Mission against Hartford.[6] Since Mission has no right to subrogation or contribution against Hartford, I will grant Hartford's motion for summary judgment and deny Mission's motion for partial summary judgment. NOTES [1] The Mission policy provides coverage to Diversifoods for: The interest of the Assured in all property of every description owned or used by the Assured or hereafter erected, installed or acquired including while in the course of construction or erection. It further provides coverage for: The interest of contractors in new buildings or structures being built for the Assured while in the course of construction and when completed and any additions, alterations or repairs to the existing buildings and structures of the Assured. [2] The Hartford policy provides coverage to DMI for: A. The building(s) or structure(s) described herein while in the course of construction, erection, fabrication, repair or completion, including foundations, additions, attachments and all permanent fixtures belonging to and forming a part of said building(s) or structure(s). B. Temporary structure(s), materials, equipment and supplies of all kinds pertaining to the work being performed while at the job site; excavation, site preparation, landscaping and similar work provided that the value thereof is included in the amount insured and then only to the extent that replacement is made necessary to complete the project. C. Materials, equipment and supplies of all kinds pertaining to the work being performed, while the property is in transit. [3] Because the Mission policy had an aggregate deductible of $200,000, the total damages sustained by Diversifoods were not compensated. [4] Neither party has addressed which state's law should govern the question of Mission's right, if any, to subrogation or contribution. However, since the parties seem to have done so and since I have been shown no reason to do otherwise, I will assume that the law of Ohio governs the question of Mission's right to subrogation or contribution but that this law differs little from other state's general law with regard to these issues. [5] The fact that, in this case, the owner's insurer seeks to proceed against the insurer of a contractor rather than the insurer of a subcontractor as was the case in Commercial Union is of no moment since the provisions of the AIA agreement apply to contractors and subcontractors alike. [6] Even were there no waiver provision in the construction contract, the fact that Mission insured DMI's interest under the policy it issued to Diversifoods would bar its subrogation right against Hartford. Where there are two insureds under a contract and the insurer pays one insured the amount claimed as damages, no right of subrogation arises against a person who holds the status of an additional insured. Dow Chemical C. v. M/V Roberta Tabor, 815 F.2d 1037, 1043 (5th Cir.1987). An insurer cannot pay its insured for losses sustained and then seek to recover from a contractor who is named directly or indirectly as an additional insured in the same policy. Keystone Paper Converters, Inc. v. Neemar, Inc., 562 F.Supp. 1046, 1050 (E.D.Pa.1983). Under the policy Mission issued to Diversifoods, DMI had an insurable interest in the buildings under construction sufficient to qualify it as an additional insured, a fact which counsel for Mission conceded at oral argument. Having paid Diversifoods, its insured, Mission cannot proceed by way of subrogation to sue a co-insured. See South Tippecanoe School Building Corp. v. Shambaugh & Son, Inc., 182 Ind. App. 350, 395 N.E.2d 320 (1979).	{ "pile_set_name": "FreeLaw" }
290 So.2d 209 (1973) Jackie Howard MORROW v. STATE. 8 Div. 382. Court of Criminal Appeals of Alabama. August 28, 1973. Rehearing Denied September 25, 1973. 210 Barnett, Tingle & Noble, Birmingham, for appellant. William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State. TYSON, Judge. The Grand Jury of Madison County, Alabama, charged the appellant with unlawful possession and sale of Lysergic Acid Diethylamide in violation of Title 22, Section 258(21-24), Code of Alabama 1940, as amended. After the Jury's verdict found appellant guilty as charged, he elected to be sentenced under the Alabama Uniform Controlled Substances Act,[1] and judgment fixed punishment at six years in the penitentiary. Appellant's motion for new trial was denied. Phillip Weir testified that he was an employee of the Narcotics Division of the Huntsville Police Department. During the summer of 1970, he had been working as an undercover police officer buying narcotics in the City of Huntsville. On the day of appellant's arrest, July 3, 1970, Weir went to the apartment of an informer for the narcotics squad. Weir stated that the informer, Edward Otten, and his wife, Jackie, were present in the apartment when the appellant arrived, at approximately 7:00 p. m. According to Weir the following took place: "He came in and Edward said, `It's okay,' and I walked out then and Mr. Morrow came in and Eddie asked him did he have it and he said, `Yes, I have got it with me.' And he took it out of a brown bag, a sack like a tobacco pouch and walked to his left there to the kitchen table and laid it on the table. And Ed said, `How much is it,' and he said, `It's going to be $60.00 in all.' And 211 Otten turned around to me and said, `Can you let me have the $60.00 now,' and I said `Yes.' And I handed it to him and he handed it to Morrow. Otten said, `Do you mind if I check it out,' and he said, `No, go ahead.' They both sat down and I identified myself and arrested them both." The pouch contained plant material and ten pills which were turned over to Vann Pruitt of the Alabama Department of Toxicology and Criminal Investigations. Pruitt testified that in his opinion the active constituent of the tablets consisted of Lysergic Acid Diethylamide also known as LSD and the plant material was identified as Marihuana. The first witness for the defense was Bobbie Stapler. He testified that he had known appellant for seven or eight years and also knew Otten and Weir. He stated that in May of 1970 he had been at the Ho-Toy Club in Huntsville, where he had observed Otten start an argument with the appellant. Otten had invited the appellant outside where a fight had begun. Stapler further testified that he had heard Otten, who had gotten the worst of the fight, state to appellant, "I will get even with you, you son-of-a-bitch, one way or the other." The fight was allegedly over Otten's sister, Candy, who was with the appellant and whom he continued to date after the right. The appellant took the stand in his own behalf and stated that on or about June 10th, he had seen Otten again at the Ho-Toy Club and they had shaken hands. Otten gave appellant his phone number and invited him to come over some time. Around the first of July, appellant called Otten and was told to come over and they "would get some girls and have a pot party." Appellant's version of what transpired on his arrival was as follows: "I knocked on the door and Otten come to the door and told me to come in. You could smell marijuana smoke as quick as you walked in the door, but I didn't see Mr. Weir. Otten's wife was sitting on the couch with a small baby and Otten invited me in and I sat on the couch. I asked him where was the party and he said he was sending his old lady somewhere and the girls would be out later. We walked over to the table and sat down and he picked up that pouch and he asked me if I wanted some marijuana and I said I guess and he asked me if I had some nonfilter cigarettes and about that time Weir came out of the bedroom or whatever he was and I told him I didn't have a nonfiltered cigarette. And Weir said he had one, he took the tobacco out of the cigarette and started packing the marijuana up in the cigarette and when he did Mr. Weir threw his badge down on the table and took his gun to the side of my head and laid me down on the floor. Me and Otten both and handcuffed my hands behind me." He testified that the tobacco pouch was not his, and that it was lying on the dining room table when he first walked in. He denied selling any pills or Marihuana to either Otten or Weir. I Appellant first cites as error the action of the trial court in overruling his demurrer to the indictment. Appellant argues that the demurrer should have been sustained because the indictment contained alternative averments in the same count. The indictment reads (omitting formal parts): ". . . Jackie Howard Morrow. . . did unlawfully possess, transport, deliver, sell, offer for sale, barter or give away, to-wit: Ten (10) tablets containing Lysergic Acid Diethylamide (L.S.D.-25), to, to-wit: Edward Otten (etc.)...." It is well settled that when offenses are charged in the alternative in the same count of an indictment, each alternative must state a complete offense. Vann 212 v. State, 44 Ala.App. 664, 219 So.2d 649; Gilbreath v. State, 23 Ala.App. 162, 122 So. 309; Abercrombie v. State, 8 Ala.App. 326, 62 So. 966; and Title 15, Section 249, Code of Alabama 1940. In Clark v. State, 19 Ala. 552, the Supreme Court stated: "It has been repeatedly held by this court, that where a statute creates a new offence, all the law requires is a description of the offence in the indictment in the terms of the statute enacting it. [Cases cited]" Appellant was indicted under Title 22, Section 258(21), Code of Alabama 1940, which reads: "It shall be unlawful for any person to possess, transport, deliver, sell, offer for sale, barter, or give away in any form whatever in this state, lysergic acid diethylamide (LSD-25) . . . .' Having followed the wording of the statute, we hold the indictment to be sufficient.[2] Lucy v. State, 46 Ala.App. 484, 243 So.2d 756. II Appellant next argues that the trial court erred in allowing into evidence the Marihuana that was contained in the leather tobacco pouch along with the LSD. In Lackey v. State, 41 Ala.App. 46, 123 So.2d 186, cert. den. 271 Ala. 699, 123 So. 2d 191, this court said: "`As a general rule, articles, including those found at the scene of the crime, which are properly identified and which tend to show the commission of the crime or the manner in which it was committed, or to elucidate some matter in issue, are admissible in evidence for inspection and observation by the jury.' 22 C.J.S. Criminal Law § 709, p. 946." Even though the Marihuana is evidence of another distinct criminal act, it was admissible as relevant to the crime charged as being part of the same transaction, and therefore part of the res gestae. Lambert v. State, 48 Ala.App. 600, 266 So. 2d 812; Mason v. State, 259 Ala. 438, 66 So.2d 557; and Grant v. State, 250 Ala. 164, 33 So.2d 466. Appellant also objected to the action of the trial court in allowing Mr. Pruitt, the Toxicologist, to testify as to the effect on the human body of some "treated" Marihuana that he had furnished to the Police Department. The objection was on the ground that it was irrelevant and immaterial. The purpose of the testimony was to show that, although the cigarettes being smoked by the undercover agents smelled like Marihuana, the active constituents had been removed by Pruitt, and the remaining ingredients would have no effect on the person smoking it. This subject was first raised by the defense on cross-examination of Officer Weir and we deem it therefore a proper ground of inquiry. III The court in its oral charge to the jury stated: "Additionally, ladies and gentlemen, it has been shown in this case that the Defendant and a witness has been convicted of a crime involving moral turpitude and as to any such witness that testified, you are authorized to take into account that fact and the law says that as to any such witness you are authorized to disregard their testimony. You are not bound to do so, but you may do so if you see fit. That is as to any witness that you find has been convicted of a crime or some crime which involves moral turpitude." This part of the oral charge was excepted to by defense counsel. Here the trial court instructed the jury that they were authorized to disregard the testimony of a witness convicted of a crime involving moral turpitude if they saw fit, but they were not bound to do so. There was no error in this part of its oral 213 charge. Title 7, Section 434, Code of Alabama 1940. IV After the jury had begun its deliberations, there was a request by members of the jury to have the testimony of Officer Weir read back. Appellant objected to only a portion being read back unless all of Weir's testimony was read back. From the record: "BY THE COURT REPORTER: `Question: All right, sir. Could you tell us what took place when this Defendant arrived, please, sir? Answer: He came in and Edward said, "It's okay," and I walked out then and Mr. Morrow came in and Eddie asked him did he have it and he said, "Yes. I have got it with me." And he took it out of a brown bag, a sack like a tobacco pouch and walked to his left there to the kitchen table and laid it on the table. And Ed said, "How much is it," and he said, "It's going to be $60.00 in all." And Otten turned around to me and said, "Can you let me have the $60.00 now," and I said, "Yes." And I handed it to him and he handed it to Morrow. Otten said, "Do you mind if I check it out," and he said, "No, go ahead." They both sat down and I identified myself and arrested them both.'" In Autry v. State, 34 Ala.App. 225, 38 So.2d 348, this court stated: ". . . Where a jury itself requests that certain testimony be read over to them by the court reporter, to refresh their recollection concerning it, the emphasis on this portion of the testimony is already inherently present in the jury's mind, and certainly the mere rereading of the requested portion of the testimony, to clarify the jury's recollection thereof cannot add any emphasis not already present as to such testimony. . . .' In the instant case, we find the excerpt read back to be an accurate account of Weir's testimony, and therefore find no prejudice to the appellant. Supreme Court Rule 45; Title 7, Appendix, Code of Alabama 1940. Adams v. State, 46 Ala.App. 402, 243 So.2d 386, is not applicable here. V Appellant submitted thirteen written requested charges, all of which were refused. We have carefully reviewed each and find that they were either affirmative in nature or not properly predicated on the evidence in this case, or were fully and substantially covered in the trial court's oral charge. Title 7, Section 273, Code of Alabama 1940. We have carefully reviewed the entire record, as required by Title 15, Section 389, Code of Alabama 1940, and having found no error therein, the cause is due to be and the same is hereby Affirmed. All the Judges concur. NOTES [1] Title 22, Section 258 (25-60), Code of Alabama 1940, as amended 1971. [2] Cf. Tadlock v. State, 45 Ala.App. 246, 228 So.2d 859; Duin v. State, 47 Ala.App. 693, 260 So.2d 599, reversed on other grounds, 288 Ala. 329, 260 So.2d 602.	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT Nos. 10-12445; 10-13250; 10-13251 MAY 27, 2011 JOHN LEY ________________________ CLERK Agency No. 12-CA-22202 ROADWAY EXPRESS, INC., lllllllllllllllllllll Petitioner, versus NATIONAL LABOR RELATIONS BOARD, lllllllllllllllllllll Respondent. AMADEO BIANCHI, llllllllllllllllllllll Intervenor. ________________________ Petition for Review of a Decision of the National Labor Relations Board and Cross Application for Enforcement ________________________ (May 27, 2011) Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges. PER CURIAM: Roadway Express, Inc. (“Roadway”) and International Brotherhood of Teamsters, Local 769 (“union”) petition for review of a final National Labor Relations Board (“NLRB”) ruling. Because we conclude that (1) issue preclusion does not bar the General Counsel of the NLRB (“General Counsel”) from pursuing a claim against Roadway, and (2) substantial evidence supports the NLRB’s conclusions that the union breached its duty of fair representation (“DFR”) towards Amadeo Bianchi and that Roadway violated section 8(a)(1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), by discharging Bianchi, we deny appellants’ petitions for review. BACKGROUND In October 2001, Gerome Daniels, a former Roadway employee, was admitted into a hospital after he experienced chest pain while unloading a Roadway trailer. A few days later Daniels informed his union steward, Bianchi, that he had been injured at work. Bianchi helped Daniels file an injury claim. After investigation of the claim, Roadway discharged Bianchi because it believed he assisted Daniels in filing a fraudulent worker’s compensation claim. 2 Daniels and Bianchi grieved their discharges in union arbitration hearings; both were represented by union agent Donald Marr. Marr and Bianchi were long-standing political rivals within the union, having run against each other for office six times and having twice appeared before a union master to settle campaign disputes. Notwithstanding their apparent enmity, when at the end of the arbitration hearing the committee asked Bianchi whether the union had represented him properly and fully, Bianchi answered in the affirmative. Bianchi states in his briefs on appeal that he did so because he wanted to return to work without further delay. Without stating its reasoning, the arbitration committee denied both Daniels’s and Bianchi’s grievances and upheld their discharges from Roadway. Bianchi then filed unfair labor practices claims against Roadway and the union in a private lawsuit before a federal district court. The jury found in favor of Bianchi on his DFR claim,1 but this Court reversed, granting Roadway’s motion 1 As summarized by this Court in Bianchi v. Roadway Express, Inc., 441 F.3d 1278, 1281 (11th Cir. 2006) (per curiam), [t]he jury held for Bianchi against both Roadway and the Union, finding: (1) that Roadway had terminated Bianchi without just cause in violation of the [collective bargaining agreement]; (2) that the Union had breached its DFR by Marr’s handling of Bianchi’s grievance proceedings arbitrarily, discriminatorily and/or in bad faith; and (3) that the Union’s breach materially affected the outcome of Bianchi’s grievance hearing. 3 for judgment as a matter of law. See Bianchi v. Roadway Exp., Inc., 441 F.3d 1278, 1279 (11th Cir. 2006) (per curiam). We reasoned that Bianchi had waived any claim that Marr represented him in bad faith by failing to raise it before the arbitration committee. The General Counsel then filed before the NLRB an unfair labor practice complaint against Roadway and the union, asserting that Bianchi was wrongfully discharged on the basis of protected union activities and that the union breached its DFR towards Bianchi during his grievance proceedings. In March 2008, the ALJ dismissed the DFR claim against the union and upheld Bianchi’s discharge from Roadway. On review, the NLRB (1) affirmed the ALJ’s conclusion that issue preclusion did not bar the General Counsel from asserting a breach of the DFR as a basis for declining to defer to the arbitration results; (2) affirmed the ALJ’s findings that the arbitration results were not the product of a fair and regular proceeding and that Roadway violated section 8 of the NLRA by discharging Bianchi; and (3) reversed the ALJ’s finding that the union had not breached its DFR toward Bianchi. Accordingly, the NLRB awarded Bianchi seven years of backpay and ordered Roadway to reinstate him. Roadway and the union now petition for review of the NLRB decision. STANDARD OF REVIEW 4 We must accept the NLRB’s findings with respect to questions of fact if they are supported by substantial evidence on the record considered as a whole. See 29 U.S.C. § 160(e). “Substantial evidence is more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion.” Fla. Steel Corp. v. NLRB, 587 F.2d 735, 745 (5th Cir. 1979) (citations omitted) (internal quotation marks omitted). While this Court will not act as a mere enforcement arm of the NLRB, see BE &K Constr. Co. v. NLRB, 133 F.3d 1372, 1375 (11th Cir. 1997) (per curiam), we will not substitute our own judgment for the NLRB’s choice between two reasonable positions. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). DISCUSSION The threshold question is whether issue preclusion operates to bar the General Counsel from pursuing its DFR claim against Roadway in light of this Court’s ruling in Bianchi, 441 F.3d 1278, that Bianchi waived it. For issue preclusion to apply, both cases must involve the same parties or their privies. See EEOC v. Pemco Aeroplex, Inc. (“Pemco”), 383 F.3d 1280, 1285 (11th Cir. 2004). Whether a party is in privity with another for purposes of issue preclusion is a question of fact that we review for clear error. Id. We have noted that the requirement of privity is “particularly important where the party in the second 5 action is a governmental agency reposed with independent statutory power to enforce the law and having independent interests not shared by a private party.” Id. Congress vested the General Counsel with the independent authority to enforce the NLRA. See 29 U.S.C. § 153(d). Similarly, section 10(a) of the NLRA states that the NLRB’s authority to prevent unfair labor practices “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise . . . .” 29 U.S.C. § 160(a). Further, the NLRB has independent interests—while Bianchi’s interest is in seeking reinstatement and damages for the personal harm resulting from his discharge, the NLRB represents the “public[’s] interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee” when “fashioning unfair labor practice remedies.” Vaca v. Sipes, 386 U.S. 171, 182 n.8 (1967). To put it another way, the NLRB’s interest is in protecting the workforce as a whole by pursuing remedies that will deter future unfair labor practices. Whether those remedies would fully redress Bianchi’s individual injuries is irrelevant in this case. Thus, we conclude that the General Counsel of the NLRB and Bianchi were not in privity for purposes of invoking issue preclusion. See Pemco, 383 F.3d 1280 at 1283 (holding that the district court erred by applying issue preclusion against the 6 EEOC where employer had prevailed in a separate lawsuit brought by a number of individual plaintiffs alleging racial harassment). Next, we consider the record as a whole to determine whether substantial evidence supports the NLRB’s conclusion that the union breached its DFR towards Bianchi, despite a union arbitration decision to the contrary. Notwithstanding Bianchi’s statement at the end of the arbitration hearing that he believed Marr had represented him “properly and fully,” the NLRB concluded that Marr had “allowed his personal animosity towards Bianchi to undermine his defense of Bianchi’s grievance . . . .” The NLRB further stated that “the record demonstrates that Marr acted in bad faith . . . by deliberately misleading the [arbitration c]ommittee about crucial matters . . . .” “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190. The burden to establish a breach of DFR is “a substantial one.” Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206 (11th Cir. 1982) (quoting another source). Further, mere negligence is never sufficient to sustain a claim for breach of the DFR. Parkers v. Connors Steel Co., 855 F.2d 1510, 1521 (11th Cir. 1988). Nor are simple mistakes of judgment during the representation. Harris, 668 F.2d at 1206. In 7 Spielberg Manufacturing Co., 112 NLRB 1080, 1082 (1955), the NLRB explained that deference to an arbitration decision is warranted only where “the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and polices of the [NLRA].” The NLRB has refused to defer to an arbitration where it found a breach of the DFR, a conflict of interest, or hostility between the union and grievants. See Tubari Ltd., Inc., 287 NLRB 1273, 1273–74 & n.4 (1988). Here, substantial evidence in the record supports the NLRB’s conclusion that Marr’s representation of Bianchi was in bad faith. The NLRB found that Bianchi failed to disclose exculpatory information that would have aided Bianchi and that Marr purposefully persuaded the arbitration committee that Bianchi believed Daniels’s injury was not work-related but encouraged him to file it as such anyway. After careful review of the record and having heard oral argument on the matter, we hold that substantial evidence supports the NLRB’s conclusion that the union breached its DFR towards Bianchi in violation of section 8(b)(1)(A) of the NLRA. Thus, the NLRB did not err by refusing to defer to the arbitration committee’s decision. And finally, we consider the record as a whole to determine whether substantial evidence supports the NLRB’s finding that Roadway violated section 8 8(a)(1) of the NRLA, § 158(a)(1), by discharging Bianchi. The ALJ found that Roadway believed that Bianchi knowingly helped Daniels file a fraudulent work-injury report. The ALJ also found that Bianchi believed that report to be truthful and therefore had not engaged in misconduct in the course of his protected union-steward activities. Agreeing with the ALJ, the NLRB stated that “[t]he credited testimony establishes that Daniels told Bianchi that he was injured at work.” Thus, the NLRB concluded that Bianchi was acting within the scope of his protected union-steward activities when assisting Daniels. An employer’s conduct violates section 8(a)(1) of the NRLA if it has a reasonable tendency to interfere with employees’ section 7 right to “form, join or assist labor organizations.” Id. § 157; § 158(a)(1). The Supreme Court has said that an employer violates section 8(a)(1) where “the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and the employee was not, in fact, guilty of that misconduct.” NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964). An employer acts unlawfully by discharging an employee for misconduct arising out of protected activity when it is shown that the misconduct never occurred, despite the employer’s honest belief that it did. Id. at 23. 9 We conclude that substantial evidence in the record considered as a whole supports the NLRB’s conclusion. Despite Roadway’s honest belief that Bianchi had engaged in misconduct, it violated section 8 by discharging him on the basis of protected union-steward activities. For the foregoing reasons, we deny Roadway’s and the union’s petitions for review and enforce in full the order of the NLRB. PETITION FOR REVIEW DENIED, CROSS-APPLICATION FOR ENFORCEMENT GRANTED. 10	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-449 CR ____________________ ROBERT DOYL LASLEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 86618 MEMORANDUM OPINION (1) Robert Doyl Lasley was convicted and sentenced on an indictment for injury to a child. Lasley filed a notice of appeal on September 17, 2003. The trial court entered a certification of the defendant's right to appeal in which the court certified that this is a plea-bargain case and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court's certification has been provided to the Court of Appeals by the district clerk. On September 22, 2003, we notified the parties that the appeal would be dismissed unless an amended certification was filed within thirty days of the date of the notice and made a part of the appellate record. See Tex. R. App. P. 37.1. The record has not been supplemented with an amended certification. Because a certification that shows the defendant has the right of appeal has not been made part of the record, the appeal must be dismissed. See Tex. R. App. P. 25.2(d). Accordingly, we dismiss the appeal for want of jurisdiction. APPEAL DISMISSED. PER CURIAM Opinion Delivered November 6, 2003 Do Not Publish Before McKeithen, C.J., Burgess and Gaultney, JJ. 1. Tex. R. App. P. 47.4.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Ninth District of Texas at Beaumont ______________________ NO. 09-08-425 CR ______________________ MARVIN STACY SIMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Court No. 08-04030 MEMORANDUM OPINION On August 25, 2008, the trial court sentenced Marvin Stacy Sims as a prior felony offender on a conviction for burglary of a building. Sims filed a notice of appeal on October 1, 2008. The trial court entered a certification of the defendant's right to appeal in which the court certified that this is a plea-bargain case and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The district clerk has provided the trial court's certification to the Court of Appeals. On October 3, 2008, we notified the parties that we would dismiss the appeal unless an amended certification was filed within fifteen days of the date of the notice and made a part of the appellate record. See Tex. R. App. P. 25.2(f). The record has not been supplemented with an amended certification. Because the record does not contain a certification that shows the defendant has the right of appeal, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Accordingly, we dismiss the appeal for want of jurisdiction. APPEAL DISMISSED. DAVID GAULTNEY Justice Opinion Delivered November 19, 2008 Do Not Publish Before Gaultney, Kreger, and Horton, JJ.	{ "pile_set_name": "FreeLaw" }
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5119-13T1 APPROVED FOR PUBLICATION STATE OF NEW JERSEY IN THE INTEREST OF September 19, 2016 JUVENILE, I.C. APPELLATE DIVISION _____________________ Submitted September 12, 2016 – Decided September 19, 2016 Before Judges Sabatino, Haas and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1168-14 and FJ-13- 1228-14. Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for appellant/cross- respondent State of New Jersey (Paul H. Heinzel, Assistant Prosecutor, and Joshua D. Detzky, Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant I.C. (Jennifer L. Gottschalk, Designated Counsel, on the brief). The opinion of the court was delivered by HAAS, J.A.D. In this appeal and cross-appeal, we address the issue of whether a juvenile was entitled to credit on his suspended sentence for the time he spent in a residential community home program as part of his probationary sentence to the Juvenile Intensive Supervision Program ("JISP").1 We also consider whether the juvenile should have been granted credit on his sentence for the period during which he participated in the JISP following his completion of the community home program. Based upon our review of the record and applicable law, we hold that the juvenile was not entitled to credits for either of these periods. Therefore, we affirm the trial judge's decision denying the juvenile's request for credits for his time in the community home program, and reverse the judge's decision 1 As our Supreme Court observed in State in the Interest of K.O., 217 N.J. 83, 88 n.3 (2014), JISP is a statewide dispositional alternative to juvenile detention that exposes offenders to intensive rehabilitation techniques regarded as "more stringent than juvenile probation, but less rigid than detention or commitment." The Juvenile Intensive Supervision Program, (JISP), New Jersey Courts, http://www.judiciary.state.nj.us/probsup/jis p_intro.html (last visited [Sept. 12, 2016]). "JISP works cooperatively with the Family Court and community agencies to provide support services to assist participants and their families. These vital relationships help to connect participants with necessary education and health services that will enhance their potential for success." Ibid. The program includes the monitoring of required school or work attendance, community service, curfew requirements, substance abuse or mental health treatment, and victim restitution. Ibid. 2 A-5119-13T1 granting the juvenile credits for the period he participated in the JISP. I. The police arrested sixteen-year-old I.C. on December 25, 2012 for allegedly stabbing a victim in the arm with a steak knife. On that same date, the police charged I.C. with four acts of delinquency that, if committed by an adult, would have constituted second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (charge one); fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a) (charge two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (charge three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(d) (charge four). Following his arrest, I.C. was detained in custody at the Youth Detention Center. At the time of his arrest, I.C. was on probation as a result of a prior adjudication of delinquency. On January 15, 2013, the Monmouth County Probation Division charged I.C. with a violation of that probation because he had incurred new charges. Pursuant to a negotiated plea agreement, I.C. pled guilty on March 11, 2013 to second-degree aggravated assault (charge one) and to a violation of probation. As part of his plea agreement, the State agreed to dismiss the remaining charges in the December 25, 2012 complaint. The State advised I.C. that it 3 A-5119-13T1 would recommend that he be detained for a period of two years at the Jamesburg Training School for Boys ("Jamesburg"). However, the plea agreement provided that I.C. could seek a non-custodial sentence, specifically, a probationary term under the JISP. On April 15, 2013, the trial judge sentenced I.C. to two concurrent, two-year sentences in the custody of the Juvenile Justice Commission on the aggravated assault (charge one) and violation of probation charges. However, the judge suspended these custodial sentences and ordered I.C. to serve two concurrent, eighteen-month terms in the JISP. As a condition of this probationary term, the judge ordered I.C. to first attend and complete the Southern Residential Community Home program.2 The judge further ordered that upon I.C.'s completion of this 2 "[P]robationers" assigned to the all-male Southern Residential Community Home ("Southern" or "community home program") spend approximately five months in the program. N.J. Dep't of Law & Pub. Safety, Juvenile Justice Commission, Community Programs, Residential Community Homes, http: //www.nj.gov/oag/ jjc/residential_comm_southern_hm.html (last visited September 12, 2016). Upon entering the program, the juvenile is assessed and an Individualized Case Action Plan is developed. Ibid. Depending upon the juvenile's specific needs, the juvenile may participate in educational programs to enable him to earn a GED. Ibid. In addition, the juvenile may "further [his] education through [an] Employment and Support Work Program." Ibid. Probationers are permitted to go on "supervised shopping trips" and to other recreational facilities off campus when accompanied by staff. Ibid. The program is intended "to provide a continuum of services designed to meet the aftercare needs of each individual resident" and its "goal . . . is to reduce recidivism." Ibid. 4 A-5119-13T1 program, I.C. was to serve the rest of his probationary term at home in the JISP. At the time of sentencing on April 15, 2013, a placement was not yet available for I.C. in the community home program. Therefore, the judge retained I.C. in the detention center until April 18, 2013, when he began his program at Southern. Between the date of his arrest on December 25, 2012 and his placement in the community home program on April 18, 2013, I.C. spent 115 days in the juvenile detention center. On October 8, 2013, I.C. finished the program at Southern and returned home to complete the remainder of his eighteen- month probationary sentence in the JISP with electronic monitoring.3 As part of his probation, I.C. had to abide by a curfew, abstain from illegal drug use and consumption of alcohol, and attend an internship program for possible future employment. I.C. also agreed to "submit at any time to a search of [his] person, or places and things under [his] immediate control." I.C. lived with his family during his probationary period. On December 20, 2013, less than three months after returning home, I.C. went into the local high school without 3 Thus, I.C. participated in the community home program for 173 days. 5 A-5119-13T1 permission while carrying a knife. On March 20, 2014, the police arrested I.C. for this conduct and charged him with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (charge one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (charge two); fourth-degree possession of a weapon on school grounds, N.J.S.A. 2C:39-5(e)(2) (charge three); and fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a) (charge four). Because I.C. was on probation at the time of his arrest, I.C.'s JISP officer also charged him with a violation of that probation. On May 6, 2014, I.C. entered into a plea agreement and pled guilty to an amended charge of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (charge three) and to the violation of probation. In return for his plea, the State agreed to dismiss the remaining charges and to recommend that the judge impose the previously suspended two concurrent, two- year sentences at Jamesburg. Once again, defendant retained the right to seek a non-custodial sentence. On June 6, 2014, the trial judge4 entered a final adjudication of delinquency and directed that I.C. now serve his previously suspended two-year custodial sentence at Jamesburg on 4 The same trial judge presided at each proceeding involved in this appeal. 6 A-5119-13T1 the violation of probation. The judge also sentenced I.C. to a concurrent one-year term at Jamesburg on the weapons charge.5 The judge then turned to the issue of the appropriate credits due to I.C. against his two-year aggregate custodial sentence. The judge determined that I.C. was entitled to a credit of 115 days for the period he was in custody in a detention center between December 25, 2012, the date of his arrest on the charges that led to the imposition of the initial two-year suspended sentence, and the date he was placed in the community home program as part of his eighteen-month probationary term in the JISP. The judge also found that I.C. should receive an additional credit of seventy-nine days for the period he spent in detention before his sentencing on the current charges. These particular credits, which total 194 days, are not in dispute in this appeal. The judge denied I.C.'s request for an additional 173 days of credit against his custodial sentence for the time he spent at Southern. In so ruling, the judge relied upon our decision in State in the Interest of S.T., 273 N.J. Super. 436, 447 (App. Div.), certif. denied, 138 N.J. 263 (1994), where we held that a juvenile was not entitled to credit for time spent in a 5 At the time of sentencing, I.C. had been in custody in the detention center for seventy-nine days since the date of his arrest on March 20, 2014. 7 A-5119-13T1 rehabilitative sex offender program as part of "a probationary disposition." See also State in the Interest of C.V., 201 N.J. 281, 294 (2010) (holding that a juvenile was not entitled to credit for time spent in residential treatment programs as a condition of probation). However, the judge granted I.C.'s separate request for credit for the 163 days he was at home under the JISP with electronic monitoring. The judge reasoned that the conditions of I.C.'s participation in the JISP "parallel[ed] the restrictions of incarceration." Specifically, the judge stated that after he returned home from Southern, "I.C. was in an environment where . . . he had to wear the electronic bracelet, he had certain curfews, he had certain reporting . . . requirements." Because these requirements were stricter than those imposed under less intensive forms of probation, the judge determined that I.C. should receive 163 days of credit against his two-year custodial aggregate sentence for the time he participated in the JISP.6 6 Thus, the judge granted I.C. a total of 357 days credit against his aggregate two-year sentence to Jamesburg. On August 22, 2014, the judge denied I.C.'s request for additional credits and that decision is not a subject of the current appeal. 8 A-5119-13T1 Both I.C. and the State filed appeals contesting different aspects of the judge's decision.7 II. On appeal, I.C. argues that the trial judge "erred when [he] denied custodial credit for the time [I.C.] spent at the State-run residential facility because it was a condition of his JISP participation." In its appeal, the State contends that the judge incorrectly awarded I.C. credit for the time he spent at home in the JISP. As the Supreme Court observed with regard to adult sentences in State v. Hernandez, 208 N.J. 24, 48-49 (2011), "there is no room for discretion in either granting or denying credits." Thus, a challenge to an award or denial of credits constitutes an appeal of a sentence "not imposed in accordance with law." State v. Rippy, 431 N.J. Super. 338, 347 (App. Div. 2013) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)), certif. denied, 217 N.J. 284 (2014). Therefore, our review is de novo. State v. DiAngelo, 434 N.J. Super. 443, 451 (App. Div. 2014). 7 The State filed its appeal first, followed by I.C.'s cross- appeal. The appeal was originally listed on our Excessive Sentence Oral Argument calendar. However, after reviewing the issue presented, we ordered the parties to file briefs and listed the appeal on our plenary calendar. 9 A-5119-13T1 It is well established that like adult offenders, juveniles are entitled to "credit on the term of a custodial sentence for any time served in detention or court-ordered shelter care between apprehension and disposition." R. 5:21-3(e); see State in the Interest of W.M., 147 N.J. Super. 24, 26 (App. Div. 1977) (noting that it is "a matter of fundamental fairness that the juvenile receive credit for predisposition custody"); see also State v. Franklin, 175 N.J. 456, 472 (2003) (holding that juveniles are entitled to gap-time credit in appropriate cases). It is also "axiomatic" that credits can only be awarded for the days that an offender has been "in custody." State v. Evers, 368 N.J. Super. 159, 170 (App. Div. 2004); cf. State v. Boykins, ___ N.J. Super. ___ (App. Div. 2016) (slip op. at 10-11) (concluding that a defendant who committed a second offense while on bail awaiting trial on his first offense was "in custody" within the meaning of N.J.S.A. 2C:44-5(b) for purposes of determining whether he could be sentenced to an extended term, but noting that the defendant was not entitled to jail credit for the time he spent on probation or on bail prior to his trial on the second offense). Thus, an offender is not entitled to credit for time spent serving a probationary sentence. Evers, supra, 368 N.J. Super. at 170. 10 A-5119-13T1 Judges in the Family Part have great discretion in determining an appropriate disposition for a juvenile. C.V., supra, 201 N.J. at 295. After adjudicating a juvenile as delinquent, the judge may incarcerate the juvenile in a detention center or, as was the case here, place the juvenile on probation. Ibid. "Probation is a disposition that offers the [judge] a great amount of flexibility to achieve the [Juvenile Justice] Code's[8] rehabilitative goals." Id. at 296. Pursuant to N.J.S.A. 2A:4A-43(b)(3), a judge may [p]lace the juvenile on probation to the chief probation officer of the county or to any other suitable person who agrees to accept the duty of probation supervision for a period not to exceed three years upon such written conditions as the court deems will aid rehabilitation of the juvenile. "By granting the [trial judge] a vast amount of flexibility in setting the conditions of probation, N.J.S.A. 2A:4A-43(b)(3) allows the [judge] to construct requirements designed to secure appropriate behavior from the juvenile while obtaining the particularized rehabilitative and therapeutic help needed by the particular child." C.V., supra, 201 N.J. at 297. A. Here, the trial judge suspended I.C.'s initial two-year custodial sentence and placed him on probation in the JISP for 8 N.J.S.A. 2A:4A-20 to -90. 11 A-5119-13T1 an eighteen-month period. As a condition of that probation, the judge ordered I.C. to participate in Southern's community home program. In his cross-appeal, I.C. argues that, after I.C. violated his probation, the judge should have given him credit for the 173 days he had already spent at Southern. We disagree. In S.T., we rejected a similar argument. Supra, 273 N.J. Super. at 447. In that case, the juvenile was placed on probation for three years conditioned on the successful completion of an eighteen-month residential program at the Pinelands Residential Group Program ("Pinelands"). Id. at 439. Like the Southern program at issue in the present case, the focus of the Pinelands program was the rehabilitation of the juvenile offender. Id. at 446.9 The Pinelands program provided the juveniles placed there with counseling, academic courses, and vocational instruction. Ibid. The juveniles at Pinelands were permitted to join in staff-supervised shopping trips and recreational activities. Id. at 447. The juveniles also had to comply with the facility's rules of behavior. Id. at 446-47. Under these circumstances, we determined that the juvenile in S.T. "participated in the Pinelands program as a condition of probation, not as an incident of incarceration." Id. at 443. 9 The juveniles at Pinelands had been adjudicated as sex offenders. Ibid. 12 A-5119-13T1 Therefore, we held that the juvenile was not entitled to credit against his subsequent custodial sentence for the time he spent in this program. Id. at 447. In explaining our ruling, we stated: The[] parameters of participation in the Pinelands program accord with the purposes of the Code of Juvenile Justice. They are simply reasonable terms of a probationary disposition. Unless the disposition made by the Family Part judge purposely confined a juvenile to incarceration, such restrictions could not be considered custodial. Applied to the Pinelands program, where by definition all participants are juvenile probationers, it would be antithetical to the Code of [Juvenile] Justice and its emphasis on rehabilitation to determine these rules act to convert the program from one of treatment to one of custody. Accordingly, we refuse to reduce a custodial disposition for a probation violation by time spent at this residential probation facility. [Id. at 447.] Similarly, in C.V., the Court held that the juvenile was not entitled to credit for the time she spent in two similar residential programs. Supra, 201 N.J. at 294. The Court noted that "C.V., like S.T., served time in restrictive residential programs as a condition of probation" that "were meant to facilitate her rehabilitation." Ibid. Therefore, the Court concluded that the juvenile's placements in these programs did 13 A-5119-13T1 "not satisfy the intended concept of detention in Rule 5:21-3(e) to qualify for mandatory day-to-day credit." Ibid. The trial judge properly applied these precedents in this case and correctly determined that I.C. was not entitled to 173 days of credit against his two-year custodial sentence for the time he spent at Southern. As in C.V. and S.T., I.C. was placed at Southern as a condition of his probation and his custodial sentence was suspended. Southern developed an individualized case action plan for I.C., and he participated in an educational program. As a result, I.C. obtained his G.E.D. Although I.C. was restricted to the program's campus, he was permitted to accompany staff on field and shopping trips. Because I.C. was on probation rather than "in custody" while at Southern, he was not entitled to credit against his subsequent custodial sentence for the time he spent in this community program. Therefore, we affirm the judge's denial of I.C.'s request for these credits. B. Turning to the State's appeal, it asserts that the judge mistakenly granted I.C. 163 days of credit for the period after he returned home from Southern to serve the remainder of his eighteen-month probationary term in the JISP. We agree. As noted above, "JISP is a statewide dispositional alternative to juvenile detention." K.O., supra, 217 N.J. at 88 14 A-5119-13T1 n.3. While the "rehabilitation techniques" employed in the JISP are "more stringent than juvenile probation," they are "less rigid than detention or commitment." Ibid. Because the JISP is therefore not "detention or court-ordered shelter care," I.C. was not entitled to credit on his custodial sentence for the time he spent in the JISP. R. 3:21-3(e). Indeed, the restrictions placed on I.C. in the JISP were less restrictive than those imposed at Southern or at the residential facilities involved in C.V. and S.T., where the juveniles were housed away from home and could not leave the facilities without staff approval or an escort. Yet, as discussed above, their participation in these residential programs was deemed to be non-custodial for purposes of detention credits. Here, I.C. lived with his family after his release from Southern. He was not permitted to use illegal drugs or alcohol, had to abide by a reasonable curfew, and was required to participate in an employment internship program. While I.C. was subject to searches of his person and his home, and had to abide by other rules of behavior, these were normal requirements of probation designed to "aid [the] rehabilitation of the juvenile." N.J.S.A. 2A:4A-43(b)(3). Contrary to the trial judge's finding, these restrictions did not "parallel the 15 A-5119-13T1 restrictions of incarceration" and, therefore, I.C. was not entitled to credits for the time he spent at home in the JISP. The fact that I.C. was required to wear an electronic monitoring device does not change this result. We have previously held that a defendant is not entitled to jail credit for time spent participating on an electronic monitoring wristlet program as a condition of his pretrial release on bail. State v. Mastapeter, 290 N.J. Super. 56, 62-63 (App. Div.), certif. denied, 146 N.J. 569 (1996). Similarly, we have held that defendants who were sentenced to a home detention program where their physical location was monitored by electronic devices were not serving a "term of imprisonment" as required by N.J.S.A. 2C:40-26, a statute mandating jail terms for persons convicted of driving while their license was suspended for a violation of our drunk driving laws. State v. Harris, 439 N.J. Super. 150, 160 (App. Div.), certif. denied, 221 N.J. 566 (2015). Although he was required to maintain a reasonable curfew, I.C. was not on "house arrest" during his participation in the JISP. The monitoring device he wore did not restrict his movements. Indeed, I.C. was wearing the device when he carried a knife into a high school that he did not attend. Thus, the fact that I.C. was required to wear a monitoring bracelet did 16 A-5119-13T1 not convert his probationary term in the JISP to a custodial sentence entitling him to the award of credits. Finally, we briefly note that the judge also erred by attempting to compare the JISP to the adult Intensive Supervision Program ("ISP") because the two programs are not the same, and serve different purposes. The JISP is clearly a probation program designed as an "alternative to juvenile detention." K.O., supra, 217 N.J. at 88 n.3. On the other hand, the adult ISP "is essentially a post-sentence, post- incarceration program of judicial intervention and diversion back to the community." State v. Clay, 230 N.J. Super. 509, 512 (App. Div. 1989), aff'd o.b., 118 N.J. 251 (1990). It has been described as "a form of intermediate punishment between incarceration and probation -- for certain carefully screened non-violent offenders." Id. at 513 (emphasis added). Adult "ISP was designed to test whether an intermediate form of punishment, one that would be less costly than prison, but more onerous and restrictive than traditional probation, would achieve the criminal justice objective of deterrence and rehabilitation." New Jersey Judiciary Observes 20th Anniversary of ISP: Changing Lives Through Intensive Supervision, New Jersey Courts, http: //www.judiciary.state.nj.us/pressrel/2003/pr031030.html (last 17 A-5119-13T1 visited Sept. 12, 2106). Adult offenders earn "ISP T[ime] C[redit,]" rather than jail credits, for the days they spend in the ISP following their release into the community. State v. Adams, 436 N.J. Super. 106, 110 (App. Div.), certif. denied, 220 N.J. 101 (2014). In sum, we conclude that the trial judge erred in granting I.C. credit against his two-year aggregate custodial sentence for the 163 days he spent at home in the JISP. Therefore, we reverse this portion of the judge's determination and remand for the issuance of a corrected Juvenile Order of Disposition setting forth the correct number of credits due I.C.10 Affirmed in part; reversed in part; and remanded. We do not retain jurisdiction. 10 As noted above, I.C. was entitled to 194 days of credit, comprising the 115 days he spent in the detention center following his arrest on December 25, 2012 through April 18, 2013, and the 79 days he spent in the detention center following his arrest on March 20, 2014 through June 6, 2014, the date he was sentenced to Jamesburg. 18 A-5119-13T1	{ "pile_set_name": "FreeLaw" }
181 F.3d 826 (7th Cir. 1999) United States of America, Plaintiff-Appellant,v.Christopher R. Messino and Clement A. Messino, Defendants-Appellees. No. 99-1674 United States Court of Appeals, Seventh Circuit Argued May 13, 1999Decided June 22, 1999 Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 294--Suzanne B. Conlon, Judge. Before Bauer, Manion, and Kanne, Circuit Judges. Bauer, Circuit Judge. 1 Shortly before the ordered starting date of Christopher ("Dick") and Clement Messino's trial, the government announced that it intended to call William Underwood ("Underwood"), the Messinos' co-conspirator, as a witness. The Messinos objected on the grounds that Dick Messino's attorney had previously represented Underwood. The district court issued an order barring Underwood's testimony in order to remedy the conflict of interest. The government appealed the district court's order. We reverse and remand. I. Background 2 Dick and Clement Messino are brothers and former officers of the Chicago Police Department. On April 27, 1995, they were convicted of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846, and willfully making false declarations about income to the Internal Revenue Service, in violation of 26 U.S.C. sec. 7206(1). In addition, Dick Messino was convicted of obstruction of justice for attempting to influence the testimony of a grand jury witness, in violation of 18 U.S.C. sec. 1503, and Clement Messino was convicted of money laundering, in violation of 18 U.S.C. sec. 1956. On August 7, 1997, this Court reversed the convictions of the Messinos "due to an impairment of the defendants' rights to peremptory challenges." United States v. Underwood, 122 F.3d 389, 391 (7th Cir. 1997). 3 On remand, the district judge set July 20, 1998 as the deadline for filing pretrial motions other than motions in limine, and September 18, 1998 as the date to commence jury selection. On September 2, 1998, the government filed a supplemental Santiago proffer that set forth the proposed testimony of Underwood, the Messinos' co- conspirator. The Messinos responded with motions to bar Underwood's testimony on the grounds that Dick Messino's attorney, Marc Martin ("Martin"), had previously represented Underwood. On September 9, 1998, the district judge granted the motions and struck the government's supplemental Santiago proffer. The court's order stated in its entirety: 4 The motions of defendants [Dick] Messino and Clement Messino to bar the testimony of William Underwood are granted. The government did not disclose Underwood would be a witness, much less the key witness, nor seek to supplement its Santiago proffer until almost two weeks before trial. Pretrial motions were due July 20, 1998. See Order of July 8, 1998. The prejudice to defendants by this untimely surprise is clear. In addition, serious conflict of interest issues would be raised as to [Dick] Messino's counsel if this motion were not granted. 5 (Order of September 9, 1998.) 6 On September 10, 1998, the government filed a motion to reconsider the September 9 order barring Underwood's testimony. On September 18, 1998, the day that jury selection was set to begin, the government asked the district court to rule on the motion to reconsider, but the court declined. The court also denied the government's request for leave to withdraw the motion, and the government's request that the trial be stayed until the motion had been decided. In response to the government's emergency petition, this Court ordered the district court proceedings stayed the same day. (Order of September 18, 1998.) On September 28, 1998, we issued a writ of mandamus, directing the district court to "expeditiously rule on the government's motion to reconsider the order of September 9, 1998." (Order of September 28, 1998.) We also ordered that "all proceedings in the district court . . . other than those necessary to resolve the motion to reconsider . . . continue to be stayed." (Id.) 7 On October 15, 1998, and February 1, 1999, the district judge held evidentiary hearings to resolve the motion for reconsideration. At the hearings, Underwood waived any objection he might have to Martin's conflict of interest. Underwood also stated that he had no objection to being cross-examined by Martin at the Messinos' trial, or to Martin using confidential communications to formulate Dick Messino's defense. However, Dick Messino testified that he was unwilling to waive his right to conflict-free counsel. 8 On February 24, 1999, the district judge issued a Memorandum Opinion and Order denying the government's motion to reconsider. The judge explained that she had initially barred Underwood's testimony for two reasons: first, because the untimely supplemental Santiago proffer "posed a prejudicial surprise"; and second, because "not granting the motion would [have] result[ed] in serious conflict of interest issues as to Dick Messino's attorney." (Memorandum Opinion and Order of February 24, 1999 at 4.) However, the judge reasoned that "[t]he obvious prejudicial surprise in expanding the scope of the Santiago proffer on the eve of retrial, and the attendant disruption of defense pretrial preparations, ha[d] been mooted in a temporal sense by the Court of Appeals order staying retrial pending resolution of the government's reconsideration motion." (Id. at 7.) Nevertheless, the judge held that "the delay occasioned by the government's interlocutory appeal d[id] not remedy the conflict of interest dilemma raised by the underlying supplemental Santiago proffer." (Id.) Noting the complex nature of the case and the fact that Martin had represented Dick Messino in several related proceedings over the space of eight years, the judge found that it "would be a practical impossibility to appoint new counsel who has comparable experience and knowledge of this case." (Id. at 14.) As a result, the judge held that disqualifying Martin "would unreasonably burden Dick Messino's Sixth Amendment right to effective assistance of counsel and would adversely affect his right to a fair trial." (Id.) The judge also noted the possibility that it would be necessary to call Martin as an impeachment witness if Underwood's testimony contradicted unprivileged statements he had made to Martin in the past. (Id. at 12.) However, she ruled that no conclusive determination could be made prior to Underwood's testimony at trial. (Id.) 9 The government timely appealed both the order barring Underwood's testimony and the denial of the motion to reconsider. II. Discussion 10 The district judge's Memorandum Opinion and Order makes clear that she is barring Underwood's testimony because of the conflict of interest that such testimony would create, and not because the government's late submission of the supplemental Santiago proffer was potentially prejudicial.1 In addition, the government does not dispute the district court's finding that Underwood's testimony would create a conflict of interest for Martin. Therefore, the only issue on appeal is whether it was proper for the district court to exclude Underwood's testimony in order to eliminate Martin's conflict of interest. This issue is composed of two parts: (1) is it ever within a district court's discretion to exclude testimony in order to resolve a conflict of interest, and, if so, (2) did the district court abuse that discretion in this case. 11 Whether a district court may ever exclude testimony to resolve a conflict of interest is a question of law that we review de novo. Under the Federal Rules of Evidence, district judges are clearly vested with some discretion to exclude evidence. Rule 402 states that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority." Fed. R. Evid. 402. Rule 403 adds that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. Thus, while creating a presumption of admissibility for relevant evidence, the Rules delineate a zone of discretion within which judges may exclude evidence. Furthermore, it bears noting that Rule 403 authorizes the exclusion of evidence not only to avoid prejudice, but also for a host of other prudential reasons. 12 The government, citing United States v. Condon, 170 F.3d 687, 689 (7th Cir. 1999), and United States v. Caceres, 440 U.S. 741, 99 S. Ct. 1465 (1979), contends that evidence may never be excluded unless the Constitution or a statute requires it. However, Condon and Caceres both deal with the exclusion of probative evidence as a sanction for failing to comply with a statute or regulation. In contrast, in considering the permissibility of excluding evidence to avoid the disqualification of counsel, our focus must be on choosing which ruling would best ensure the fairest trial possible. Therefore, Condon and Caceres are inapposite. 13 District courts have been given broad discretion to fashion remedies to avoid conflicts of interest. See, e.g., Fed. R. Crim. P. 44(c) (discretion to remedy conflicts arising from joint representation); United States v. Wheat, 486 U.S. 153, 163, 108 S. Ct. 1692, 1699 (1988) (discretion to disqualify attorney despite waiver of conflict). The government goes a tad too far when it contends that a district court's discretion to remedy a conflict is limited to choosing among the three traditional remedies of limiting examination of the witness, disqualifying the defense attorney, or ensuring that the defendant waives his right to conflict- free counsel. None of the cases cited by the government precludes the use of other appropriate remedies. Since district courts have been given discretion both to exclude evidence and to remedy conflicts of interest, we decline to create a per se rule against excluding evidence to remedy a conflict of interest. Indeed, the First Circuit has already suggested that it is appropriate to exclude testimony in order to avoid disqualification when the same information is available from other sources. See United States v. Diozzi, 807 F.2d 10 (1st Cir. 1986) (setting aside a jury verdict because the district court disqualified two defense attorneys who were potential witnesses even though a stipulation would have provided the same information as the live testimony of the attorneys; tactical advantage of forcing attorneys to appear as government witnesses rather than as defendants' counsel did not justify infringing on right to counsel). 14 Having decided that a district court may on rare occasions exclude evidence to resolve a conflict of interest, it remains for us to determine whether the district court's decision to exclude Underwood's testimony was an abuse of discretion. Without precisely delineating the scope of a district court's discretion, we note that a balancing of the kind contemplated by Rule 403 is in order. That is, the probative value of the evidence must be weighed against the negative consequences of admitting the evidence. 15 In this case, it is undisputed that Underwood's testimony would be highly probative, particularly with respect to the multiple conspiracy and statute of limitations issues. What is disputed is the characterization of the ill effects that would result from Martin's disqualification. We assume for the purpose of this appeal that Martin would in fact be disqualified if Underwood were to testify because a district court may not accept a waiver of the conflict. See, e.g., United States v. Spears, 965 F.2d 262, 276 (7th Cir. 1992); United States v. Defazio, 899 F.2d 626, 631 (7th Cir. 1990). 16 The Messinos (and the district court) characterize Martin's disqualification as a constitutional deprivation. To begin with, they argue that for all intents and purposes, Martin is irreplaceable and that disqualifying him would violate Dick Messino's Sixth Amendment right to effective counsel. This assertion is plainly wrong. The Sixth Amendment guarantees Martin adequate counsel, not the best possible counsel. See Caplin & Drysdale v. United States, 491 U.S. 617, 624, 109 S. Ct. 2646, 2652 (1989); Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir. 1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)). The purpose of the right to counsel is "to ensure that criminal defendants receive a fair trial." Wheat, 486 U.S. at 159, 108 S. Ct. at 1697 (internal quotation marks and citations omitted). And, "in evaluating Sixth Amendment claims, the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such." Wheat, 486 U.S. at 159, 104 S. Ct. at 1697 (quoting United States v. Cronic, 466 U.S. 648, 657 n. 21, 104 S. Ct. 2039, 2046 n. 21 (1984)). While it is undoubtedly true that no other lawyer has Martin's experience and knowledge of this case at this moment, it is also true that Martin is not the only lawyer who can provide Dick Messino with adequate representation. 17 Dick Messino argues that even if another lawyer could provide him with constitutionally adequate representation, he would be deprived of his counsel of choice if Martin were disqualified. Indeed, not surprisingly, the district court found that "[w]ithout question, Martin is Dick Messino's counsel of choice." (Memorandum Opinion and Order of February 24, 1999 at 13.) When Dick Messino ran out of funds, he successfully petitioned the district court to appoint Martin to represent him. Nonetheless, Dick Messino's argument fails because impecunious defendants do not have the right to choose their counsel. Caplin & Drysdale, 491 U.S. at 624, 109 S. Ct. at 2652 (1989). See also Wheat, 486 U.S. at 159, 108 S. Ct. at 1697 ("[A] defendant may not insist on representation by an attorney he cannot afford."). A defendant's right to "retain counsel of his choosing . . . does not go beyond the individual's right to spend his own money." Caplin & Drysdale, 491 U.S. at 626, 109 S. Ct. at 2652 (internal quotation marks and citations omitted). 18 Dick Messino points out that when he initially retained Martin, he did so using his own funds. He contends that he did not knowingly waive his right to counsel of choice when he asked the court to appoint Martin to represent him under the Criminal Justice Act. He, therefore, asks that we give effect to his original choice. This argument misses the mark. It is not that Dick Messino now lacks the right to hire counsel of his choosing that creates the problem. It is that he lacks the resources to effectuate that right. Even if he had the funds, the right to hire counsel of choice is limited. If Dick Messino had been able to afford to retain Martin privately, the court would, under the circumstances, have the discretion to disqualify Martin because of the conflict of interest. See Wheat, 486 U.S. at 162, 108 S. Ct. at 1699. 19 Finally, the district court voiced concern about the delay that would result if it appointed new counsel to represent Dick Messino. The court noted that both Dick and Clement Messino's trials would be delayed because the two brothers are being tried jointly. (Memorandum Opinion and Order of February 24, 1999 at 14.) However, the court stopped short of finding that the delay would be unconstitutional. In fact, even the Messinos do not contend that disqualification would result in unconstitutional delay. The consequences of allowing Underwood to testify would not include depriving Dick Messino of any constitutional right. 20 The consequences may include less effective (although presumably adequate) representation of Dick Messino, as well as inconvenience to both Dick and Clement Messino. Nevertheless, although regrettable, these consequences clearly do not outweigh the probative value of Underwood's testimony. We find that the district court abused its discretion by barring Underwood's testimony in order to resolve Martin's conflict of interest. Conclusion 21 For the foregoing reasons, we Reverse the district court's order barring Underwood's testimony and Remand pursuant to Circuit Rule 36 for proceedings consistent with this opinion. Notes: 1 In any case, the Santiago proffer relates only to the admissibility of statements under Federal Rule of Civil Procedure 801(d)(2)(E). See United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978) (overruled on other grounds, Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775 (1987)). Therefore, the admissibility of Underwood's direct testimony is unrelated to the timeliness of the proffer.	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 23, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court EZEKIEL DAVIS, Plaintiff - Appellant, v. GEO GROUP CORRECTIONS, INC.; AMBER MARTIN, Vice President of GEO No. 17-6059 Group, Inc., individually and in her official (D.C. No. 5:16-CV-00462-HE) capacity; HECTOR RIOS, JR., Warden, (W.D. Oklahoma) individually and in his official capacity; CHRISTINA THOMAS, Medical Supervisor, individually and in her official capacity; FNU GONZAGA, Medical Doctor, individually and in his official capacity; LT. FNU DURANT, Grievance Coordinator, individually and in his/her official capacity; BUDDY HONAKER, Medical Services Admin., individually and in his official capacity; JOE M. ALLBAUGH, Director ODOC, individually and in his official capacity; DAN RONAY, Supervisor-Correct Care Solutions, individually and in his official capacity; JANE DOE, Director, Lawton Foot Clinic, individually and in her official capacity; SHERYL DENTON, Nurse Practitioner, individually and in her official capacity; LT. FNU DAWSON, Grievance Coordinator; MARGO SALDANA, Law Library C.O.; FNU CLARK, C.O. assigned to Law Library; SGT. FNU ADAMS, Correctional Officer; FNU COLLINS, Warden, Law Library Supervisor; FNU CARLISLIE, Chaplain; MARK KNUTSON, Director Designee; JOHN DOE, Podiatrist, Lawton Foot Clinic, in his individual and official capacity; FNU MUSALLAM, Physician, individually and in his/her official capacity; FNU McGEE, ODOC Medical Service Admin., individually and in his/her official capacity; FNU MINYARD, ODOC Contract Monitor, individually and in his/her official capacity, Defendants - Appellees. _________________________________ ORDER AND JUDGMENT* _________________________________ Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________ Plaintiff-Appellant Ezekiel Davis, a state prisoner proceeding pro se,1 appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint. The district court denied Mr. Davis’s motion to proceed in forma pauperis (IFP), and dismissed his complaint without prejudice when he failed to pay the full filing fee on time. Exercising jurisdiction under 28 U.S.C. § 1291, we grant Mr. Davis leave to proceed IFP on appeal, vacate the district court’s order denying IFP in that court, and remand for further proceedings. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. 1 We construe Mr. Davis’s pro se filings liberally. See Smith v. Veterans Admin., 636 F.3d 1306, 1310 (10th Cir. 2011). 2 BACKGROUND Mr. Davis is a state prisoner in the custody of the Oklahoma Department of Corrections. On May 4, 2016, he filed his § 1983 complaint in the United States District Court for the Western District of Oklahoma, raising First and Eighth Amendment claims. He asserted that he has been denied adequate medical treatment by qualified personnel for severe back pain and a plantar wart, and that he has been denied footwear with adequate arch support. He alleged that he has suffered for over twenty-five years from back pain that causes him to be immobile for days at a time, that his back pain significantly affects his daily activities, and that his back pain is exacerbated by the lack of proper foot support. While Dr. Gonzaga gave him shots of a drug called Prednisone, he contended that Dr. Gonzaga and Medical Supervisor Christina Thomas rejected his requests to see an outside specialist. And even though he was provided arch support insoles, the insoles were far too small for his shoes. His requests for orthopedic shoes were also denied. Without proper medical treatment, he maintained, he will continue to suffer and his condition will deteriorate. Along with his complaint, Mr. Davis filed a motion to proceed in forma pauperis. Applying the so-called “three-strike” rule under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), the magistrate judge recommended that the district court deny Mr. Davis’s IFP motion and dismiss the case without prejudice unless he paid the full filing fee. Under the three-strike rule, a prisoner who has brought three or more civil actions that have been dismissed on the grounds that they are “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” 3 is barred from proceeding in further civil actions IFP unless he shows he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The magistrate judge identified three qualifying civil actions that Mr. Davis filed while incarcerated: (1) Davis v. Moles, No. 02-CV-110 (N.D. Okla. Feb. 8, 2002) (dismissing for failure to state a claim); (2) Davis v. Jones, No. 04-CV-819 (W.D. Okla. Aug. 24, 2004) (dismissing without prejudice for failure to state a claim); and (3) Davis v. Ward, No. 05-CV-558 (W.D. Okla. May 11, 2006) (dismissing for failure to exhaust administrative remedies, which at the time constituted a failure to state a claim). The magistrate judge then found that Mr. Davis failed to show that he was in imminent danger of suffering serious physical injury. She reasoned that his own documents showed he could, despite his indigent status, purchase athletic shoes from the canteen as instructed by his podiatrist, that he received silver nitrate to remove the plantar wart, and that he received medication for his back issues. And even though Mr. Davis insisted that he did not receive treatment from qualified medical personnel, his own allegations reflect that defendants responded to his medical needs. The district court adopted the magistrate judge’s recommendation, and, when Mr. Davis did not pay the fee, dismissed the case. On February 10, 2017, Mr. Davis filed a motion to reopen the case and to proceed IFP, arguing that he could now meet the imminent danger exception. He claimed that in November 2016, Dr. Musallam, who had apparently replaced Dr. Gonzaga, diagnosed him with “lumbar and cervical degenerative disk disease with probable spinal stenosis and radiculopathy.” Mr. Davis alleged that Dr. Musallam 4 prescribed him a psychotropic drug called Trazadone, and that Ms. Thomas told Dr. Musallam to not refer Mr. Davis to a specialist. Mr. Davis further claimed that he still had an unremoved plantar wart. The district court ruled that these conditions do not rise to the level of serious physical injury contemplated in § 1915(g) and denied the motion. Mr. Davis appealed. On March 15, 2017, we issued an order sua sponte noting Mr. Davis’s three strikes under 28 U.S.C. § 1915(g), and directing Mr. Davis to show cause why his appeal should not be dismissed for failure to prepay the entire filing fee as required by § 1915(g), or why § 1915(g) does not apply to this proceeding. Mr. Davis timely submitted a response, in which he contends he has sufficiently shown he is in imminent danger of suffering serious physical injury and that § 1915(g) therefore does not apply. Mr. Davis also filed an application to proceed IFP, and we issued an order assessing fees in the form of partial payments, pending the resolution of this appeal. DISCUSSION Congress designed the PLRA to control prisoner litigation. Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013). To that end, the PLRA generally “requires all prisoners appealing decisions in civil actions to pay the full amount of the filing fees” up front. Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011). Indigent prisoners are often exempt from this rule, and “a prisoner proceeding IFP usually makes an initial partial payment and then pays the remainder of the filing fee in monthly installments.” Id. But where a prisoner has previously filed three or more 5 civil actions or appeals in federal court that resulted in dismissals on the grounds they were “frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted,” 28 U.S.C. § 1915(g), the prisoner “has ‘struck out’ from proceeding IFP in a new civil action or appeal,” Strope, 653 F.3d at 1273. See Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th Cir. 2011) (“Under PLRA, a prisoner is barred from bringing new civil cases or appeals in civil cases without the prepayment of filing fees if three prior civil cases or appeals in civil cases have been dismissed as frivolous, malicious, or for failure to state a claim.”). To meet the only exception to the prepayment requirement, a prisoner who has accrued three strikes must make “specific, credible allegations of imminent danger of serious physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (internal quotation marks omitted). The prisoner “should identify at least the general nature of the serious physical injury he asserts is imminent,” and “should make a specific reference as to which of the defendants may have denied him what medication or treatment for what ailment on what occasion.” Id. at 1180 (internal quotation marks omitted). “Vague and utterly conclusory assertions are insufficient.” Id. (internal quotation marks omitted). And “allegations of past harm do not suffice; the harm must be imminent or occurring at the time the complaint is filed.” Stine v. U.S. Fed. Bureau of Prisons, 465 F. App’x 790, 793 (10th Cir. 2012) (unpublished) (quoting Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)); see also Hafed, 635 F.3d at 1179 (stating that “a prisoner must have alleged an imminent danger at the 6 time he filed his complaint”); id. at 1180 (“An appellant should make his allegations of imminent danger in his motion for leave to proceed ifp.”). Mr. Davis maintains he has established he is in imminent danger of suffering serious physical harm because Defendants have displayed a deliberate indifference toward his serious medical needs.2 Mr. Davis contends that he has long suffered from substantial and chronic back pain, that he cannot sit or stand for extended periods without being in terrible pain, that he experiences a constant grinding in his neck and popping in his back, and that his limbs go numb whenever he tries to sleep on his side. Mr. Davis also alleges that Dr. Musallam diagnosed him with degenerative disk disease, yet, at Ms. Thomas’s direction, would not refer him to an outside specialist for an MRI. As a result, which of his disks are deteriorating is uncertain, the severity of his spinal stenosis is unknown, and the extent of his radiculopathy is unclear. Mr. Davis further alleges that the doctor told him “your [sic] just going to have [to] suffer the pain like we all do.” Admittedly, this is a close call. But taking Mr. Davis’s averments as true, and giving Mr. Davis the benefit of the doubt as a pro se litigant, see Stine, 465 F. App’x at 793–94, we conclude that he has sufficiently pled he is in imminent danger of suffering serious physical harm. First, Mr. Davis has identified the general nature of the serious physical injury that he asserts is imminent. He alleges that he has long suffered from chronic and severe back pain that causes him to be immobile for long 2 Mr. Davis does not contest that he has three qualifying strikes under the PLRA. Therefore, we confine our analysis to whether he has sufficiently alleged that he is in imminent danger of suffering serious physical injury. 7 periods and unable to sleep on his side without his limbs going numb. Indeed, Dr. Musallam diagnosed him in November 2016 with degenerative disk disease. Second, Mr. Davis has sufficiently referenced which defendants denied him treatment for his ailment and on what occasion. He alleges that neither Dr. Gonzaga nor Dr. Musallam nor Ms. Thomas permitted him to see a specialist so he could receive an MRI to understand the true nature of his disease, thus inhibiting his ability to receive appropriate treatment. This occurred both before and after Dr. Musallam’s diagnosis. Mr. Davis’s repeated contention that he received inadequate treatment for his severe back pain suggests his allegations are sufficiently credible for the purposes of granting him leave to proceed IFP. To be sure, Mr. Davis’s own allegations reveal that medical personnel visited with him numerous times, and that Dr. Gonzaga gave him shots of a drug called Prednisone while Dr. Musallam prescribed him a drug called Trazadone. And the district court concluded that Mr. Davis’s allegations suggest prison officials were responsive to his medical needs. But Mr. Davis alleges that Dr. Gonzaga informed him Prednisone was bad for him, and that Trazadone is merely a psychotropic drug with mind- and mood-altering affects. And even though prison officials may have been responsive to Mr. Davis’s medical needs, the thrust of his allegations is that the treatment he has received is inadequate and that he will continue to suffer debilitating back pain unless he receives an MRI and additional medical treatment in accordance with that examination. Mr. Davis’s allegations that Defendants have displayed a deliberate indifference toward his serious medical needs and denied him adequate 8 medical treatment are sufficient to facially establish the PLRA’s imminent and serious danger requirement for proceeding IFP. See, e.g., Stine, 465 F. App’x at 794– 95 (concluding that a prisoner satisfied the imminent and serious danger requirement where his allegations facially established that he would suffer from reflux of blood, pain when he eats or talks, a reduced ability to swallow without pain, and permanent damage to his esophagus lining if he is not provided the drug Omeprazole); Fuller v. Myers, 123 F. App’x 365, 366–68 (10th Cir. 2005) (unpublished) (holding that a prisoner’s assertion “that he currently suffers from breathing difficulties and other respiratory problems, apparently exacerbated by the ventilation system where he is incarcerated,” facially met the imminent and serious danger requirement, even though the prisoner used an inhaler and received 600 mg of Motrin two times per day for head pain); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (finding that a prisoner adequately alleged that he was in imminent danger of serious physical harm where he suffered from HIV and hepatitis, and his doctor stopped his prescribed treatment, causing him to “suffer[] prolonged skin and newly developed scalp infections, severe pain in the eyes and vision problems, fatigue and prolonged stomach pains”); McAlphin v. Toney, 281 F.3d 709, 710–11 (8th Cir. 2002) (holding that a prisoner’s allegations that he needed two tooth extractions to prevent a possible infection in his mouth were sufficient “as a matter of law” to establish that he was “in imminent danger of serious physical injury”); Gibbs v. Cross, 160 F.3d 962, 965–66 (3d Cir. 1998) (finding that a prisoner’s allegations that “unidentified dust particles were in his lungs and mucus, and that he [was] suffering from severe headaches, 9 watery eyes, and a change in his voice as a result” of being placed in a dusty cell were sufficient to meet the imminent danger requirement to proceed IFP). Our conclusion that Mr. Davis facially satisfies the imminent and serious danger requirement of § 1915(g) is not the end of the matter. On remand, the district court may still dismiss Mr. Davis’s complaint through the screening process if it determines that his complaint is frivolous, malicious, fails to state a claim, or seeks monetary relief against an immune defendant. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); Fuller, 123 F. App’x at 367. If Mr. Davis survives the screening process, the district court should provisionally grant IFP and proceed with service of process. Fuller, 123 F. App’x at 367–68. Defendants may then make a factual challenge, based on a more complete record, to the district court’s provisional determination that Mr. Davis satisfies the imminent and serious danger requirement. Id. If Defendants mount such a challenge, “the district court may resolve the factual issues of imminent [and serious] danger by relying upon evidence supplied by sworn affidavits or depositions, or, alternatively, it may hold a hearing.” Id. (internal quotation marks omitted). CONCLUSION We GRANT Mr. Davis leave to proceed IFP on appeal, VACATE the district court’s order denying IFP, and REMAND for further proceedings. Entered for the Court Carolyn B. McHugh Circuit Judge 10	{ "pile_set_name": "FreeLaw" }
794 F.2d 683 People of Territory of Guamv.Downs 85-1225 United States Court of Appeals,Ninth Circuit. 6/30/86 D.Guam AFFIRMED	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7002 BERNARD MCFADDEN, Plaintiff - Appellant, v. SIMON MAJOR, Director of Sumter Lee Regional Detention Center, in his individual or personal capacity; RAY LEE, Captain, Records Officer and Accountant, in his individual or personal capacity, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Greenville. R. Bryan Harwell, District Judge. (6:09-cv-02437-RBH) Submitted: September 28, 2010 Decided: October 6, 2010 Before WILKINSON, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Bernard McFadden, Appellant Pro Se. James M. Davis, Jr., Joel Steve Hughes, DAVIDSON, MORRISON & LINDEMANN, PA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bernard McFadden appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint with prejudice for lack of prosecution. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See McFadden v. Major, No. 6:09-cv-02437-RBH (D.S.C. July 9, 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	{ "pile_set_name": "FreeLaw" }
03/08/2017 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs February 15, 2017 STATE OF TENNESSEE v. JUSTIN DANIEL ADAMS Appeal from the Circuit Court for Lawrence County No. 33063 J. Russell Parkes, Judge No. M2016-00835-CCA-R3-CD _____________________________ The Defendant, Justin Daniel Adams, pleaded guilty to aggravated assault, agreeing to an out-of-range sentence of eight years. The parties agreed to allow the trial court to determine the manner of service of his sentence. After a hearing, the trial court ordered that the Defendant serve his sentence in confinement. On appeal, the Defendant contends that the trial court erred when it denied him an alternative sentence and that his judgment form should be amended to reflect applicable pretrial jail credit.1 We affirm the trial court’s judgment. We remand the case to the trial court for the entry of an amended judgment that reflects the Defendant’s applicable pretrial jail credit. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J., and TIMOTHY L. EASTER, J., joined. Claudia S. Jack, District Public Defender; Brandon E. White, Columbia, Tennessee (on appeal); and Robert H. Stovall, Jr., Assistant District Public Defender, Lawrenceburg, Tennessee, for the appellant, Justin Daniel Adams. Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Brent A. Cooper, District Attorney General; and Gary M. Howell, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Facts 1 The Defendant presented a third issue regarding judicial diversion, but he filed a motion with this Court, which we granted, to withdraw that issue. This case arises from the Defendant’s placing two guns to the rib and temple of the victim on January 6, 2015. For his actions, a Lawrence County grand jury indicted the Defendant for aggravated kidnapping and unlawful possession of a firearm during the commission of a dangerous felony. On January 4, 2016, the Defendant pleaded guilty to aggravated kidnapping, a Class B felony, in exchange for an eight-year, Range I, sentence, agreeing to allow the trial court to determine the manner in which he would serve that sentence. The State agreed to dismiss the firearm charge. On February 22, 2016, the Defendant filed a motion to withdraw his guilty plea, averring that his guilty plea was unknowingly and involuntarily entered because he was not aware that the crime to which he pleaded guilty required the service of his sentence at 100%. The trial court granted the Defendant’s motion to withdraw his guilty plea. On March 14, 2016, the Defendant pleaded guilty to aggravated assault, a Class C felony, agreeing to an out-of-range sentence of eight years. At the guilty plea hearing, the trial court ensured that the Defendant understood that, in exchange for his guilty plea to a lesser charge, he was agreeing to a Range II sentence of eight-years, even though he was considered a Range I offender, which carried an applicable sentencing range of three to six years. The trial court explained that the Defendant was so doing to avoid the possibility of having to serve his sentence at 100%. The trial court then ensured that the Defendant understood that the plea agreement contemplated that the trial court would determine the manner of service of the Defendant’s sentence. The Defendant acknowledged that he understood the plea agreement and the out-of-range sentence. He then offered that he was pleading guilty because he had, in fact, committed the offense. The trial court held a sentencing hearing during which the parties presented the following evidence: The victim testified that he worked as a self-employed hairdresser in Loretto, Tennessee. The victim recalled that, on January 6, 2015, at around 2:00 or 3:00 p.m., he had finished with work and was cleaning out his car at a gas station located next door to the salon. An employee from the hair salon came toward him and said that there was a man who needed a haircut, and the victim saw the man to whom she was referring, the Defendant. The victim told the woman and the Defendant that he would be happy to do it. The Defendant asked the cost, and the victim told him $5.00. The Defendant said he had to call his mother and then proceeded to appear to text someone on the cellular phone in his possession. The Defendant then told him that he could not get a haircut at that time. The victim said that he did not detect any anger in the Defendant’s demeanor at that point. The victim said that he returned to vacuuming his car and that the Defendant remained and struck up a conversation with him about a Loretto High School bumper sticker on the victim’s car. He described this as casual conversation and said the two talked for between twenty and forty minutes. The Defendant then said to the victim that 2 his mother had asked if the victim could give the Defendant a ride home so that the Defendant did not have to walk. The victim told the Defendant that he could give him a ride after he finished cleaning his car. The victim testified that, when he began driving the Defendant home, they headed north. The victim noticed the hilt of a “particular knife” that the Defendant had that looked like a knife that was similar to one the victim owned. The victim said he told the Defendant, “Hey, man, if I would have known you were armed like that, I don’t know if I would have given you a ride.” The victim said that he was not afraid at that point and was joking. The Defendant then pulled a gun and placed it to the right-side of the victim, near his ribs, and said, “[A]rmed like what? . . . [D]o you mean armed like this, mother f*er?” The victim said he was completely caught off guard by the change in the Defendant’s demeanor. The Defendant then took a second gun out and placed it to the victim’s temple and said, “[M]aybe like this, bch?” The victim said that he was afraid for his life. The victim testified that he began begging and pleading with the Defendant, asking him why he was doing this when the victim was giving him a ride home. The victim said he slowed the car, and the Defendant said, “[D]on’t f***ing do it.” The victim pulled over, stopped the car, pushed the gun away from his head, and jumped out of the car. He ran across the street to a Mapco gas station and asked the attendant to call 911. The victim said he remained at the gas station until law enforcement arrived. During cross-examination, the victim testified that, before he agreed to give the Defendant a ride, the Defendant told him that he lived on Commerce Street, which was “[n]ot very far” from the car wash. He said that the Defendant pulled out the weapons after the two had been in the car together for three or four minutes. The victim estimated that the weapons were pointed at him for approximately one to one-and-a-half minutes before he successfully stopped and exited his car. He agreed that the Defendant never fired a weapon at him. Okie Littrell, Jr., testified for the Defendant, saying that he lived close to the Mapco gas station located near these events. Mr. Littrell said that he had known the Defendant for five years and that, shortly before these events, the Defendant moved into an apartment near him. Mr. Littrell said that the Defendant was a “pretty timid boy,” whom had never given Mr. Littrell any problem. He found it hard to believe the events about which the victim testified. He found it unlikely that the Defendant would brandish a weapon and implausible that the Defendant could hold two weapons in the manner described by the victim. Mr. Littrell opined that the Defendant would not survive in jail. He said that the 3 Defendant would not hurt anybody. He expressed no concern if the Defendant came back to live next to him, saying that he was happy to offer the Defendant a room in his home if necessary. During cross-examination, Mr. Littrell testified that he was unaware that the Defendant had said that he sometimes thought about killing people but that this information did not change his opinion. During redirect examination, Mr. Littrell said that, in the five years that he had known the Defendant, the Defendant had never been homicidal and never threatened him or anyone else. Mr. Littrell said he had seen the Defendant upset and crying on occasion but that he did not believe that the Defendant would ever hurt anyone intentionally. Teresa Anne Ray, the Defendant’s mother, testified that the Defendant was twenty-five years old at the time of the sentencing hearing. She said that the Defendant had never expressed any desire to kill anyone to her. Ms. Ray testified that the Defendant lived with her and that if he received probation she would get a two bedroom so that he could again live with her. During cross-examination, Ms. Ray testified that, after these events, the Defendant called her and asked her to pick him up at a Sonic near where the crime occurred. She said that, after she picked him up, rather than go back out onto the highway, she went through a man’s yard to leave the area. She agreed that she saw a police cruiser with its blue lights activated before she left through the man’s yard. She further agreed that, after she got back onto the highway, another law enforcement officer began following her and activated his blue lights. She did not stop immediately. She said that she intended to stop, but another officer pulled in front of her vehicle forcing her to stop. Ms. Ray agreed that, after officers got her out of her vehicle, they found two guns underneath her front seat. Ms. Ray said she was unaware the guns were in her vehicle. Ms. Ray testified that the Defendant had “mental problems” since he was seven years old. She had taken him to multiple doctors over the years to address his issues. During redirect examination, Ms. Ray testified that the doctors had told her that, in terms of mental development, the Defendant was three or four years behind his actual age. She said the doctors he had seen did not indicate that the Defendant was a threat to himself or anyone else. She said that they informed her that the Defendant had learning disabilities and a type of autism. She said that, a few years before, the Defendant had been admitted to a mental hospital for six days. Glenda Gail Buie testified that she had known the Defendant for his entire life, and she expressed surprise by the victim’s testimony. She said that Ms. Ray never 4 allowed the Defendant to play with guns and that she was not scared of the Defendant coming home to live near her. Ms. Buie said that the Defendant never told her that he wanted to kill anyone, and in the more than twenty years she had known him, he had never hurt anyone. Willie Flippo testified that he was the Defendant’s uncle by marriage and had known him since he was an infant. He said that the events described by the victim did not comport with his experience with the Defendant. The Defendant, he said, had never hurt anyone, followed rules well, and accepted supervision. Mr. Flippo opined that the Defendant would be successful on probation and that he did not pose a danger to anyone. During cross-examination, Mr. Flippo testified that he was unaware whether the Defendant had previously attempted suicide. He said that their interactions were limited to family events, but he felt he knew the Defendant “well.” Edith Flippo, the Defendant’s aunt, testified that she had known the Defendant since his birth and that the Defendant’s mother had not had “any trouble” with him. Mrs. Flippo said that the Defendant had “always been slow,” sometimes behind his peers but that he had never attacked anyone or broken anything. Mrs. Flippo said that the Defendant had never fought with other kids or any authority figures. She opined that the Defendant, who had no history of drug use, would be successful on probation. During cross-examination, Mrs. Flippo said that she was unaware whether the Defendant had attempted suicide. Donald Gene Ray, the Defendant’s uncle, said that he had known him since he was a baby. He said that the Defendant had never hurt, or expressed a desire to hurt, anyone. Mr. Ray testified that, while he was unaware whether the Defendant had attempted suicide, he knew that the Defendant was not “normal,” in that he was a “little slow.” The Defendant testified that he had pleaded guilty to aggravated assault in exchange for an eight-year sentence. He said that he was a “little slow” and at the age of twenty-five had only completed the eighth grade in school. The Defendant said that, daily, he took Adderall, Xanax, a “pain pill,” a “breathing pill, two different blood pressure pills, a stomach pill, [and] a sugar pill.” His medication precluded him from driving, and he had never had a driver’s license. The Defendant walked most places, which is why he sought a ride from the victim on the day of this offense. The Defendant recalled that, in 2009, he was hospitalized in a mental facility following the death of his father. He said that he attempted to commit suicide by cutting his throat because he was depressed. The Defendant said he was unable to work, so he drew a disability check, which was managed by his mother. 5 The Defendant said that he had no criminal record, had never been in jail or in trouble, and asked for probation so he could help take care of his mother. He said that she did not have any weapons in her home. The Defendant said that he would have no contact with the victim if he were released. During cross-examination, the Defendant testified that he and his mother both owned a gun. The Defendant said he purchased the gun that belonged to him from a pawn shop. The Defendant testified that he did not have either gun with him on the day of the offense and that he only had his knife on his belt. He denied ever pointing a gun at the victim. He said that his mother must have been driving around with the two guns underneath her seat. The Defendant said he never threatened the victim and that the victim pulled over and jumped out of his car for no reason. The Defendant denied telling the officer that he may have pointed a gun at the victim, saying that he did not understand the officer. The Defendant said he was unsure why he was allowed to quit school at fifteen years old. He was unsure whether his mother had promised to homeschool him, making it legal for him to leave school. The Defendant said he told the presentence investigator that he had “ADHD” and “suicidal tendencies” but that he never acted upon those tendencies. The Defendant agreed that he tried to cut his throat in 2009 and that he had also tried to shoot himself “a couple of years ago.” During redirect examination, the Defendant said that, if given probation, he would seek mental health treatment. He said that he did not point a gun at the victim but that he pleaded guilty because he was “tired of dealing with it” and wanted to “go home to [his] mama.” The Defendant said that, if released, he would stay out of trouble. During recross-examination the Defendant admitted hearing his mother say that she was unaware that the guns were in her truck on the day of the Defendant’s arrest. The Defendant maintained that he also did not know that the guns were in her truck. The State reminded the Defendant that perjury was a felony offense and asked the Defendant again if he had threatened the victim with a gun. The Defendant invoked his Fifth Amendment right not to incriminate himself. During the Defendant’s allocution, he said: [The victim] offered me a ride. He s[aw] the knife on my belt. He made a comment about me lying about it. He threatened to hit me. And after we 6 got up to the red light, he jumped out and he said, don’t hurt me, take the car. And that’s when I ended up in handcuffs. I started having an asthma attack. Based upon this evidence, the trial court found: I’ve considered the nature and circumstances of the offense. As it relates to the nature and the circumstances of this offense, the Court is particularly troubled with and specifically finds now that [the victim] is a credible individual. I find contrary to what [the Defendant] has testified to, that [the Defendant] did possess the two guns that were used that day. It simply makes no sense to this Court that the immediate report to the authorities by [the victim] would indicate that there were two handguns used, and lo and behold, what is found in [the Defendant’s] mother’s vehicle but two handguns. I find that this is particularly egregious and heinous, and not your quote, run-of-the-mill, assault case. Not just one weapon was used, but two. It was not in the heat of the moment, so to speak in the sense that it was not family members arguing or friends arguing or even bitter enemies for years arguing. The Court is also particularly troubled with the fact that the family members who have testified for [the Defendant] said that they have no knowledge of prior suicidal ideations. And, in fact, [the Defendant] says that not only has he attempted suicide once, but at least twice. Once resulting in . . . him slitting his own throat or attempting to cut his own throat for which he received hospitalization for one week. The second time when he attempted to use a firearm and commit . . . suicide the gun did not fire. I also find after having reviewed the presentence report, that the Court can consider the physical and mental condition and societal history of the [D]efendant, and the Court has done so. While the Court is not denying probation based on his mental ability, mental capacity or lack thereof or any form of impairment, the Court has considered that in denying probation. I also find and have considered the facts and circumstances surrounding the offense and the nature of the circumstances of the criminal conduct involved. Specifically, I find that this . . . particular individual had used weapons in the past. Those weapons had been used prior to the day of this particular offense to inflict or attempt to inflict bodily injury to himself. 7 However, there was a change on this particular date when bodily injury was threatened to another individual with deadly weapons, to wit, two different firearms. The [D]efendant has no prior criminal record and the Court has considered that. The Court has also considered the previous actions and/or character of the [D]efendant. I’ve also considered whether or not the [D]efendant might reasonably be expected to be rehabilitated and the [D]efendant’s potential or lack of potential for rehabilitation, including the risk that during the period of probation the [D]efendant will commit another crime. He’s never been on probation. He’s never been on any type of supervision that is before this particular Court. But I have considered whether or not measures least restrictive and confinement have frequently or recently been applied . . . and I find that this is not applicable in this particular case. The question of whether or not the confinement is particularly suited to provide an effective deterrent to others likely to commit similar offenses has been considered by the Court. I’ve considered not only specific deterrence, but general deterrence in this particular case and I find that that would be an applicable factor. I now find that this offense was particular egregious, heinous. And I now find that the [D]efendant has failed to accept responsibility for this particular offense although he has now pled guilty to the amended charge of aggravated assault outside the range. I also find that the [D]efendant has not been truthful today in offering his testimony before the Court. For the foregoing reasons and all of the findings of fact which I have now made, I deny . . . the [D]efendant probation and I find that it would be . . . remiss in my duties and not abiding by my oath if I did not impose [a] sentence of eight years to be served in the Tennessee Department of Corrections [sic]. It is from this judgment that the Defendant now appeals. II. Analysis On appeal, the Defendant contends that the trial court erred when it sentenced him. He asserts that the trial court improperly denied his request for an alternative sentence. He further asserts that the judgment form also improperly omits the jail credit to which he 8 is entitled for January 6, 2015 to March 31, 2016. The State counters that the Defendant has not met his burden of showing that the trial court erred by ordering him to a sentence of confinement. The State agrees that the judgment of conviction should be amended to show the Defendant’s applicable pretrial jail credit. We agree with the State. Appellate review of the length, range, or manner of service of a sentence imposed by the trial court are to be reviewed under an abuse of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to alternative sentencing). In sentencing a defendant, the trial court shall consider the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on enhancement and mitigating factors; (6) any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. §§ 40-35-102, -103, -210 (2014); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of his sentence. See T.C.A. § 40-35-401 (2014), Sentencing Comm’n Cmts. An appellant is eligible for alternative sentencing if the sentence actually imposed is ten years or less. See T.C.A. § 40-35-303(a) (2014). The Defendant’s sentence meets this requirement, as he was sentenced to eight years. Moreover, an appellant who is an especially mitigated or standard offender convicted of a Class C, D, or E felony should be considered a favorable candidate for alternative sentencing absent evidence to the contrary. See T.C.A. § 40-35-102(6). The Defendant, convicted of a Class C felony, is considered a favorable candidate for alternative sentencing. The following sentencing considerations, set forth in Tennessee Code Annotated section 40-35-103(1), may constitute “evidence to the contrary”: (A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. 9 See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, “[t]he potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Candor is a relevant factor in assessing a defendant's potential for rehabilitation, see State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994), and the lack of candor militates against the grant of probation. See, e.g., State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 2001). The burden of proving suitability for probation rests with the defendant. See T.C.A. § 40-35-303(b). In the case under submission, we conclude that the trial court did not abuse its discretion when it denied the Defendant an alternative sentence. The trial court considered the nature and circumstances of the offense, noting that this offense was committed with two weapons, that the victim and the Defendant did not know each other, that they were not arguing, and that the victim was assisting the Defendant at the time of the offense. The trial court further noted that the Defendant had used a handgun in an attempt to kill himself previously and that this offense was particularly egregious and heinous. The trial court also found that the Defendant’s testimony was not credible. It noted that the Defendant, while entering a plea of guilty, denied ever pointing a weapon at the victim. Instead, the Defendant said that the victim jumped out of the car for no reason. The Defendant also said that he did not know why his mother had two guns underneath her seat when she was stopped while driving him shortly after this offense. He similarly said that, contrary to their testimony, he did not tell police officers that he may have pointed a gun at the victim. The trial court found that the Defendant’s lack of candor weighed against his grant of an alternative sentence because the Defendant failed to accept responsibility for his offense. Under these circumstances, we conclude that the trial court did not err when it denied the Defendant an alternative sentence. After a review of the record, we agree with the parties that the Defendant’s judgment of conviction should reflect his pretrial jail credit from January 6, 2015, to March 31, 2016. We remand this case for the entry of an amended judgment to so reflect. III. Conclusion In accordance with the foregoing reasoning and authorities, we affirm the trial court’s judgment. We remand the case for the entry of a judgment of conviction reflecting the Defendant’s applicable pretrial jail credit. _________________________________ ROBERT W. WEDEMEYER, JUDGE 10	{ "pile_set_name": "FreeLaw" }
736 F.2d 313 Philip Carmikle PARKS, a minor, By and Through his parentsand next friends, Bobby Joe PARKS and Clara MaeParks, Plaintiffs-Appellees,v.Geneva COLLINS, individually, and in her capacity asInstructor, Claiborne County Schools and John Charles Noble,individually and in his capacity as Superintendent of theClaiborne County Public Schools, Defendants-Appellants. No. 83-4107. United States Court of Appeals,Fifth Circuit. July 16, 1984. Firnist J. Alexander, Jr., Jackson, Miss., for defendants-appellants. Robert C. Connor, Jr., M. Rush O'Keefe, Jr., Port Gibson, Miss., Wilbur Colom, Columbus, Miss., for plaintiffs-appellees. Appeal from the United States District Court For the Southern District of Mississippi. Before GEE, RANDALL, and JOHNSON, Circuit Judges. JOHNSON, Circuit Judge: This is an appeal in a Sec. 1983 action from a verdict against defendants after trial before a magistrate pursuant to 28 U.S.C. Sec. 636(c). The jury returned a verdict against defendants for both actual and punitive damages. On appeal, defendant argues that because Local Rule VII of the United States District Court for the Southern District of Mississippi was not followed, the magistrate had no jurisdiction to hear the case.1 We hold that the local rule is not jurisdictional and that defendant, who failed to object below, cannot now on appeal complain of the failure to follow the requirements of the local rule. 28 U.S.C. Sec. 636(c) of the 1979 Federal Magistrate Act authorizes magistrates, when specially designated by the district court, to exercise jurisdiction over civil matters and enter a final judgment in civil cases, provided the parties consent to the reference to the magistrate. Pursuant to Sec. 636(c), Local Rule VII of the United States District Court for the Southern District of Mississippi sets out procedures for referring cases to magistrates. The instant case was assigned to a United States Magistrate for trial before a jury by an order of reference entered September 17, 1982. The order of reference was entered despite the fact that no written consent form had been filed as required by Local Rule VII.2 After the jury returned a verdict against defendants, defendants argued in a motion for new trial that the judgment against them should be vacated for want of jurisdiction and the cause remanded for a new trial. Defendants' first objection to the reference of the case to the magistrate came in their motion for new trial. The only objection to referral prior to trial came from plaintiffs. On September 17, 1982, plaintiffs' attorney made an oral motion to withdraw his consent for the United States Magistrate to try the case. The court denied plaintiffs' motion and referred the case to the magistrate for trial. The September 17, 1982, order of reference clearly states that a written consent form was not formally executed and filed as required by the local rule. Nonetheless, the court explains in the September 17 order why it was denying plaintiffs' motion to withdraw their oral consent to referral. The court stated that plaintiffs' attorney had agreed to jury trial with a magistrate presiding; that pursuant to the agreement between plaintiffs' attorney, defendants' attorney and the court, a jury was empaneled on September 13, 1982, and the case set for trial October 5, 1982; that it would work great hardship to the court, counsel for defendants, and to the litigants if plaintiffs were allowed to withdraw their consent at such a late date; that the interests of justice would be best served by requiring plaintiffs' attorney to fulfill his agreement with the court to have the magistrate try the case. 1 At the time plaintiffs attempted to withdraw their consent, defendants voiced no objection to referral to the magistrate. Indeed, defendants must have opposed plaintiffs' motion, as the court's order recites that granting the motion "would work great hardship to ... counsel opposite...." Clearly, since defendants' first objection to referral to the magistrate was made in a post-trial motion, defendants have no standing on appeal to object unless the requirement of the local rule is jurisdictional. 2 Defendants suggest that the magistrate has no jurisdiction to hear the case until the parties' consent is in writing and filed with the court. We disagree. Local Rule VII is not a restriction on the jurisdiction of the court. Instead, the local rule sets out the procedure whereby civil cases are assigned to magistrates. Indeed, defendants state in their brief that Rule VII "provides for a procedure for the referral of civil cases to magistrates...." The statute itself provides that "[r]ules of the court for the reference of civil matters to magistrates shall include procedures to protect the voluntariness of the parties' consent." 28 U.S.C. Sec. 636(c). It follows that the procedures set forth in Local Rule VII of the United States District Court for the Southern District of Mississippi are to "protect the voluntariness of the parties' consent" as required by statute--not to restrict the court's own jurisdiction. The requirement of the execution and filing of a written consent form is to ensure that the waiver of the right to a trial before a district judge is undertaken freely and voluntarily. Defendants here gave their consent freely and voluntarily; indeed, they opposed plaintiffs' motion to withdraw their consent. 3 Defendants cite no authority for the proposition that the filing of a written consent form is jurisdictional, and we can find none. We hold that the procedures provided by Local Rule VII for the assignment of civil cases to magistrates are simply a restriction on the manner by which the district court exercises its jurisdiction--not a restriction on the jurisdiction of the court itself. Consequently, defendant has no standing on appeal to object to the court's failure in this case to abide by the procedural safeguards for the voluntariness of the parties' consent. Our holding today in no way implies that it is not necessary to have the written consent of the parties to trial before a magistrate or that it is not necessary to comply with local rules. We hold merely that under the circumstances of this peculiar case, we find it necessary to affirm. To do otherwise would be to accord jurisdictional status to a local rule whose purpose is to establish procedures for assigning civil cases to magistrates and, in so doing, to protect the voluntariness of the parties' consent to trial before a magistrate. 4 AFFIRMED. 1 This case was classified for oral argument in order to address the question presented by the district court's failure to follow the requirements of Local Rule VII of the District Court for the Southern District of Mississippi. The various other points of error raised on appeal are without merit and do not require written disposition 2 Local Rule VII provides: (b) Execution of Consent The clerk shall not accept a consent form unless it has been signed by all parties in a case. The plaintiff shall be responsible for securing the execution of a consent form by the parties and for filing such form with the clerk of court. No consent form will be made available, nor will its contents be made known to any judge or magistrate, unless all parties have consented to the reference to a magistrate. No magistrate, judge, or other court official may attempt to persuade or induce any party to consent to the reference of any matter to a magistrate. This rule, however, shall not preclude a judge or magistrate from informing the parties that they may have the option of referring a case to a magistrate. Local Rule VII, no. 1. Referral of Civil Cases to Magistrate (b) Execution of Consent.	{ "pile_set_name": "FreeLaw" }
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CURTIS L. WILLIAMS, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED v. CASE NO. 1D14-3959 STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed March 5, 2015. An appeal from an order of the Circuit Court for Escambia County. Gary L. Bergosh, Judge. Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. WOLF, BENTON, and RAY, JJ., CONCUR.	{ "pile_set_name": "FreeLaw" }
02-11-101-CR COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00101-CR Coty Ray Hunt APPELLANT V. The State of Texas STATE ---------- FROM Criminal District Court No. 3 OF Tarrant COUNTY ---------- MEMORANDUM OPINION[1] ---------- I. Introduction Appellant Coty Ray Hunt appeals his conviction on two counts of aggravated robbery with a deadly weapon. We will affirm. II. Background On the evening of April 28, 2010, Hunt entered an Albertsons grocery store, made his way to a private office, and ordered two store employees at gunpoint to give him money. The employees complied, and Hunt made off from the store with the money. Authorities eventually arrested Hunt and found a .45 semiautomatic handgun, which matched the description of the gun used during the robbery, in the same vehicle that Hunt was riding in when he was arrested. Hunt admitted to investigators that he committed the robbery, but he claimed to have used a fake BB gun during the offense. A jury convicted Hunt on both counts of aggravated robbery with a deadly weapon and assessed his punishment at life imprisonment for both counts. The trial court sentenced Hunt in accordance with the jury’s verdicts. III. Disabled Juror and Continuation of Trial In his first point, Hunt argues that the trial court abused its discretion by dismissing a juror as disabled and continuing the trial with eleven jurors. He contends that “[t]here was insufficient proof to show that Juror [S.] was disabled from jury service” and that “the trial court abused its discretion by not simply recessing the trial for a day.”[2] The Texas constitution requires a jury in a felony criminal trial to be composed of twelve members. Tex. Const. art. V, § 13. But if a juror dies or becomes “disabled” from sitting, the remaining impaneled jury has the power to render the verdict. Id.; see Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2011) (providing that after a felony trial “begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict.”). A juror is disabled when the juror is physically, emotionally, or mentally impaired in some way that hinders his or her ability to perform the duty of a juror. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App.), cert. denied, 528 U.S. 956 (1999); see Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000) (stating that disability is not limited to physical disease, but also includes any condition that inhibits a juror from fully and fairly performing the functions of a juror). The determination of whether a juror is disabled is within the discretion of the trial court. Brooks, 990 S.W.2d at 286. The record demonstrates that after the jury was impaneled and sworn but before opening arguments were made, Juror S. notified the trial court of her concern about sitting on the jury because she had to take her mother to a doctor’s appointment.[3] The trial court initially asked Juror S. to find “someone else to take care of the doctor’s appointment,” but Juror S. stated that she did not “have anybody else.” Juror. S. explained that her eighty-two-year-old mother had fallen down two weeks earlier, puncturing her lung and breaking a rib, and that her mother needed an EKG “to make sure that she doesn’t get pneumonia in her lungs.” Juror S. made a phone call to see if she could find someone to take her mother to the appointment, but she was unsuccessful after speaking to both her mother and her father. Juror S. told the trial court that it had taken “an hour just for her [mother] to even understand who she’s talking to -- to even get through to -- she say[s] she’s hurting, she’s laying in the bed, I mean.” After the trial court questioned Juror S. some more, the State questioned her, and the following exchange took place: [Prosecutor]: Here’s the question, and only you can answer that. As you sit here right now, are you going to be sitting there thinking about your mom? [Juror S.]: Yes. [Prosecutor]: How she’s doing? [Juror S.]: Very much so after this phone call. [Prosecutor]: You look like you’re very upset. [Juror S.]: I am. [Prosecutor]: You look like you’re probably near tears. [Juror S.]: Yes. [Prosecutor]: Is it to the point where you’re not going to be able to give this trial your full consideration? [Juror S.]: I won’t. [Prosecutor]: I can tell you’re about to start crying. [Juror S.]: I don’t, because she just told me she’s hurting so. [Prosecutor]: And for the record you are -- [Juror S.]: I’m very upset. [Prosecutor]: -- have begun crying. So you’re not going to be able to give this trial your full attention? You’re shaking your head no. [Juror S.]: No. [Prosecutor]: You won’t be able to concentrate and listen to the evidence -- [Juror S.]: Right. [Prosecutor]: -- because you’re going to be so preoccupied with your mother’s health condition and her situation. [Juror S.]: Correct. The trial court decided to dismiss Juror S. from service “due to the illness of [her] mother and the funeral and the fact that those two things combined would not allow [her] to concentrate on this trial.” Based on the foregoing, the trial court could have reasonably concluded that Juror S. was emotionally inhibited from fully and fairly performing the functions of a juror. See Reyes, 30 S.W.3d at 411; Brooks, 990 S.W.2d at 286. Accordingly, we hold that the trial court did not abuse its discretion by concluding that Juror S. was disabled from sitting on the jury. See Tex. Code Crim. Proc. Ann. art. 36.29(a); see also Stephens v. State, 276 S.W.3d 148, 152 (Tex. App.—Amarillo 2008, pet. ref’d) (holding that trial court did not abuse its discretion by dismissing juror as disabled due to “an emotional state which hindered her ability to perform her duties as a juror”). To the extent that Hunt argues the trial court abused its discretion by not recessing the trial after dismissing Juror S., article 36.29 requires the trial to proceed with eleven jurors if a juror becomes disabled. See Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002). We overrule Hunt’s first point. IV. Mistrial In his second point, Hunt argues that the trial court erred by denying his motion for mistrial after the trial court sustained his objection to part of the State’s jury argument. When the trial court sustains an objection and instructs the jury to disregard but denies a defendant’s motion for a mistrial, the issue is whether the trial court abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). When the refusal to grant a mistrial follows an objection for improper jury argument, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Only in extreme circumstances, when the prejudice caused by the improper argument is incurable, i.e., “so prejudicial that expenditure of further time and expense would be wasteful and futile,” will a mistrial be required. Hawkins, 135 S.W.3d at 77. In most instances, an instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We review a trial court’s ruling on a motion for mistrial for an abuse of discretion. Hawkins, 135 S.W.3d at 77. The trial court sustained Hunt’s “outside-the-record” objection but denied his motion for mistrial in regard to this part of the State’s closing argument at the guilt/innocence phase: “And you know that car when [Hunt] was arrested was taken into police custody and held in a secure bay until they could get a search warrant. Mandy Harvell calls, and I know that that’s his girlfriend, and I suspect there’s a whole lot more involved there.” [Emphasis added.] Assuming without deciding that the State’s argument—implying that Harvell was involved in the underlying offense in some way—was improper, we cannot conclude that the trial court abused its discretion. Hunt objected that the State’s argument referenced facts that were outside of the record, but there was evidence from which the jury could reasonably have inferred that Harvell was involved in the robbery—Harvell was Hunt’s girlfriend, Harvell was arrested when Hunt was arrested, Harvell’s vehicle was used during the robbery, and the gun that Hunt used during the robbery was found in Harvell’s vehicle. Also, the State later made the following related argument that Hunt did not object to: He mentioned immunity. Here’s how it works. When we believe someone is a party to an offense, we would have to require that we cut a deal with them, give them immunity for their testimony. Make no mistake, we fully believe Mandy Harvell was a party to this crime, and we’re not willing to do that. We’re not going to cut a deal with her for what he did. Hunt argues that the State “continued with [its] interjection of improper and unknown facts into the case” during an exchange in which the State objected to part of defense counsel’s closing argument and said that “[c]ounsel knows that we could not call Ms. Harvell,” but the State’s comment was not part of its closing argument, and it occurred before the State’s unobjected-to argument regarding immunity for Harvell. In light of all of this, the severity of the alleged improper argument was considerably low. As for the remaining factors that we must balance, the trial court immediately instructed the jury to disregard the prosecutor’s argument, and there is nothing in the record indicating that the jury did not do so. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (stating that in the absence of evidence to the contrary, appellate court presumes that jury followed instruction to disregard). Further, the certainty of Hunt’s conviction was high absent the alleged improper argument.[4] We hold that the trial court did not abuse its discretion by denying Hunt’s motion for mistrial. We overrule Hunt’s second point. V. Conclusion Having overruled both of Hunt’s points, we affirm the trial court’s judgments. BILL MEIER JUSTICE PANEL: DAUPHINOT, GARDNER, and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: March 15, 2012 [1]See Tex. R. App. P. 47.4. [2]Contrary to the State’s initial arguments, Hunt preserved these arguments for appellate review. [3]Juror S. also had a funeral to attend in Dallas. [4]The evidence showed that the individual responsible for committing the robbery wore a white baseball cap during the offense. Veronica Anderson, a service operations manager with Albertsons, testified that she returned to the store after the robbery and watched the video footage captured by the store’s surveillance cameras. Shortly thereafter, on her way home, she found a white baseball cap lying on the side of the road about one mile from the store. Subsequent testing revealed that the profile from biological material obtained from the white cap matched the profile from a buccal swab that authorities obtained from Hunt.	{ "pile_set_name": "FreeLaw" }
189 Kan. 419 (1962) 370 P.2d 390 PERRY A. MAY, Appellant, v. SANTA FE TRAIL TRANSPORTATION COMPANY, a corporation, CLARENCE OFFENSTEIN, WILLIAM D. BRAY and FRANK W. JESTER, Appellees. No. 42,416 Supreme Court of Kansas. Opinion filed April 7, 1962. Manford Holly, of Wichita, argued the cause and was on the brief for the appellant. J.B. Reeves, of Topeka, argued the cause, C.J. Putt, W.E. Treadway and William A. Walton, all of Topeka, were with him on the brief for the appellees. The opinion of the court was delivered by SCHROEDER, J.: This is an action against the Santa Fe Trail Transportation Company and three of its officials for an alleged unlawful 420 discharge of the plaintiff from employment. Appeal has been perfected from an order of the trial court sustaining a demurrer to the second amended petition as amended (hereafter referred to as the petition). The question is whether the petition states a cause of action on the ground that the defendants (appellees) unlawfully conspired to cause the discharge of the plaintiff (appellant) from employment. The petition is framed in two counts wherein damages in the total sum of $98,640 are sought. In the first count the appellant seeks actual damages and in the second count punitive damages. Insofar as material herein the petition alleges that the appellant was employed by the Santa Fe since the year 1931 as a welder in the body shop under an oral contract of employment, and "that there was no agreement except as to wages and hours of work, which was from 8:00 a.m. to 5:00 p.m., each working day." On August 6, 1959, he was not feeling well and at noon notified the appellee, William D. Bray, foreman of the body shop, that he was ill and unable to work in the afternoon. After notifying Mr. Bray he "clocked out." Thereupon, the appellant returned home and rested the remainder of the day, and on the following day when his condition had not improved his wife advised the appellee, Frank W. Jester, shop superintendent and agent of the Santa Fe, by telephone that the appellant was not well and was unable to return to work that day because he was going to the doctor. On that day, August 7, 1959, the appellant was treated by a chiropractor, and on the following day he was treated by a medical doctor. The petition then specifically alleged: "That on the following Monday, August 10, 1959, when his condition had improved sufficiently, the plaintiff returned to work, and was preparing to `clock in' when he was advised by the aforementioned defendants Bray and Jester that he had voluntarily quit and was no longer considered by the company as an employee of the defendant company. That the plaintiff insisted and advised the agents and employees of the defendant company, the above mentioned defendants Bray and Jester, that he had not voluntarily quit; but all to no avail. That the defendant Jester joined with the defendant Clarence Offenstein, who was the general manager of the Eastern Division of the defendant company, in declaring that the plaintiff had voluntarily terminated, when in truth and fact he had not done so. "... That the agents of the defendant company knew or should have known that the plaintiff had not voluntarily quit or terminated his employment. That the defendant company, acting by and through its agents, as above alleged, 421 knowingly and deliberately acted to the detriment and damage of this plaintiff in refusing him admittance to the premises and employment as above alleged and in reporting to their company superiors that the plaintiff had voluntarily terminated his employment with the defendant company. "That this plaintiff had provoked the ire of his superiors above named herein, by making complaints about bad working conditions, and the defendant company acting by and through the co-defendants herein desiring to discharge the plaintiff, and by fraud and subterfuge as alleged herein, deliberately, wrongfully and without just cause declared that the plaintiff had voluntarily terminated, when in truth and in fact he had not done so. "That the defendants, Clarence Offenstein, William D. Bray and Frank W. Jester, as agents, servants and employees of the defendant company, acted jointly and concurrently in all the acts of commission and omission as alleged herein." Further allegations set forth the appellant's tenure of office, seniority rights, life expectancy and average weekly earnings. The second count incorporated the allegations of the first and alleged that the appellees "acted jointly and concurrently in a conspiracy which amounted in law and in fact to intentional and deliberate fraud and subterfuge, for the specific purpose of harming this plaintiff in his contract of employment with the defendant company, subjecting the defendants to liability for punitive damages." The appellant concedes that unless a cause of action is stated in Count I for actual damages no cause of action is stated in Count II which would entitle him to recover punitive damages. (Stoner v. Wilson, 140 Kan. 383, 394, 36 P.2d 999; Estell v. New Amsterdam Gas Co., 164 Kan. 712, 192 P.2d 194; Branstetter v. Robbins, 178 Kan. 8, 14, 283 P.2d 455; and Local Union No. 795 v. Kansas for the Right to Work, 189 Kan. 115, 368 P.2d 308.) The appellant's brief is confined to two pages in which he quotes authorities defining "conspiracy" and the meaning of the word "unlawful." He cites Rogers v. J.R. Oil and Drilling Co., 149 Kan. 807, 89 P.2d 847, for the essentials necessary to plead conspiracy, and Rickel v. Cooperative Exchange, 113 Kan. 592, 600, 215 Pac. 1015, and Hutson v. Imperial Royalties Co., 135 Kan. 718, 13 P.2d 298, for the proposition that a conspiracy may be established by circumstantial evidence. (See, also, State v. Borserine, 184 Kan. 405, 337 P.2d 697.) The contract of employment alleged by the appellant in his petition was an oral contract of employment, indefinite as to time, and terminable at the will of either party. 422 The appellant's initial petition was squarely based upon a contract between the Santa Fe Trail Transportation Company and the National Association of Machinists of which the appellant alleged he was a member, and that he was being deprived of his rights under this union contract. The union contract was attached and made a part of the petition by incorporation. It exhaustively covered all matters relating to conditions of employment, including such items as rates of pay, hours of service, seniority, hospitalization, vacations and working conditions. It also had an article dealing with "grievances and arbitration." The trial court sustained a demurrer to this initial petition of the appellant and granted him time to file an amended petition. The second amended petition as amended, which is presently before the court, eliminates all reference to a "union contract" or to the appellant's membership in the union. He merely alleges that his contract of employment was oral, and that there was no agreement except as to wages and hours of work, which were from 8:00 a.m., to 5:00 p.m., each working day. Here on demurrer we are confined to the facts of the petition presently before the court. It merely alleges an oral contract of employment, and makes no reference to a union contract or union membership. In the absence of a contract, express or implied, between an employee and his employer covering the duration of such employment, no action for discharging the employee from service can be maintained against the employer. (Swart v. Huston, 154 Kan. 182, 117 P.2d 576, Syl. ¶ 4.) Decisions of the Tenth Circuit Court of Appeals and of the Federal District Court of Kansas are in harmony with the rule in the Swart case. (Mitchell v. Stanolind Pipe Line Co., [U.S.C.A. 10th], 184 F.2d 837; Boatright v. Steinite Radio Corp., [C.C.A. 10th], 46 F.2d 385; and Kunz v. Colnon, [D.C. Kan.], 54 F. Supp. 673.) In Mitchell v. Stanolind Pipe Line Co., supra, the court held: "... It is not the function of the courts in the absence of a contract to compel a person to accept or retain another in his employ, nor is it the function of the courts to compel any person against his will to remain in the employ of another. Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441; Adair v. United States, 208 U.S. 161, 174, 28 S.Ct. 277, 52 L.Ed. 436. This leaves only the question of whether defendant owed plaintiff any legal duty to retain him in its employ. No claim is made that the discharge 423 was in violation of any right given the plaintiff by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., or by any state law. No question of public health, safety or welfare is involved so we have no difficulty in determining that the complaint did not state a cause of action. In the absence of a contract or statutory provision an employer may discharge an employee without cause or reason and owes no duty to continue the employment of an employee. 35 Am. Jur., Master and Servant, Sec. 34." (p. 838.) For other authorities of like effect see, Coxon v. Southern Pac. Co., [C.C.A. 9th], 155 F.2d 455; Elder v. New York Cent. R. Co., [C.C.A. 6th], 152 F.2d 361; and 31 Am. Jur., Labor, § 8, p. 390.) The rule concerning seniority right of an employee was stated in Elder v. New York Cent. R. Co., supra, as follows: "The seniority right of the man who toils, indoors or out, in a shop or in an office, is a most valuable economic security, of which he may not be unlawfully deprived. The right, however, is not inherent. It must stem either from a statute or a lawful administrative regulation made pursuant thereto, or from a contract between employer and employee, or from a collective bargaining agreement between employees and their employer. In the absence of statute, mere employment independent of the contractual conferring of special benefits upon those who have longest service records with the individual employer, creates no rights of seniority in retention in service or in reemployment...." (p. 364.) In the instant case the appellant asserts no statute or administrative regulation made pursuant thereto, or contract, or collective bargaining agreement conferring special benefits upon him by reason of long service or seniority rights. Where the plaintiff has alleged an oral contract of employment that is terminable at the will of either party, he has alleged no cause of action for breach of contract by alleging that he has been discharged. Merely adding the words and phrases, "conspiracy," "deliberate fraud and subterfuge," "deliberately, wrongfully and without just cause," and "unlawfully and wrongfully," to an action for alleged breach of contract of employment does not transform the action into one based upon conspiracy. (McGill v. Kuhn, 186 Kan. 99, 348 P.2d 811; Sullivan v. Paramount Film Distributing Co., 164 Kan. 125, 187 P.2d 360; and Rogers v. J.R. Oil and Drilling Co., supra.) This court said in Browning v. Blair, 169 Kan. 139, 218 P.2d 233: "Does the amended petition state facts sufficient to constitute actionable fraud or conspiracy? The words fraud and conspiracy alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity until connected with some specific act for which one person is in law responsible to another; they have no more effect than other words of unpleasant 424 signification.... Before there can be a civil action for conspiracy, the pleader must plead facts which establish the elements required as a matter of law. And by a complete failure to plead any unlawful act or acts, this amended petition must fall as to the conspiracy...." (p. 147.) No specific acts are alleged in the petition for which the appellees are in law responsible to the appellant. It is readily apparent that a joint liability for conspiracy cannot be pleaded as to the corporate defendant on the one hand and the individual defendants on the other. If the corporate defendant is liable at all, it has to be liable for a breach of contract. There is no way that the corporate defendant can be guilty of inducing itself, or "conspiring" with itself to take a course of action that it may lawfully take concerning its own contract. (Allison v. American Airlines, [U.S.D.C., N.D. Okla.], 112 F. Supp. 37.) The only question remaining is whether the individual defendants were without privilege to take the actions alleged. The petition specifically named the individual defendants, indicating the respective positions held by these individuals with the defendant company. There is no allegation that the individual defendants acted in any capacity other than their official corporate capacity on behalf of the defendant corporation. There is no suggestion that the individual defendants were acting in their individual capacities, or for their individual advantage. There is no allegation that the individual defendants acted outside the scope of their authority. The petition must therefore be construed to allege that the individual defendants acted in their official capacity and pursuant to their confidential relationship with the defendant corporation. Where, as here, the individual defendants are named and described as officials of the corporate defendant in the petition, with no allegations that these defendants acted other than in their official capacities on behalf of the corporate defendant, and no allegation remotely indicates that they were pursuing their course as individuals or for individual advantage, the acts of the individual defendants must be regarded as the acts of the corporation, and when so acting they cannot conspire with the corporation of which they are a part. (Bliss v. Southern Pacific Co. et al, [1958], 212 Or. 634, 321 P.2d 324.) While it is true that an action will lie for unjustifiably inducing a breach of contract by a party thereto, the inducement must be 425 wrongful and not privileged. Under circumstances similar to those alleged herein, even a breach of contract induced by one who is in a confidential relationship with a party to the contract is privileged. Thus, a servant may induce his master to breach a contract with a third person. (Lawless v. Brotherhood of Painters, [1956], 143 C.A.2d 474, 300 P.2d 159.) For other cases to the effect that a corporate official, acting for and on behalf of his corporation, or a servant acting for and on behalf of his master, is privileged to induce a breach of contract see Allison v. American Airlines, supra; Baruch v. Beech Aircraft Corporation, [U.S.C.A. 10th], 175 F.2d 1; 26 A.L.R.2d 1270; 30 Am. Jur., Interference, § 37, p. 82; and 3 Fletcher Cyclopedia Corporations [1947 Rev. Ed.], § 1001, p. 501. A fortiori, the officers and agents of a corporation, acting for and on behalf of their corporation, would not be liable for inducing action by the corporation which it could lawfully undertake to do under a contract of employment. Under such circumstances the conduct of the officers and agents of the corporation is privileged. Inasmuch as the petition has alleged no unlawful act of the corporate defendant terminating the appellant's employment with the corporation, and the conduct of the officials of the corporation was privileged, the trial court did not err in sustaining the demurrer to the appellant's petition. The judgment is affirmed.	{ "pile_set_name": "FreeLaw" }
cc: Hon. Elissa F. Cadish, District Judge Carl E. G. Arnold Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk Ronnie Dion Edwards SUPREME COURT OF NEVADA 2 (0) 1947A	{ "pile_set_name": "FreeLaw" }
J-S24035-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES M. ARMENTROUT, JR., : : Appellant : No. 1486 MDA 2017 Appeal from the Judgment of Sentence July 21, 2017 in the Court of Common Pleas of York County, Criminal Division at No(s): CP-67-CR-0005195-2016, CP-67-CR-0006540-2016 BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED JULY 19, 2018 James M. Armentrout, Jr. (“Armentrout”), appeals from the judgment of sentence imposed following his convictions of two counts each of fleeing or attempting to elude police and driving while operating privilege is suspended, and one count each of failure to stop at a red signal, reckless driving, and recklessly endangering another person. See 75 Pa.C.S.A. §§ 3733(a), 1543(a), 3112(a)(3)(i), 3736(a); 18 Pa.C.S.A. § 2705. We affirm. On June 17, 2016, police attempted to stop Armentrout’s vehicle for failing to have working lights around the license plate. Armentrout led police on a high-speed chase through York City, at a speed of approximately fifty to sixty miles per hour, while running several red lights. Police ultimately stopped the pursuit in the interests of public safety. Thereafter, police issued a warrant for Armentrout’s arrest. J-S24035-18 On June 18, 2016, police attempted to apprehend Armentrout, who was driving his vehicle, in the parking lot of a local business. As officers instructed Armentrout to exit the vehicle, he turned his vehicle and accelerated toward the officers, at which time the officers fired several gunshots at Armentrout’s vehicle. Armentrout managed to flee the parking lot and led police on another high-speed chase through a densely populated area of York City. Even with assistance from other departments, the police were unable to keep up with Armentrout’s vehicle and ended the pursuit. Armentrout was subsequently arrested at Hanover Hospital, where he sought treatment for a gunshot wound. Armentrout was charged under two criminal informations, and the cases were consolidated. In May 2017, a jury found Armentrout guilty of the above-mentioned crimes. On July 21, 2017, the trial court imposed an aggregate sentence of seven years, six months to fifteen years in prison.1 Armentrout filed a timely Post-Sentence Motion, which the trial court denied. Armentrout filed a timely Notice of Appeal and a court-ordered Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Armentrout now raises the following issues for our review: ____________________________________________ 1 Armentrout received aggravated sentences of three years and three months to six years and six months for the fleeing or attempting to elude convictions. He also received a sentence of one to two years for reckless endangerment. The trial court imposed these sentences consecutively. -2- J-S24035-18 1) Whether the trial court abused its discretion by improperly excessively sentencing Armentrout based on factors that constitute elements of the offense[?] 2) Whether the trial court abused its discretion by improperly excessively sentencing Armentrout based upon the severity or gravity of the [o]ffense[?] Brief for Appellant at 4. Armentrout challenges the discretionary aspects of his sentence. “Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue, [this Court conducts] 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 the appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). *** The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Moury, 992 A.2d at 170 (quotation marks and some citations omitted). Here, Armentrout filed a timely Notice of Appeal, preserved his sentencing claims in a Post-Sentence Motion, and included a Rule 2119(f) -3- J-S24035-18 Statement in his brief. Further, Armentrout’s claim that the trial court improperly imposed an aggravated-range sentence based on a factor that was an element of the offense raises a substantial question. See Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa. Super. 2006) (holding that a substantial question is raised when the appellant challenges whether the trial court improperly based an aggravated range sentence on a factor that constituted an element of the offense). Moreover, Armentrout’s claim that the trial court improperly imposed an aggravated range sentence because it “double counted” the severity or gravity of the offenses raises a substantial question. See Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) (stating that “when fashioning a sentence, a sentencing court may not ‘double count’ factors already taken into account in the sentencing guidelines.”) (citations omitted). Thus, we will review Armentrout’s sentencing claims. Our standard of review is as follows: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010) (citation omitted). We will address both of Armentrout’s claims together. Armentrout claims that the trial court abused its discretion by imposing aggravated-range -4- J-S24035-18 sentences based on elements of 75 Pa.C.S.A. § 3733(a). Brief for Appellant at 25, 27-28. Specifically, Armentrout argues that the trial court justified the sentence by relying on the fact that Armentrout fled from police at a high rate of speed, thereby endangering the public, which is an element of the offense. Id. at 27-28. Moreover, Armentrout claims that the trial court abused its discretion by double-counting his prior criminal record and the severity of the present offense, which are already contemplated by the sentencing guidelines. Id. at 28-32. Our review of the record discloses that the trial court reviewed and considered Armentrout’s pre-sentence investigation report. N.T., 7/21/17, at 10-11, 14, 45. The trial court also considered his mental health/anxiety issues, his drug and alcohol problems, and his completion of two parenting classes, a relapse prevention class, and the Thinking For A Change program while in prison. Id. at 46. The court further noted Armentrout’s criminal history and rehabilitative potential. Id. at 41-42, 46. The trial court considered his apology and statements of remorse. Id. at 19, 23, 46. Additionally, the trial court took into account the fact that the offenses were committed on two separate days, which gave Armentrout two separate opportunities to make conscious decisions of wrongdoing. Id. at 48. Moreover, the court considered the impact that these crimes had on the community. Id. at 30, 33-34, 48. Last, the trial court considered -5- J-S24035-18 Armentrout’s statements indicating “an intent to kill the police officers who were involved in this case if he’s sent upstate.” Id. at 47. Here, in imposing the sentence, the trial court stated that it reviewed a pre-sentence investigation report and took into account Armentrout’s prior criminal history, his potential for rehabilitation, and the impact on the community. See Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (stating that “where the trial court is informed by a pre-sentence report, it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed.”) (citation omitted); see also Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (stating that in sentencing, the trial court “is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant’s prior criminal record, his age, personal characteristics, and his potential for rehabilitation.”) (citation omitted). Further, it is clear from the record that the trial court did not “double count” Armentrout’s prior criminal history or the nature or elements of the crimes; instead, the trial considered a number of factors in rendering the sentence. See Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super. 1998) (rejecting defendant’s argument that the sentencing was focused on his prior criminal history in imposing the sentence, as a review of the record -6- J-S24035-18 demonstrated that the court took a number of factors into consideration); see also Griffin, 804 A.2d at 10 (noting that our law requires a sentencing court “to consider the prior criminal record to ascertain a defendant’s amenability to rehabilitation[.]”). In light of the foregoing, we discern no abuse of discretion, and cannot grant Armentrout relief on his claims. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 07/19/2018 -7-	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,342-01 EX PARTE MICHAEL LEE ELLIOTT, JR., Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 40147A IN THE 33RD DISTRICT COURT FROM BURNET COUNTY Per curiam. ORDER Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of certain chemicals with intent to manufacture a controlled substance and sentenced to fifty years’ imprisonment. The Third Court of Appeals affirmed his conviction. Elliott v. State, No. 03-12- 00793-CR (Tex. App. — Austin, July 2, 2014). Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance 1 This Court has reviewed Applicant’s other claims, and finds them to be without merit. 2 because trial counsel advised Applicant incorrectly regarding the punishment range for the offense charged. Applicant alleges that trial counsel advised him to plead guilty in order to receive a lower sentence, but that counsel advised him that the maximum sentence he could receive if convicted by a jury would be twenty years’ imprisonment. In fact, the offense as charged was a second degree felony enhanced to first degree felony punishment range by a single prior felony conviction. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. Specifically, trial counsel shall state what advice, if any he gave to Applicant regarding the punishment range for the offense charged. If there were plea offers made prior to trial, trial counsel shall state what the terms of those plea offers were, and whether he advised Applicant of the pros and cons of pleading guilty versus going to trial on the charges. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04. The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and 3 conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: February 3, 2016 Do not publish	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED February 26, 2015 Plaintiff-Appellee, v No. 318879 Barry Circuit Court MERWIN SAM SUTHERLAND, LC No. 12-100081-FH Defendant-Appellant. Before: BECKERING, P.J., and BORRELLO and GLEICHER, JJ. PER CURIAM. Defendant, Merwin Sam Sutherland, appeals as of right his jury trial conviction for assault and battery, MCL 750.81(1). The trial court sentenced him to 45 days in jail and 24 months of probation. We affirm. I. PERTINENT FACTS Defendant’s conviction arises out of an altercation that led to the death of Randy Baker outside the Woodland Townhouse bar on North Main Street in Woodland. On January 7, 2012, defendant and Randy were at the bar. One witness testified that upon defendant’s arrival at the bar, Baker became tense; however, another witness testified that defendant and Baker were friends. While defendant was at the establishment, he sat at the bar with Baker and they discussed military service. Witness testimony differed regarding whether the conversation escalated into an argument. Witnesses testified that after the bar closed and people were walking to their cars, defendant and Baker got into an argument when some bystanders made a comment about one of Baker’s acquaintances, Michelle Bender. Baker’s ex-wife, Deborah Baker, testified that Baker began swearing at defendant. According to Deborah, defendant shoved Baker against the outside wall of the bar, causing Baker to fall to the ground. Later, defendant and Baker began walking away, and Baker, who was intoxicated, fell to the ground once again. It appeared to Deborah that defendant was going to strike Baker while he was on the ground, so she called out to him in order to stop him from hitting Baker. Defendant complied with her request, and Baker got up and resumed walking down the street. Baker and defendant began to argue as they continued walking down the street. Eventually, defendant punched Baker one time in the face, knocking him to the ground. It was -1- undisputed that Baker fell to the ground after the punch, striking his head. Approximately one week later, Baker died from injuries suffered in the fall. According to some of the witnesses present, defendant and Baker were some distance apart immediately preceding the punch, and defendant ran toward Baker before ultimately striking the fatal blow. One witness recalled that defendant was approximately 150 feet away from Baker and that defendant ran toward Baker in order to punch him. The witness recalled that, preceding the punch, Baker yelled obscenities at defendant. Another witness recalled that Baker was approximately 60 feet away from defendant when defendant decided to run toward and strike him. According to this witness, defendant could have gotten into his vehicle and left, but he turned to run toward Baker. Defendant testified on his own behalf and admitted that he punched Baker, but claimed that he acted in self-defense. According to defendant, Baker, who was much larger, was behaving aggressively toward him. After the incident with Bender, Baker said something about inflicting violence on someone and pointed at defendant while saying this. The way Baker looked at him while saying this made defendant believe that Baker intended to harm him. Defendant, along with Ronald Piercefield, a defense witness, testified that Baker charged at defendant. Defendant testified that he initially backed away from Baker, but Baker continued to come after him. One of the bartenders, Jessica Dies, corroborated defendant’s testimony that Baker pursued defendant after they left the bar. Defendant testified that Baker continued to walk toward him despite his attempts to ward off an altercation, which prompted him to tell Baker that he would punch him if he continued to approach. According to defendant, Baker continued to approach, so defendant punched him. Defendant testified that he felt he needed to protect himself from Baker. The jury convicted acquitted defendant of a charge of involuntary manslaughter, but convicted him of the lesser offense of assault and battery. II. MRE 404(b) EVIDENCE Before trial, the prosecution moved the trial court to admit evidence of several prior acts under MRE 404(b). Some of the evidence was admitted at trial and some of it was excluded for reasons not relevant to this appeal. The only evidence at issue on appeal is testimony from Brandy Logan, a bartender at the Pit Row bar, indicating that in the winter of 2011, Baker, at Logan’s request, escorted defendant and Piercefield out of that bar. Logan did not testify concerning the reason why she asked Baker to escort defendant and Piercefield from the bar. The prosecution proffered this evidence for the purpose of showing that defendant may have had a motive to fight with Baker on the night of January 7, 2012, and therefore he did not punch Baker in self-defense. The trial court admitted the evidence for that purpose. When testifying on his own behalf, defendant recalled that he had been escorted out of the bar, but did not remember that it was Baker who had escorted him. Likewise, Piercefield did not remember that it was Baker who had escorted him out of the bar. Defendant claims that Logan’s testimony was not relevant to the purpose for which it was offered and that its probative value was substantially outweighed by the unfair prejudice to defendant. -2- We review this preserved evidentiary issue for an abuse of discretion. People v Orr, 275 Mich App 587, 588; 739 NW2d 385 (2007). Evidence of other crimes, wrongs, or acts “is inadmissible to prove a propensity to commit such acts.” People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). However, such evidence may be admissible for other purposes under MRE 404(b)(1), which states as follows: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. To determine admissibility under MRE 404(b), this Court uses the following standard. First, the evidence must be offered “for a proper purpose under Rule 404(b)[.]” People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). Second, the evidence must be relevant under MRE 402. Id. Third, the probative value of the evidence must not be substantially outweighed by unfair prejudice. Id. If the trial court deems the evidence admissible, it may, upon request, provide a limiting instruction to the jury. Id. Here, the prosecution offered evidence that Baker escorted defendant out of the Pit Row bar to show that defendant had a motive to assault Baker. This was a proper purpose under MRE 404(b)(1). People v Hoffman, 225 Mich App 103, 105; 570 NW2d 146 (1997). Prior acts by a victim may be relevant under MRE 404(b) to the issue of self-defense to show a defendant’s motive. People v Taylor, 195 Mich App 57, 61; 489 NW2d 99 (1992). Because the prosecution offered this evidence for a proper purpose under MRE 404(b), the first prong of the VanderVliet standard is satisfied. VanderVliet, 444 Mich at 55. With regard to relevance, the prosecution argues that the prior incident between the men is relevant to show that defendant may have had a motive for starting an altercation with Baker, i.e., revenge for Baker forcing defendant to leave the Pit Row. Defendant argued that he punched Baker in self-defense, and the trial court instructed the jury as to the elements of self- defense. Self-defense excuses an otherwise unlawful act where “the defendant acted out of fear of death or serious bodily harm.” People v Dupree, 284 Mich App 89, 100-101; 771 NW2d 470 (2009). The fact that defendant may have had a motive for punching Baker other than his alleged fear of death or serious bodily harm was relevant for determining whether he punched Baker in self-defense. See Taylor, 195 Mich App at 59-61. Therefore, the evidence was relevant under MRE 404(b) and the second prong of the VanderVliet standard is satisfied. VanderVliet, 444 Mich at 55. In arguing that the evidence was irrelevant, defendant points to his testimony on direct examination in which he stated that he did not recall Baker being present when he was escorted out of the Pit Row. According to defendant, if he did not know that Baker was the person who escorted him out of the Pit Row, the evidence was not probative of his motive. We disagree. Defendant’s challenge goes to the weight of the evidence, not its admissibility, and weighing the evidence was a task for the jury. See People v Wager, 460 Mich 118, 126; 594 NW2d 487 -3- (1999) (a challenge as to the weight of evidence “is for the parties to argue before the finder of fact.”). Even if evidence is relevant under 404(b), it is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice. VanderVliet, 444 Mich at 55, 74-75; MRE 403. For evidence to be unfairly prejudicial, there must be a probability that “evidence which is minimally damaging in logic will be weighed by the jurors substantially out of proportion to its logically damaging effect . . . .” People v Murphy (On Remand), 282 Mich App 571, 583; 766 NW2d 303 (2009) (quotation marks omitted). The evidence that Baker escorted defendant out of the Pit Row bar was probative to show that there may have been “bad blood” between the two, as the trial court characterized the evidence, and that defendant may not have simply punched Baker in self-defense. Taylor, 195 Mich App at 59-61. And the probative value of the evidence was not outweighed by a danger of unfair prejudice. Generally, such a danger exists when evidence of prior acts creates a danger that a jury will conclude that because a defendant committed a certain bad act in the past, he must have had a propensity to commit the charged act. Crawford, 458 Mich at 398. However, in this case, the evidence regarding the Pit Row incident did not address defendant’s behavior at all, only what Baker did to him. Therefore, there was little danger that the jury impermissibly inferred from the evidence that defendant committed the crimes for which he was charged. Id. In sum, the evidence was admissible under 404(b), VanderVliet, 444 Mich at 55, and the trial court did not abuse its discretion in admitting this evidence, Orr, 275 Mich App at 588.1 Affirmed. /s/ Jane M. Beckering /s/ Stephen L. Borrello /s/ Elizabeth L. Gleicher 1 In addition to challenging the other-acts evidence for the purpose of showing motive, defendant argues that the trial court abused its discretion by admitting the other-acts evidence to show a common plan or system. The record does not support this assertion of error, as the record reveals that the evidence was neither admitted nor used for such a purpose. Thus, we need not address this assertion of error. -4-	{ "pile_set_name": "FreeLaw" }
253 Ga. 649 (1984) 322 S.E.2d 892 PRATER v. WHEELER. 41618. Supreme Court of Georgia. Decided December 4, 1984. Rehearing Denied December 18, 1984. Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, for appellant. Howe, Sutton & McCreary, Timothy A. McCreary, for appellee. MARSHALL, Presiding Justice. The final divorce decree of the parties awarded permanent custody of the parties' 14-year-old son and his seven-year-old brother to the appellant-father with certain visitation rights to the appellee-mother. The mother filed an action for contempt for the father's alleged wilful failure to abide by the final judgment and decree of divorce by wilfully interfering with her visitation and, in particular, the father allegedly claimed that the older minor child does not have to visit with the petitioner-mother because the said child is 14 years of age. After a hearing, the trial judge entered an order holding the defendant-father in wilful contempt as regards the issue of visitation, providing that the father be allowed to purge himself of this contempt by compliance with the visitation provisions of the divorce decree, and issuing a supersedes as to visitation by the 14-year-old conditioned upon the father's seeking an expedited appeal, which this court has granted. Held: A child who has reached the age of 14 years has the right to select the parent who will have custody of the child, if such parent is determined by the court to be a fit and proper custodian. OCGA §§ 19-9-1 (a), 19-9-3 (a). "Visitation privileges are, of course, part of custody. [Cit.]" Ledford v. Bowers, 248 Ga. 804, 805 (1) (286 SE2d 293) (1982). "`A divorced parent has a natural right of access to his child 650 awarded to the other parent, and only under exceptional circumstances should the right or privilege be denied.' [Cit.]" Shook v. Shook, 242 Ga. 55, 56 (2) (247 SE2d 855) (1978). "The desires of children under 14 years of age in not wanting to visit their [noncustodial parent] is not sufficient to deny [the noncustodial parent] his [or her] rights of visitation. [Cit.]" (Emphasis supplied.) Shook v. Shook, supra, p. 56 (2). The issues here are, whether the desire of a child over 14 years of age in not wanting to visit his or her noncustodial parent is sufficient to deny the noncustodial parent his or her rights of visitation, and under what conditions the custodial parent is authorized to withhold visitation privileges with such child from the noncustodial parent. "In any case in which a judgment awarding the custody of a minor has been entered, on the motion of any party or on the motion of the court, that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor, provided that the review and modification or alteration shall not be had more than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceeding based upon a showing of change in any material conditions or circumstances of a party or the minor." (Emphases supplied.) OCGA §§ 19-9-1 (b), 19-9-3 (b). "Modification of child [-] visitation rights is a matter of discretion with the trial court . . . [Cit.]" Parker v. Parker, 242 Ga. 781 (251 SE2d 523) (1979). "Visitation rights may now be modified on motion of either party or on motion of the trial judge in a contempt action. Sampson v. Sampson, 240 Ga. 118, 119 (239 SE2d 519) (1977)]." Blalock v. Blalock, 247 Ga. 548, 550 (1) (277 SE2d 655) (1981). The fact that a child of 14 can select his or her custodial parent, does not require the conclusion that such a child can be allowed to elect to not visit with the noncustodial parent. Just as the selection of the custodial parent is subject to the judge's determination that the parent so selected is "a fit and proper person to have the custody of the child," so must the modification or alteration of visitation rights established by the divorce decree or a subsequent modification or alteration thereof be done by order of the court. The fact that subsection (b) of OCGA §§ 19-9-1 and 19-9-3 does not refer to the age of the minor as to whom visitation rights are to be reviewed and modified or altered, is an indication of the legislative intent to require a court order for such modification or alteration for all minors. We hold that 14-year-olds do have the right to elect not to visit with their noncustodial parents; however, to allow them to make such election without 651 a court order would violate the previously cited statutory provisions and would permit, if not encourage, custodial parents to vent their spite for their former mates by pressuring, directly or indirectly, the children to make such an election. Thus, although it is possible that it might be found that the father was in contempt for withholding the mother's visitation rights without obtaining an order modifying or altering such rights, we are vacating the order of contempt so that there may be an opportunity for a review and modification of visitation rights on motion of either party or of the trial judge, in accordance with the statutes and this opinion. Judgment vacated. All the Justices concur, except Smith, J., not participating.	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit February 17, 2016 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 15-6175 BRADLEY RAYMOND SCHAD, (D.C. No. 15-CR-163) (W.D. Okla.) Defendant - Appellee. ORDER AND JUDGMENT * Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges. ** Defendant Bradley Schad, an acknowledged drug addict, pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a). The district court sentenced him to 151 months in prison to be followed by a 3-year term of supervised release. Defendant began serving his term of supervised release in July 2013. In August 2015, the United States Probation Office (USPO) petitioned the district court to revoke Defendant’s supervised release. The petition alleged Defendant had tested positive * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. for amphetamines on three separate occasions and marijuana on one occasion. The petition further alleged Defendant refused to participate in his substance abuse counseling program by missing two scheduled drug screens and submitting diluted urine samples on four other occasions. At the revocation hearing, Defendant stipulated to the alleged violations. He agreed that his advisory revocation guideline range was 8 to 14 months’ imprisonment and the available supervised release term was three years minus any term of imprisonment imposed upon revocation. Defendant asked the court to continue his supervision rather than send him back to prison. But the court was unmoved: “I’m very sympathetic with you being a drug addict, Mr. Schad, but . . . the Federal Government has sent you to in-patient treatment, to out-patient treatment, we’ve done about all we can do. Is that not true? . . . I think the government has done about all they can with you, Mr. Schad.” The court sentenced Defendant to 8 months in prison to be followed by an 18-month term of supervised release. Defendant now appeals the district court’s reimposition of a term of supervised release. Our jurisdiction arises under 28 U.S.C. § 1291. We summarily affirm. On appeal, Defendant argues the district court’s decision to reimpose a term of supervised release upon the revocation of his original term was substantively unreasonable because “[t]he imposition of additional supervised release is blatantly inconsistent with the court’s pronouncement that further treatment would be pointless.” In other words, Defendant essentially asserts that where a district court 2 has expressed frustration with a drug addict’s court-ordered rehabilitative efforts while on supervised release, the law compels the court to wash its hands of that addict once his imprisonment for a supervised release violation concludes. Defendant’s rationale is that any term of supervised release under such circumstances is too long and thus unreasonable. 1 Defendant’s argument is meritless. To be sure, one aim of supervised release is rehabilitation—“to provide the defendant with needed . . .treatment.” 18 U.S.C. §§ 3553(a)(1)(D), 3583(c). But rehabilitation is only one of multiple factors a district court must consider in determining whether to impose a term of supervised release. Other aims of supervised release include “afford[ing] adequate deterrence to criminal conduct” and “protect[ing] the public from further crimes of the defendant.” Id. §§ 3553(a)(1)(B) & (C), 3583(c). Both of these latter aims well justify the court’s discretionary decision to impose a second term of supervised release on Defendant in this case. Morever, while Defendant serves his most recent terms of imprisonment and supervised release, maybe the light will come on and he will decide to undertake the footwork necessary for change. The Supreme Court’s words in Johnson v. United States, 529 U.S. 694, 709–10 (2000), are apropos: 1 Defendant did not assert in the district court, nor does he assert here, that his sentence is procedurally unreasonable. That is to say Defendant challenges only the length of his sentence, not the manner in which the court calculated his sentence. See United States v. Lopez-Flores, 444 F.3d 1218, 1220 (10th Cir. 2006) (explaining that a federal sentence consists of both a procedural and substantive component). 3 A violation of the terms of supervised release tends to confirm the judgment that help was necessary, and if any prisoner might profit from the decompression stage of supervised release, no prisoner needs it more than one who has already tried liberty and failed. He is the problem case among problem cases, and a Congress asserting that “every releasee who does need supervision will receive it,” [S. Rep. No. 98-225, p.124 (1983)] seems very unlikely to have meant to compel courts to wash their hands of the worst cases at the end of reimprisonment. The sentence of the district court is AFFIRMED. Entered for the Court, Bobby R. Baldock United States Circuit Judge 4	{ "pile_set_name": "FreeLaw" }
31 F.3d 1174 Stone (Joy E.)v.Monumental Life Insurance Company NO. 94-7055 United States Court of Appeals,Third Circuit. July 28, 1994 Appeal From: M.D.Pa., Smyser, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
878 F.2d 829 UNITED STATES of America, Plaintiff-Appellant,v.David J. BARTE, Defendant-Appellee. No. 88-2500 Summary Calendar. United States Court of Appeals,Fifth Circuit. July 19, 1989. Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellant. Michael Sokolow, Asst. Fed. Pub. Defender, Roland E. Dahlin, III, Fed. Pub. Defender, Houston, Tex., for defendant-appellee. Appeal from the United States District Court for the Southern District of Texas; John V. Singleton, Judge. ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC (Opinion March 28, 1989, 5th Cir.1989, 868 F.2d 773) Before GEE, HIGGINBOTHAM and DUHE, Circuit Judges. PER CURIAM: 1 The Petition for Rehearing is denied and no member of this panel nor judge in regular service on the Court having requested that the Court be polled on rehearing en banc, (Fed.R.App.Pro. and Local Rule 35) the suggestion for Rehearing En Banc is DENIED. 2 In his application for rehearing, appellee correctly points out that the panel discussed only the district court's holding as to the suppression of the physical evidence, but reversed the district court. This had the effect of reversing the district court's holding that the act of production of that evidence was suppressed. It was our intention to affirm the holding of the district court suppressing the act of production and to reverse the district court's holding suppressing the physical evidence. 3 Accordingly, the word "REVERSED" is deleted from the end of the panel opinion and the following is substituted therefor: 4 "The government acknowledged in oral argument that the district court was correct in suppressing the act of production of the physical evidence. That portion of its ruling is, therefore, AFFIRMED. 5 Accordingly, the decision of the district court is AFFIRMED IN PART and REVERSED IN PART and the matter is REMANDED to the district court."	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-4333 RUFUS HOUSER, a/k/a Pookie, Defendant-Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Frederick P. Stamp, Jr., Chief District Judge. (CR-95-12) Submitted: March 17, 1998 Decided: May 8, 1998 Before MURNAGHAN, WILKINS, and HAMILTON, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Paul G. Taylor, HENRY, TAYLOR & JANELLE, Martinsburg, West Virginia, for Appellant. William D. Wilmoth, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Rufus Houser appeals the judgment entered pursuant to his plea of guilty to possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (1994).* Houser contends that he did not have close assistance of competent counsel because his counsel failed to investigate prior to sentencing whether there was sentence entrap- ment or sentence manipulation; therefore, he claims the district court abused its discretion in denying his Fed. R. Crim. P. 32(e) motion. Finding no abuse of discretion, we affirm. To the extent that Houser advances ineffective assistance of coun- sel as the basis for challenging the district court's denial of his motion to withdraw his guilty plea, we determine whether the district court abused its discretion in concluding that there was not a "fair and just" reason for allowing him to withdraw his guilty plea. See United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992); United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989). A"fair and just" reason is one that challenges either the fairness of the Fed. R. Crim. P. 11 colloquy or the fulfillment of a promise arising from the Rule 11 hear- ing. See Lambey, 974 F.2d at 1394. For ineffective assistance of coun- sel to constitute a fair and just reason to withdraw a guilty plea, it must be of constitutional magnitude. See id. at 1394. The defendant must show that his counsel's performance fell "`below an objective standard of reasonableness,'" and that but for counsel's alleged sub- standard performance, "`there is a reasonable probability that [the _________________________________________________________________ *Houser originally agreed to plead guilty to aiding and abetting with intent to distribute crack on March 23, 1995, in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (1994). At his Rule 11 hearing, Houser would not plead guilty to this count. After conferring with his counsel, Houser agreed to plead guilty to possession with the intent to distribute crack in the Winter of 1994 in violation of 21 U.S.C. § 841(a)(1) (1994). 2 Defendant] would not have pleaded guilty.'" United States v. Craig, 985 F.2d 175, 179 (4th Cir. 1993) (quoting DeFreitas, 865 F.2d at 82). Houser contends that his counsel did not investigate potential claims of sentencing entrapment or manipulation. However, he does not allege that there was evidence to support either of these potential claims. Nor does he aver that but for counsel's alleged substandard performance in not investigating sentencing issues, he would not have pleaded guilty. Furthermore, Houser raises no objection to the Fed. R. Crim. P. 11 hearing or to the accuracy and adequacy of the informa- tion presented to him there. He fails to claim that any promises were not fulfilled. Our review of the record reveals that the district court conducted a complete and thorough Rule 11 hearing prior to accept- ing Houser's guilty plea. We therefore conclude that the district court did not abuse its discretion in denying Houser's motion to withdraw his plea of guilty on the ground of not having close assistance of com- petent counsel. See Craig, 985 F.2d at 179-80; Lambey, 974 F.2d at 1393. To the extent that Houser raises a claim of ineffective assistance of counsel separate and distinct from his Rule 32(e) claim, he must do so under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) in the district court and not on direct appeal, unless it conclusively appears from the record that defense counsel did not provide effective representation. See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because the record here fails to establish conclusively that Houser's attorney rendered ineffective assistance, Houser must bring this claim in a § 2255 motion. Accordingly, we affirm Houser's conviction and sentence. We dis- pense 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 3	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 12, 2014 Decided June 13, 2014 No. 13-7114 BOARD OF COUNTY COMMISSIONERS OF KAY COUNTY, OKLAHOMA, APPELLANT v. FEDERAL HOUSING FINANCE AGENCY, AS CONSERVATOR FOR FEDERAL NATIONAL MORTGAGE ASSOCIATION AND FEDERAL HOME LOAN MORTGAGE CORPORATION, ET AL., APPELLEES UNITED STATES OF AMERICA, INTERVENOR Appeal from the United States District Court for the District of Columbia (No. 1:12-cv-01283) Warren T. Burns argued the cause for appellant. With him on the briefs was Terrell W. Oxford. Jonathan W. Cuneo and Larry D. Lahman entered appearances. 2 Michael A.F. Johnson argued the cause for appellees. With him on the brief were Howard N. Cayne, Dirk C. Phillips, Michael J. Ciatti, Merritt E. McAlister, Michael D. Leffel, and Jill L. Nicholson. Tamara W. Ashford, Principal Deputy Assistant Attorney General, U.S. Department of Justice, Gilbert S. Rothenberg, Jonathan S. Cohen, and Patrick J. Urda, Attorneys, were on the brief for intervenor United States of America in support of appellees. Before: HENDERSON and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge SENTELLE. SENTELLE, Senior Circuit Judge: The Board of County Commissioners of Kay County appeals the district court’s dismissal of its complaint seeking a declaratory judgment that the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), along with the Federal Housing Finance Agency (FHFA) as their conservator, violated state law by failing to pay Oklahoma’s documentary stamp tax (the “Transfer Tax”). The district court held that all of the entities were exempt from the tax pursuant to their statutory charters, 12 U.S.C. §§ 1452(e), 1723a(c)(2), 4617(j)(1)-(2). We affirm the district court. We hold that the statutes exempt the entities from all state and local taxation, including Oklahoma’s Transfer Tax, and that the Transfer Tax does not constitute a tax on real property such that it falls into the real property exceptions from the exemptions. Finally, we hold that Kay County has forfeited its argument that the exemptions represent an invalid exercise of the Commerce power. 3 BACKGROUND Fannie Mae and Freddie Mac are federally-chartered, privately-owned entities currently under the conservatorship of the FHFA. Pursuant to 12 U.S.C. §§ 1452(e), 1723a(c)(2), and 4617(j)(1)-(2), each of these entities is “exempt from all taxation . . . imposed by any State [or] county . . . except that any real property of the [corporation or Agency is] subject to [such taxation] to the same extent . . . as other real property . . . .” Oklahoma imposes a documentary stamp tax on sales of real property. 68 Okla. Stat. Ann. § 3201. The tax is known as a “Transfer Tax,” and is measured by the value of the property conveyed. Id. It attaches at the time a deed is executed and delivered to a buyer, and must be paid by the seller before the deed will be accepted for recording. Id. §§ 3203-04. Kay County filed against Fannie Mae, Freddie Mac, and the FHFA (the “Entities”), seeking a declaratory judgment that they were not exempt from the Transfer Tax, along with damages in the amount of Transfer Taxes purportedly due and owing by the Entities. The complaint alleged that the Entities “wrongfully refused to pay” the tax when conveying property in the state, thereby depriving Kay County of tax revenue to which it is entitled. The Entities moved to dismiss, and the district court granted the motion. In so doing, the court joined an array of other federal courts interpreting “all taxation” to mean what it says and rejected Kay County’s assertion that the phrase is actually a term of art referring only to direct taxation. Bd. of Cnty. Comm’rs of Kay County v. FHFA, 956 F. Supp. 2d 184, 187-90 (D.D.C. 2013). Highlighting the distinction between tax exemptions granted to property and those granted to entities, the court applied Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95 (1941), which stands for the principle that unqualified exemptions 4 extended to entities reach all taxes ultimately borne by the entity—including excise taxes like the Transfer Tax. Kay County, 956 F. Supp. 2d at 188-89. The court further concluded that the Transfer Tax did not fall into the real property exception, noting that “[j]ust because a transfer tax is measured by the value of real property does not mean that the tax is a ‘property tax.’” Id. at 189. In a footnote, the district court also referenced Kay County’s contention that the Entities are not federal instrumentalities. Id. at 189 n.5. However, it dismissed as irrelevant the County’s skepticism about “whether [the Entities] should be considered federal instrumentalities for tax purposes” because the Entities’ tax exemption depends not upon their instrumentality status, but instead upon the statutory language providing them immunity. Id. DISCUSSION On appeal, the County reiterates the statutory arguments brought below—it insists that the statutory exemptions do not include indirect taxes like the Transfer Tax, and, alternatively, that the Transfer Tax falls into the real property exceptions. The County also raises a constitutional challenge asserting that the exemptions represent invalid exercises of the Commerce power absent a sufficiently explicit preemption purpose. We review a grant of a motion to dismiss de novo. Emory v. United Air Lines, Inc., 720 F.3d 915, 921 (D.C. Cir. 2013). Applying this standard, we agree with the district court that the exemptions encompass the Transfer Tax and that the Transfer Tax does not fall into the real property exceptions. Because the County did not present its Commerce power argument below, and concedes before us 5 that the district court’s result may stand on the basis of statutory immunity, we need not address either of its constitutional arguments on appeal. A. Tax Exemption Appellant’s primary argument is that the statutory language exempting the Entities from “all taxation” does not include the Transfer Tax. According to the County, the phrase does not actually mean all taxation; instead, it is a term of art encompassing only direct taxation. The exemptions therefore do not include indirect taxes—like the Transfer Tax—that are levied only upon the transfer of the property. It is “well settled that the starting point for interpreting a statute is the language of the statute itself.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987) (internal quotation omitted). When a statute’s language is plain, we “must enforce it according to its terms.” Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). Moreover, where a statute’s terms are undefined, our interpretation is guided by the terms’ “regular usage.” Lopez v. Gonzales, 549 U.S. 47, 53 (2006). We thus begin our analysis by examining the plain language of 12 U.S.C. §§ 1452(e), 1723a(c)(2), and 4617(j)(1)-(2). Each statute clearly states that its corresponding entity “shall be exempt from all taxation [imposed] . . . by any State.” Because the statute itself defines neither “all” nor “taxation,” we look to the ordinary meaning of the words, which is unambiguous: all taxation clearly encompasses all taxation, including the Transfer Tax. See Cnty. of Oakland v. FHFA, 716 F.3d 935, 940 (6th Cir. 2013). To accept the County’s argument to the contrary would 6 require the application of inapposite precedent toward an absurd result. The County argues that United States v. Wells Fargo Bank, 485 U.S. 351 (1988), a case wherein the Supreme Court interpreted identical exemption language, established that the phrase “all taxation” is a term of art signifying only direct taxation. There, the Court interpreted a provision of the Housing Act of 1937 exempting certain bond-type obligations—known as Project Notes—from “all taxation now or hereafter imposed by the United States.” Id. at 352-53, 355. Asserting that “[w]ell before the Housing Act was passed, an exemption of property from all taxation had an understood meaning,” namely that the property was “exempt from direct taxation” but not from taxation levied merely upon its “use or transfer,” the Court concluded that the exemption encompassed income taxes—which are a form of direct taxation—but not estate taxes—which are a form of indirect, excise taxation. Id. at 355-56. But that case is not on point. The statute at issue in Wells Fargo exempted specific property from taxation. The statute at issue in this case exempts specific entities. This is a distinction with a difference: an unqualified tax exemption for specific property necessarily reaches only those taxes that act directly upon the property itself, while a similarly unqualified exemption for a specific entity may reach any and all taxes that ultimately will be borne by the entity. Because the Entities, as sellers of property in Oklahoma, would ultimately bear the burden of the Transfer Tax, Wells Fargo is not applicable precedent. Instead, as several of our sister circuits have already recognized, the relevant precedent is Federal Land Bank of St. Paul v. Bismarck Lumber Co., a case that preceded Wells 7 Fargo and was not overruled by it. In Bismarck, the Supreme Court interpreted a provision of the Federal Farm Loan Act unqualifiedly exempting federal land banks from state taxation. 314 U.S. at 98-99. It found that the exemption encompassed a state sales tax that the federal bank had refused to pay when purchasing building materials from a lumber company. Id. at 99. Because that sales tax—like the Transfer Tax at issue here—was ultimately borne by an entity for which Congress had crafted an exemption, the Court concluded that the entity was immune from it. Bismarck controls this case. The Transfer Tax is an excise tax borne by the Entities and the statutory charters provide entity—not property—exemptions. It is clear that Wells Fargo and Bismarck represent separate strains of authority dealing with different types of exemptions. Wells Fargo is not on point and neither overruled nor even cited Bismarck. Without any indication that the Court meant to eliminate the distinction between entity and property exemptions in Wells Fargo, we cannot accept the County’s argument. As we noted above, other courts have interpreted and applied the precedent of Bismarck as we do here. See Delaware Cnty. v. FHFA, 747 F.3d 215 (3d Cir. 2014); Hennepin Cnty. v. Fed. Nat’l Mortg. Ass’n, 742 F.3d 818 (8th Cir. 2014); DeKalb Cnty. v. FHFA, 741 F.3d 795 (7th Cir. 2013); Cnty. of Oakland v. FHFA, 716 F.3d 935 (6th Cir. 2013). B. Real Property Exception Appellant alternatively argues that even if the Entities’ exemptions encompass the Transfer Tax, Fannie, Freddie, and the FHFA are still subject to the Transfer Tax. The County 8 contends that the exception for real property taxes from the exemption extends to taxation of the transfer of real property. We disagree. The statutory charters state that all of the Entities’ “real property . . . shall be subject” to state and local taxation “to the same extent as other real property is taxed.” 12 U.S.C. § 1723a(c)(2); see also id. §§ 1452(e); 4617(j)(2) (materially identical provisions). The County argues that the term “real property” includes the transfer of that property, and thus that the Transfer Tax falls within the exception. It bases this argument on the classic legal characterization of property ownership which conceives of it as the possession of a “bundle of sticks.” Because the right to transfer is an integral “stick” in the “bundle,” the tax is “intimately connected with the real property itself” and is thus within the exception. Not so. The Transfer Tax, which is measured by the value of the property but triggered only at its transfer, is clearly an excise tax. Wells Fargo, upon which the County relies, establishes the difference: excise taxes may be measured by the property’s value, but they are levied upon its use or transfer and not upon its existence. 485 U.S. at 355. Here, Oklahoma’s statutory taxation scheme confirms that the Transfer Tax is an excise tax: the state imposes an entirely separate ad valorem tax on real property. 68 Okla. Stat. Ann. § 2804. The Oklahoma Transfer Tax is triggered by conveyance and paid by the seller, who, at the point of payment, no longer has any right in the property conveyed. 68 Okla. Stat. Ann. §§ 3203-04. Appellant’s attempt to convert the Transfer Tax into a property tax fails. See S. Ry. Co. v. Watts, 260 U.S. 519, 530 (1923). Once again, we note the uniform agreement of our sister circuits. See Delaware Cnty., 747 F.3d at 223-24; Hennepin Cnty., 742 F.3d at 822; DeKalb Cnty., 741 F.3d at 801; Montgomery Cnty. v. Fed. 9 Nat’l Mortg. Ass’n, 740 F.3d 914, 919-21 (4th Cir. 2014); Cnty. of Oakland, 716 F.3d at 939 n.6. C. Constitutional Arguments The County concludes by arguing that the statutory exemptions are invalid on constitutional grounds. The asserted constitutional justification for the statute is congressional authority under the Commerce Clause. The County asserts that creation of this exemption is an unconstitutional overreach. Citing United States v. Morrison, 529 U.S. 598 (2000), the County argues that “Congress’ regulatory authority is not without effective bounds.” Id. at 607-08. It asserts that the transfer of property being truly local, there is no effect on interstate commerce and to uphold the statutory scheme would expand the scope of the Commerce Clause at the expense of curtailing the indisputably fundamental right of the states to tax. The County goes on to note that there is a “strong background presumption against [federal] interference with state taxation.” Appellant’s Br. at 19 (quoting Nat’l Private Truck Council v. Okla. Tax Comm’n, 515 U.S. 582, 589 (1995)). Therefore, they contend, where Congress is using its power under the Commerce Clause to limit state taxation, it must have expressed a “clear and manifest purpose” to preempt state taxation. See, e.g., Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332 (1994). We will not linger long over either step of appellant’s argument. Appellant did not raise this constitutional challenge in the district court. “Generally, an argument not made in the lower tribunal is deemed forfeited and will not be entertained absent exceptional circumstances.” Flynn v. C.I.R., 269 F.3d 1064, 1068-69 (D.C. Cir. 2001) (quotations 10 and citations omitted). Appellant has made no attempt to demonstrate exceptional circumstances. We further note that the grounds for recognizing the forfeiture of the arguments are especially strong where the alleged error is constitutional. We operate under a norm of constitutional avoidance. Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000). Under that norm, we adhere to the principle that “[f]ederal courts should not decide constitutional questions unless it is necessary to do so.” Id. (citations omitted). It is neither necessary nor even advisable here. We therefore reject appellant’s constitutional challenge without further discussion. 1 CONCLUSION For the reasons set forth above, the judgment of the district court is affirmed. 1 We note that appellant also raises and argues the point that because Fannie Mae and Freddie Mac are no longer purely federal entities, they are not entitled to “constitutional immunity.” Appellants raised this issue in a footnote in the district court. The district court rejected it in a footnote to its own opinion. See Kay County, 956 F. Supp. 2d at 189 n.5. We agree with the district court that this argument warrants no more than marginal mention, as it is irrelevant to the issue of statutory immunity.	{ "pile_set_name": "FreeLaw" }
120 Wn.2d 327 (1992) 841 P.2d 42 THE STATE OF WASHINGTON, Petitioner, v. RODNEY HOUF, Respondent. No. 59156-3. The Supreme Court of Washington, En Banc. December 3, 1992. 328 Dennis DeFelice, Prosecuting Attorney, and Kevin P. Donnelly, Deputy, for petitioner. Linda L. Edmiston, for respondent. DURHAM, J. The respondent, Rodney Houf, after presenting an alibi defense at a jury trial, was convicted of unlawful delivery of a controlled substance. The trial judge imposed an exceptional sentence based solely on the judge's personal belief that Houf had lied during his testimony. The Court of Appeals reversed the exceptional sentence, holding that this circumstance did not constitute a sufficient basis for an exceptional sentence under the Sentencing Reform Act of 1981 (SRA), RCW 9.94A.010 et seq. We affirm the decision of the Court of Appeals and remand this case to the trial court for resentencing within the standard range. Because of the nature of this appeal, the evidence presented to the trial court must be discussed in some detail. Rodney Houf was arrested on June 30, 1990 in Franklin County and accused of one count of unlawful delivery of a controlled substance (cocaine). He was arrested during a "street sweep", in which problem areas are targeted by the police. The State's case consisted of testimony by six witnesses, plus the physical evidence. The State's first witness, Detective Dennis Taylor of the Richland Police Department, testified that on the night of June 30, he was working surveillance with Detective Rodgers, while Detective Higgins and a confidential informant, Ms. Rondalyn Vik, worked undercover. At about 8:27 p.m., Detective Taylor observed Detective Higgins and Ms. Vik, who were in an unmarked police vehicle, make contact with a "black male with a white tank top and flower-designed 329 shorts." Report of Proceedings (RP), at 14. After a brief conversation, the suspect got into the car and they drove off. Detective Taylor testified that he and his partner followed the car and observed the suspect get out of the car a number of blocks away. At that time, he recognized the suspect as Houf.[1] Houf returned to the car a few minutes later, and they drove off. Houf was dropped off by the undercover officer in the vicinity of Kurtzman Park. After a short foot pursuit, Houf was arrested by the surveillance officers. Detective Rodgers' testimony corroborated that of Detective Taylor. Rodgers also made a positive identification of the defendant as the person he saw leaving and returning to the undercover vehicle. Ms. Rondalyn Vik, a confidential informant who had known the defendant for about a year, corroborated the two officers' testimony. The undercover police officer, Detective Higgins, testified to essentially the same set of events. He also testified that the person who delivered cocaine to him responded to the name "Rodney". The defense's case consisted of three witnesses plus the defendant's testimony. The first witness, Ms. Carolina Turner, testified that she was at Kurtzman Park from 8 until 9 p.m. on the evening in question, and that the defendant was also there during that time. She could not remember when Houf left, but was certain that he was there until 9 p.m. The next witness, Mr. George Lee Havens, testified that Houf was still at the park when he left between 8:15 and 8:30 p.m. The following witness, Ms. Tammy Avery, testified that she was with Houf at the park on the night in question, that she gave Houf $5 at about 8 p.m. to go to the store to get beer, and that he returned with the beer about 5 or 10 minutes later. She testified that Houf then remained with her while she played cards, but that he left at about 8:45 p.m. to make a phone call. 330 Houf proceeded to take the stand. He testified that he had been at Kurtzman Park for the entire evening up until the time he had been arrested. He stated that he was on his way to make a phone call when he was arrested. Houf flatly denied ever delivering cocaine to anyone. Houf insisted that on the night of his arrest: "I was wearing my blue Bugle Boy's [sic] and an orange shirt and I had a black hat on." RP, at 101-02. He also testified that he had received a ride with Detective Taylor 1 week before this arrest, at which time Taylor had given him $20 to buy beer, not cocaine. Houf testified that the State's witnesses were lying. The jury returned a verdict of "guilty". At the sentencing hearing, the prosecutor explained that the standard range for the case was 21 to 27 months, and recommended a sentence at the top of the range. Houf made a brief statement on his own behalf. He did not, however, comment as to his guilt or innocence. The trial judge proceeded to pronounce sentence. "What you [Houf] did was, in my view, pretty serious, and I'm not talking about the crime itself.... As cocaine cases go, it's kind of a minor case, but what you did was to try to pervert the whole system by lying." Sentencing Report of Proceedings (SRP), at 6. He went on to discuss the witnesses presented by the defense: Now, your witnesses one, it's bad enough to lie, commit perjury, even though it's in your own self-defense.... [b]ut it's even more serious to get everybody else to lie for you, too, all your friends. Now I am not prepared to say that all your friends lied. In fact, they weren't very good alibi witnesses because some of them certainly did not really support your alibi, the timing part of it. SRP, at 7. The judge then sentenced Houf to 24 months for the delivery charge, "plus 12 months for lying". SRP, at 11. [1] Houf appealed the exceptional sentence only. The Court of Appeals looked to RCW 9.94A.210(4) and found that the trial court's reason for imposing the exceptional sentence was 331 not justified.[2]State v. Houf, 64 Wn. App. 580, 583, 825 P.2d 736 (1992). The Court of Appeals reversed the exceptional sentence and remanded for resentencing within the standard range. Houf, at 584. This court granted the State's motion for discretionary review. We review the issue under a "matter of law" standard. State v. Grewe, 117 Wn.2d 211, 215, 813 P.2d 1238 (1991). We now affirm the Court of Appeals. [2] The SRA provides generally for standardized sentencing within a set range. See RCW 9.94A.120(1). However, exceptional circumstances may provide a basis for departing from that standard range. RCW 9.94A.120(2) provides: The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. The SRA goes on to provide guidance for such departure by listing some of the aggravating and mitigating factors to be considered in meting out an exceptional sentence. RCW 9.94A.390. The "Aggravating Circumstances" subsection of RCW 9.94A.390 was amended in 1986 by changing the word "offense" to "current offense". Laws of 1986, ch. 257, § 27, p. 936. "The ... amendment added the adjective `current' to subsection (2) to make it clear that aggravating factors only apply to the circumstances surrounding the charged offense." (Italics ours.) Washington Sentencing Guidelines Comm'n, Implementation Manual, § 9.94A.390 comment, at II-77 (1991) (hereinafter Implementation Manual). Testimony at trial cannot be fairly labeled a "circumstance surrounding the charged offense". 332 The SRA also contains what has become known as the "real facts" doctrine. This section provides that: In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.... Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in [the statute]. RCW 9.94A.370(2). The commentary found in the Implementation Manual explains that this policy was adopted in order to limit sentencing decisions to the facts which were "acknowledged, proven, or pleaded to". Implementation Manual, at II-73 through II-74. This court has similarly interpreted the doctrine as excluding consideration during sentencing of uncharged crimes or charged crimes which were later dismissed. State v. McAlpin, 108 Wn.2d 458, 466, 740 P.2d 824 (1987). The State argues that courts have fashioned an exception to the "real facts" doctrine for actions by a defendant which may subvert the criminal justice system.[3] Petitioner's primary authority for this contention is State v. Cook, 52 Wn. App. 416, 760 P.2d 964 (1988). The defendant in Cook, who ultimately entered a guilty plea, lied about his name and identity from the time of his arrest, throughout plea negotiations, and up until sentencing, whereupon the trial judge imposed an exceptional sentence, based in part on the defendant's mendacity. The Court of Appeals in Cook recognized that the defendant could be charged with additional crimes on the basis of his lies. Cook, at 420. Nevertheless, the Cook court held that "an exception for acts ... that are designed to subvert or defraud the criminal justice process generally and the proportionality goals of the SRA, specifically, is consistent with the intent of the act." Cook, at 421. 333 [3] We find that this exception is not consistent with either the intent or the actual language of the SRA. See also State v. Martinez, 66 Wn. App. 53, 831 P.2d 165 (1992) (refusing to adopt Cook exception); State v. Henshaw, 62 Wn. App. 135, 813 P.2d 146 (1991) (holding Cook exception only applied to uncharged misdemeanors). The SRA structures the sentencing decision to consider only the actual crime of which the defendant has been convicted, his or her criminal history, and the circumstances surrounding the crime. See David Boerner, Sentencing in Washington 2-30 through 2-33 (1985); State v. Barnes, 117 Wn.2d 701, 710, 818 P.2d 1088 (1991). Allowing an exceptional sentence based on a belief that the defendant lied at trial would allow the defendant to be punished for a wholly unrelated crime with which he has never been charged, much less convicted.[4]See McAlpin, at 466-67; see also Grayson, 438 U.S. at 55-58 (Stewart, J., dissenting) (noting that without a determination that defendant's testimony was actually false, additional punishment is not merited). We agree with the Martinez court's statement: "Although it is not disputed [that the defendant] lied under oath, that is not the offense for which he was being sentenced. Lying under oath is a separate offense, which the State could charge if it wished to do so." Martinez, at 56. Alternatives to an exceptional sentence for lying under oath are available to the judge and prosecutor by pursuing a perjury conviction. The Washington Criminal Code provides for first and second degree perjury, which are felonies, and false swearing, which is a gross misdemeanor. RCW 9A.72. Additionally, RCW 9.72.090 provides a mechanism for a judge to immediately jail a witness, or demand a witness' appearance, in order to answer to a charge of perjury whenever it appears probable to that judge that perjury has been committed. *334 [4] We hold, based on the explicit language of RCW 9.94A.390, as well as consideration of the "real facts" doctrine found in RCW 9.94A.370(2), that a judge's determination that a defendant lied under oath is not a sufficient basis for an exceptional sentence under the Sentencing Reform Act of 1981. The "real facts" doctrine does not allow facts which establish the elements of crimes completely unconnected to those charged to be considered in meting out an exceptional sentence. Moreover, the 1986 amendments to the SRA indicate that any aggravating factors considered in imposing an exceptional sentence should be related to the crime with which the defendant is charged. There is no binding precedent in the case law which would mandate departure from the clear language of the statute. While judges and prosecutors may be justifiably annoyed by having to endure a defendant's testimony which flies in the face of the clear weight of the evidence, the proper remedy is an additional charge of perjury. We affirm the Court of Appeals, and remand this case to the trial court for resentencing within the standard range. DORE, C.J., and UTTER, BRACHTENBACH, DOLLIVER, ANDERSEN, SMITH, GUY, and JOHNSON, JJ., concur. NOTES [1] He was familiar with Houf because Houf had flagged him down a week before to sell him cocaine, but had taken the money without ever delivering the drugs. Houf was picked up an hour after that incident and charged with third degree theft. [2] RCW 9.94A.210(4) provides the proper standard for reviewing the imposition of an exceptional sentence: "To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient." [3] The trial judge relied on In re Luft, 21 Wn. App. 841, 589 P.2d 314 (1979) and United States v. Grayson, 438 U.S. 41, 57 L.Ed.2d 582, 98 S.Ct. 2610 (1978) as providing authority for the exceptional sentence. However, neither of these cases involved the SRA, and neither case is helpful in deciding the specific issue at hand. [4] Additionally, under article 1, section 22 of the Washington State Constitution, "[i]n criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him". Pursuant to that language, we have recognized that "an accused person must be informed of the criminal charge he or she is to meet at trial, and cannot be tried for an offense not charged." State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988).	{ "pile_set_name": "FreeLaw" }
939 F.Supp. 1402 (1996) Gary D. WYATT, Sr., Plaintiff, v. UNITED STATES of America, Defendant. No. 4:94CV1567-DJS. United States District Court, E.D. Missouri, Eastern Division. September 23, 1996. 1403 1404 Neil J. Maune, Walker and Maune, Granite City, IL, Bill T. Walker, Granite City, IL, for plaintiff. Henry J. Fredericks, Asst. U.S. Attorney, St. Louis, MO, for defendant. MEMORANDUM OPINION AND ORDER STOHR, District Judge. Plaintiff brings the instant medical malpractice action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiff is an unmarried 45-year-old male, who has been paraplegic since 1969. His claims in the instant case arise from the treatment he received for decubitus ulcers (pressure sores) on his hips and buttocks at two hospitals operated by the Department of Veterans Affairs in St. Louis, Missouri. Plaintiff alleges that the treatment he received was negligent in a number of respects, resulting in an unnecessary deterioration of his condition and ultimately necessitating the amputation of both of his legs at the hip joint. The case was tried to the Court sitting without a jury. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of relevant fact and conclusions of law, in accordance with Fed.R.Civ.P. 52(a). 1405 Findings of Fact 1. While in the Army in 1969, plaintiff was involved in an auto accident which left him paralyzed below the chest. 2. Prolonged pressure on the skin, especially in connection with a bony prominence of the body, causes the skin to break down and an open sore to develop. These decubitus ulcers or pressure sores are common in spinal cord injured persons such as plaintiff, who are partially immobilized and lack sensation. 3. Because of his paraplegia, plaintiff had since 1969 occasionally experienced pressure sores, and regularly endeavored to prevent them. 4. Beginning in the early 1980's, plaintiff used a Roho cushion while sitting to help prevent pressure sores on his buttocks. A Roho cushion consists of air-filled nodules, up to several inches in length, which help alleviate pressure on the buttocks. Plaintiff regularly slept on a sheepskin cover which absorbed perspiration and helped to keep his skin dry. 5. After going on a long car trip without his usual Roho cushion, plaintiff developed a number of pressure sores. He presented himself at and was admitted to the Spinal Cord Injury Unit of the Jefferson Barracks Medical Center ("Jefferson Barracks") on May 9, 1991. 6. Plaintiff was continuously in the care of defendant, at either Jefferson Barracks or John Cochran Hospital ("John Cochran"), from May 9 to July 19, 1991. Both facilities are operated by the Department of Veterans Affairs ("VA"). 7. Upon his admission, plaintiff had five pressure sores of the following approximate sizes and severity: on the right trochanter (hip), Grade II, 12½ cm; on the left trochanter (hip), Grade III, 3 cm; on the right ischium (buttock), Grade I-II, ½ cm; on the left ischium (buttock), Grade I-II, ½ cm; and on the left knee, 3½ cm, with thin eschar (a scab-like crust). 8. The severity of pressure sores is graded on a scale of I through IV, in which Grade I indicates the least severe alteration or impairment of skin integrity and Grade IV the most serious, involving extension of the wound to muscle and bone. 9. Shortly after plaintiff's admission, a Jefferson Barracks staff psychologist conducted a routine admission interview with plaintiff. The psychologist's May 13, 1991 notes indicate that plaintiff stated that his pressure sores developed during an extended car trip without his Roho cushion, and that plaintiff "appreciates how his judgment resulted in [the] pressure sore problem." 10. At or shortly after plaintiff's admission, it was determined that he had a urinary tract infection. 11. At Jefferson Barracks, plaintiff was initially placed on low-air-loss flotation as well as a Roho mattress. These pressure reductive devices are designed to facilitate healing of pressure sores and prevent the formation of new sores. 12. Smoking inhibits healing. Despite repeated warnings, plaintiff continued to smoke cigarettes regularly during his stay at the VA hospitals. 13. Plaintiff was scheduled to be turned in bed every 1 to 2 hours. At times, plaintiff was noncompliant with staff concerning turning in bed and other aspects of his treatment such as protein drinks. 14. Plaintiff's sister, Beverly York, testified that during plaintiff's stay at Jefferson Barracks, she visited him at least six evenings per week. Plaintiff's condition worsened during the month of May: he emanated a foul odor; grew weaker; lost weight; could not eat or drink; experienced shaking, fever and sweating; complained of burning in his stomach and pain in his bones and skin; and sometimes failed to recognize his sister. In late May, because of his worsening condition, Ms. York spoke to plaintiff about transferring to another hospital, but plaintiff indicated that he trusted Mary Nicholson, the nursing supervisor of the Spinal Cord Injury Unit, and wanted to continue in her care. 1406 15. Following his admission to Jefferson Barracks, plaintiff developed a perirectal abscess. On May 21, a CAT-scan was ordered. The report revealed air in soft tissues, indicating infection by a gas-causing organism such as streptococcus. 16. On May 23, a surgical consultation was ordered, which plaintiff did not receive until a "stat" surgical consultation was ordered on June 5, after plaintiff developed a high fever and his blood pressure dropped, indicating a severe infection. Dr. Frank Johnson, Chief of the Surgical Service, testified that the surgeons ordinarily like to see patients within one day of a surgical consultation order. 17. Dr. Raj Mohapatra, a urologist and surgeon on staff at Jefferson Barracks, ordered the surgical consultation for several reasons: first, for purposes of determining whether the perirectal abscess was communicating between the bowel and plaintiff's pressure sores, and if so to divert the bowel via a colostomy, and second, for surgical debridement of plaintiff's pressure sores that could not be done bedside. Debridement, which can be performed by mechanical, chemical or surgical means, is the removal of dead, damaged or infected tissue to expose healthy tissue. 18. On June 5, plaintiff was transferred to John Cochran. 19. Plaintiff initially refused colostomy surgery, but on June 11, with plaintiff's consent, a surgery was performed to repair plaintiff's rectal abscess and to create a colostomy. The surgical procedures done at John Cochran revealed a larger area of infection than was realized by the doctors treating plaintiff at Jefferson Barracks; specifically, there was a large subcutaneous deposit of pus and stool in plaintiff's right posterior thigh, which had derived from the pressure wound on his right buttock. 20. Concerned about plaintiff's condition, Ms. York stayed with plaintiff in his room at John Cochran between June 6 and June 17. On June 12, Ms. York took a photograph of plaintiff's right hip, depicting an open rectangular pressure sore, approximately 1-1½ by 3-3½ inches in size. See Appendix, Plaintiffs Exhibit 18. 21. The possibility of osteomyelitis, infection of bone and bone marrow, was noted by a John Cochran urologist in a June 6 entry in plaintiff's records. Progress notes for June 11 reflect the likelihood of chronic osteomyelitis of exposed bone in plaintiff's pressure sores. A physician's assistant's notes dated June 28, 1991 indicate the existence of "probable bone necrosis/osteo." The same physician's assistant noted on July 1 that plaintiff "probably has an underlying osteo as source of fever." X-ray reports of July 3 show possible osteomyelitis in plaintiff's right hip. On July 5, the same physician's assistant again refers to "osteo/infected wounds" as contributing to plaintiff's continued fever. 22. During the course of plaintiff's stay at Jefferson Barracks and John Cochran, he was sporadically given different oral and intravenous antibiotics, in varying combinations. The antibiotics prescribed for plaintiff were intended solely to combat infection of his urinary tract and the perirectal abscess. No antibiotics were ever ordered specifically to treat infection of his pressure sores or osteomyelitis. 23. A wound culture was performed on plaintiff's perirectal abscess on May 26. The May 30 lab report indicates that plaintiff had four infective organisms in the area of the perirectal abscess, including heavy growths of staphylococcus aureus, a very virulent organism which can cause extensive tissue destruction, and a streptococcus species which can destroy tissue very rapidly if unchecked. 24. The antibiotic sensitivities shown on that report indicate that the staph. aureus was resistant to the antibiotics administered to plaintiff in the following weeks, and that several of the other bacteria present were only minimally sensitive to the antibiotics given. The report shows no sensitivity results for other antibiotics which were administered to plaintiff. 25. Bacteriology reports on cultures from plaintiff's hip wounds were issued on July 4, July 6 and July 7. These reports indicated the presence of a staph. aureus bacterium which was resistant to the antibiotics which 1407 had been and were then being administered to plaintiff, with the possible exception of one antibiotic which was administered only briefly from July 4-5. 26. A July 13 bacteriology report on a culture from plaintiff's left hip wound indicated that the staph. aureus infection continued, and that the staph. aureus bacterium was sensitive to an antibiotic which was begun intravenously on July 17, only two days before plaintiff left the VA hospitals. 27. General surgery and plastic surgery consults both recommended continued antibiotic treatment. Dr. Woolsey, a neurologist who is Chief of the Spinal Cord Injury Unit, admitted that plaintiff's pressure sores were not treated with antibiotics during his time in the Spinal Cord Injury Unit at Jefferson Barracks, even as he acknowledged that a clinical diagnosis of osteomyelitis would have warranted such treatment. 28. The failure to treat plaintiff with appropriate and necessary antibiotics allowed a serious staph. infection to communicate from the perirectal abscess to plaintiff's upper femur. The resulting osteomyelitis and very large wounds on both hips ultimately necessitated the amputation of both of plaintiff's legs at the hip joint. 29. The inattention to plaintiff's antibiotic treatment is consistent with Dr. Woolsey's view, expressed in an article on pressure sores which he co-authored with Dr. John McGarry, Assistant Chief of the Spinal Cord Injury Unit and another of plaintiff's treating physicians at Jefferson Barracks, that "[u]sually, removal of necrotic tissue is all that is needed to control the infectious component of a pressure sore." Robert M. Woolsey, M.D. and John D. McGarry, M.D., The Cause, Prevention, and Treatment of Pressure Sores, Neurologic Clinics, Vol. 9, No. 3, p. 804, August 1991. 30. In the same article, Drs. Woolsey and McGarry again express skepticism concerning the need for systemic antibiotics: Systemic antibiotics are not useful in the treatment of pressure sores unless the patient has osteomyelitis or severe wound infection unresponsive to the usual modalities of local care. Fulminating sepsis with a 50% mortality rate has been reported in patients with pressure sores; however, this must be a rare occurrence because during a 15-year period of treating patients with pressure sores on a daily basis, we have never seen such a situation. Id. at 805. 31. Plastic surgeons at John Cochran recommended the use of a Clinatron bed for plaintiff. A Clinatron bed helps to prevent pressure sores and to facilitate their healing by the use of tiny constantly moving beads and air flow, which eliminate pressure on the patient's skin and keep the skin dry. 32. The recommendation was never followed, although plaintiff was placed on other types of pressure reductive mattresses or mattress overlays. Mattresses of the type used in the Spinal Cord Injury Unit are made up of air-filled sacs, which allow the regulation of the pressure on different parts of the body or, in some cases, automatic "travelling" inflation which rotates the pressure around the body. At times, plaintiff was "bridged" with foam blocks so that his pressure sores were suspended in air. 33. Dr. Woolsey testified that the Spinal Cord Injury Unit does not use Clinatron beds because they are large and bulky and present difficulties for nurses who must lean over them to reach patients. In Dr. Woolsey's opinion, pressure-reductive mattresses or bridging, combined with effective nursing care, provide better treatment than the use of a Clinatron bed. 34. Debridement is a mainstay of treatment for pressure sores. By proper debridement, the removal of dead and infected tissue and the exposure of healthy tissue promotes healing. 35. Prior to June 20, plaintiff's wounds had been debrided by surgeons at John Cochran several times. Notes in plaintiff's records dated June 18, 1991 indicate that at that time plaintiff refused surgical debridement recommended to him by physicians at John Cochran, and instead requested transfer back to Jefferson Barracks, which was accomplished on June 19. 36. Dr. Mohapatra performed his first debridement on plaintiff at Jefferson Barracks 1408 on June 20. At that time, the wound on plaintiff's left hip measured 2" by 1½", and was of Grade III. On June 21, the sore on plaintiff's right hip measured 2" by 4", and was Grade IV with bone exposed. 37. Dr. Mohapatra performed occasional bedside debridements thereafter, and the nursing staff at Jefferson Barracks performed chemical debridement of plaintiff's wounds. 38. Two different entries in plaintiff's records, dated June 18 and 19, directed weekly follow-up visits to the surgical clinic at John Cochran for purposes of wound assessment; this was not done. 39. Although plaintiff underwent some debridement, by mechanical, chemical and surgical means, there was insufficient monitoring of the debridement process by the surgeons at John Cochran to determine when and how much additional debridement was optimal for the management of plaintiff's wounds, including optimal timing of the growth of new connective tissue and the most expert removal of dead tissue. 40. On July 18, Ms. York visited Jefferson Barracks between 4:30 and 5:00 a.m., and found plaintiff lying naked on a gurney with a sheet folded in half across his buttocks. Plaintiff was covered in sweat, "thrashing around" and did not recognize his sister. When Ms. York lifted the sheet and saw plaintiff's exposed bone through the large open pressure sore, she told a nurse that she was taking plaintiff out of Jefferson Barracks. 41. Ms. York testified that Dr. Woolsey then arrived and advised her that plaintiff was scheduled to be transferred to John Cochran for a blood transfusion, without which he would die. 42. At approximately 9:30 a.m., plaintiff was moved to John Cochran. 43. Notes entered in plaintiff's record on July 18 at John Cochran indicate that his blood pressure had dropped to 90/40 that day. 44. On July 19, plaintiff's family removed him from John Cochran and he was admitted to St. John's Mercy Medical Center. 45. Plaintiff's sister took photographs of plaintiff's right hip and buttocks as they appeared approximately one week after his admission to St. John's. The pressure sore on the right hip had grown to a hole approximately 6 by 10 inches, through which the trochanter (knobby top of the femur) and 6 to 8 inches of plaintiff's femur were exposed. Plaintiff had round open pressure sores of several inches in diameter on both buttocks. See Appendix, Plaintiff's Exhibits 19, 20 & 21. 46. The surgeon who ultimately performed the amputations of plaintiff's legs was Dr. Richard Pennell. 47. Upon his initial examination of plaintiff, on approximately July 19, Dr. Pennell found large open wounds over both hips, with the trochanter and 6 to 8 inches of the upper femur exposed. The bone surface had a yellow cast, rather than the ordinary white color, and the bone was dried out. 48. The combination of plaintiff's fever and the amount of exposed bone supported Dr. Pennell's conclusion that osteomyelitis was present in both femurs. Without its normal coverings of periosteum, muscle, subcutaneous tissues and skin, bone, which has a very poor blood supply, is susceptible to infection. 49. Plaintiff also had purulent drainage from his penis, suggesting a bladder infection. Subsequent tests and examinations indicated that an infection was being communicated through a sinus tract between the urethra, bladder and the joint between the pelvis and femurs. 50. In consultation with a plastic surgeon, it was determined that skin grafts could not be used to cover the wounds. Without supporting tissue and its blood vessels, the blood supply to the bone would be insufficient, and infection in the bone might well have spread to the skin graft in any event. 51. Because of its poor blood supply, bone, once infected, is resistant to antibiotics. All the consulting physicians agreed with Dr. Pennell that, at this advanced stage of plaintiff's case, the amount of exposed bone presented a source of recurring infection which 1409 ruled out antibiotic treatment of the osteomyelitis. 52. Dr. Pennell believed that plaintiff had a potentially life-threatening infection of his femurs, and possibly even of his pelvis. 53. In view of the size and severity of the wounds on plaintiff's buttocks and hips, the clinical diagnosis of osteomyelitis in both femurs, and the poor prospects associated with skin grafts and antibiotic treatment of the osteomyelitis, the amputation of plaintiff's legs at the hip joint was the best treatment choice available. 54. Plaintiff's left leg was amputated at the hip joint on August 12; skin and muscle from the leg was used to cover what was left of the wounds on plaintiff's buttocks and hip after the procedure. Plaintiff's right leg was amputated at the hip joint on August 28. 55. The pathology examination performed on plaintiff's right leg following its amputation disclosed areas of necrosis (dead tissue) extending into the inside of the femur, with acute and chronic osteomyelitis, indicating both long-term and recent infection in the bone. 56. The negligence of the Jefferson Barracks staff specifically the failure to treat plaintiff's wound infections with appropriate and effective antibiotics, the delay in plaintiff's initial surgical consult at John Cochran, and the failure to insure regular surgical monitoring and evaluation of plaintiff's need for debridement proximately caused the deterioration of plaintiff's wounds and the osteomyelitis in plaintiff's femurs, which ultimately necessitated the amputation of plaintiff's legs. 57. Plaintiff's failure to use his Roho cushion during an extended car trip negligently and causally contributed to his ultimate injury, by allowing the initial development of the sores on both buttocks and both hips, even to the severity of Grade III, prior to presenting himself for treatment at the VA hospitals. The percentage of plaintiff's contributory fault in this regard is reasonably fixed at 5%. 58. Plaintiff's smoking negligently and causally contributed to his ultimate injury, by contributing to the retardation of the healing of his wounds and to their susceptibility to serious infection. The percentage of plaintiff's contributory fault in this regard is reasonably fixed at 5%. 59. Prior to the amputation of his legs, plaintiff was able to sit up straight, move himself about in a wheelchair, and drive a car specially equipped with hand controls. Plaintiff lived alone or with a girlfriend, and was independent other than requiring assistance with showering. Plaintiff was socially active with both family and friends, and had several romantic relationships. Plaintiff's activities included office functions, picnics and barbecues, target shooting, off-road vehicles, poker games with friends, going to the swimming pool at his apartment complex, automobile repairs, shopping, going dancing and going to taverns. 60. Plaintiff is now confined to a bed, and lives virtually in one room of his rented home. Plaintiff bathes every three days with the assistance of a nurse and aide, but otherwise remains in bed. His mother does plaintiff's shopping and prepares his meals. His mother or aides must empty plaintiff's urinal and colostomy bags. 61. Plaintiff's sole transportation is by ambulance. Due to the difficulty posed by transportation, plaintiff was unable to attend his son's funeral in February, 1995. 62. Without his legs, plaintiff is unable to sit upright without bracing himself by holding onto something. He lies in his bed in a semi-reclining position; the bed has a trapeze-like bar fixed overhead which plaintiff can grasp in order to pull himself to a more upright position as needed. 63. At the time of his admission to the VA hospital in May, 1991, plaintiff was employed by Southwestern Bell Telephone as a telephone operator, at a weekly wage of $459.50. Plaintiff had worked for the telephone company for approximately ten years. 64. Prior to that time, plaintiff held a job at the Army hospital at Fort Leonard Wood. 65. Plaintiff has been unable to work since the amputation of his legs. 1410 66. Plaintiff considers himself to be disfigured and to look "like a freak" because he has no legs. Plaintiff has experienced depression after his amputation, and for a time saw a psychologist. 67. Following the amputation of his legs, plaintiff has continued to experience pressure sores, particularly on his buttocks. At times, plaintiff has been hospitalized or in a nursing home for treatment, particularly for sores on his buttocks which have not totally healed following the hospitalization at issue in this case. 68. When the sores on plaintiff's buttocks have improved, any prolonged sitting in an upright position causes a recurrence of the sores. 69. Because of the lack of his femurs to provide a base and balance for sitting, coupled with the chronic pressure sores on his buttocks which stem from the treatment plaintiff received at the VA hospitals, plaintiff is unable to sit upright for any length of time, even were he to have a custom-made amputee wheelchair. 70. Primarily for this reason, plaintiff is not employable. Plaintiff receives approximately $333 per month under a long-term disability plan through Southwestern Bell Telephone, and approximately $686 per month in Social Security disability. 71. Plaintiff was in the care of St. John's Mercy Medical Center hospital from July 19, 1991 through September 5, 1991, and in the care of St. John's Mercy Medical Center's rehabilitation facility from September 5, 1991 to September 23, 1991. This care included plaintiff's amputations and his recuperation and rehabilitation therefrom. The reasonable and necessary charges of the hospital totalled $108,719.89. The reasonable and necessary charges of the rehabilitation facility totalled $12,687.61. 72. Plaintiff was readmitted to St. John's Mercy Medical Center hospital from November 26, 1991 to November 30, 1991, for additional care and treatment related to the perirectal abscess which plaintiff developed during his VA hospitalization. The reasonable and necessary charges for this hospitalization totalled $5,891.41. 73. The total charges billed by the VA for plaintiff's hospitalization from May 9, 1991 through July 19, 1991 are $51,095.00. 74. At the time of trial, plaintiff had a reasonable life expectancy of an additional 24 years, to age 65. 75. Based on plaintiff's weekly wage at the time of his hospitalization in May, 1991, and based on a finding that plaintiff reasonably might have continued to work for an additional 21 years to age 62, plaintiff's lost wages total $501,774.00, consisting of $125,443.50 in wages lost between May, 1991 and the date of this finding, and $376,330.50 in lost wages from the date of this finding to age 62. 76. Based on the evidence presented at trial, plaintiff's damages for pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement and loss of capacity to enjoy life reasonably total $385,000. Of that figure, and because required by § 538.215.1 R.S.Mo., the Court would fix the percentage of plaintiff's non-economic damages accrued at the time of this finding at 25% of the total, or $96,250, and the percentage of plaintiff's non-economic damages to be accrued after this finding at 75% of the total, or $288,750. 77. Plaintiff's future medical damages, arising from reasonable expenses for necessary drugs, therapy, and medical, surgical, nursing, x-ray, custodial and other health and rehabilitative services which are attributable to plaintiff's injuries caused by the negligence of defendant, reasonably total $2,082,625. Conclusions of Law The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1346(b). Venue in this district is proper pursuant to 28 U.S.C. § 1402(b), in that plaintiff resides in the district and the acts and omissions complained of occurred in the district. I. Liability A. Defendant's Negligence The Federal Tort Claims Act waives the sovereign immunity of the United States 1411 and renders it liable in tort "in the same manner and to the same extent as a private individual under like circumstances, [except] for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. The law of Missouri, as "the law of the place where the act or omission occurred," provides the substantive decisional law applicable to plaintiff's negligence claims. 28 U.S.C. § 1346(b). Under Missouri law, the three elements of a prima facie case of medical malpractice are: (1) proof that defendant's act or omission failed to meet the requisite standard of care; (2) proof that the act or omission was performed negligently; and (3) proof of a causal connection between the act or omission and the injury sustained by the plaintiff. Klaus v. Deen, 883 S.W.2d 904, 907 (Mo.App. 1994). The Court finds that plaintiff has met his burden of proving liability with respect to three of the four species of negligence which he alleges. The testimony of plaintiff's medical expert, supported by more than a preponderance of the evidence as to the underlying facts, has persuaded the Court that the medical treatment rendered to plaintiff by defendant's agents fell below the degree of skill and learning ordinarily used by medical professionals under similar circumstances in the areas of antibiotic treatment for plaintiff's pressure sores, delay in compliance with the May 23, 1991 order for a surgical consultation, and failure to follow the order of the John Cochran Surgical Service for weekly follow-up visits for evaluation of plaintiff's wounds by the surgical staff. The Court also readily finds that these failures and omissions were negligently committed, and that each constituted a substantial factor in plaintiff's ultimate injury, namely the amputation of his legs. These three failures on the part of the Jefferson Barracks staff permitted infection to run rampant in plaintiff's pressure sores to the point that both femurs became infected, and otherwise allowed the wounds to enlarge and deteriorate to the point that the amputations became necessary. The several bacteriology reports showing untreated infections in plaintiff's buttocks and hip wounds, the repeated references in plaintiff's records to suspected osteomyelitis, and the recommendation of the surgeons at John Cochran that plaintiff have continued antibiotic treatment particularly support the finding that the lack of effective antibiotic treatment specifically directed to the infections in plaintiff's pressure sores was negligent. The two other related species of negligence involve delay in and lack of surgical consultation, both contrary to orders in plaintiff's chart. The first of the two, the 13-day delay in the surgical consult ordered May 23, is significant for the fact that only through surgical intervention was the large subcutaneous deposit of pus and stool in plaintiff's right thigh discovered and drained. This contributed to the advancement of the unchecked infection in plaintiff's hip wounds which ultimately reached his femurs and was a substantial factor in the necessity of amputation. The second failure in surgical consultation was the failure to return plaintiff to the surgical service for weekly follow-up evaluations, as ordered. The lack of surgical follow-up deprived plaintiff of the optimal wound management by surgical debridement, and contributed to the deterioration of his sores to a size and severity too great to permit healing. The Court is not persuaded, however, that defendant is liable on the fourth basis urged by plaintiff, i.e., for the failure to use a Clinatron bed in the treatment of plaintiff. Although a Clinatron bed was recommended by the surgeons at John Cochran, the Court concludes based on the preponderance of the evidence that the use of other pressure reductive mattresses and techniques in the care of plaintiff constituted the medical equivalent of the Clinatron bed and was within the requisite standard of medical care. Neither is the Court persuaded that the failure to use that particular pressure reductive bed contributed in any substantial fashion to the deterioration of plaintiff's condition and the ultimate amputation of his legs. B. Plaintiff's Contributory Fault Defendant has urged that, in several ways, plaintiff's own negligence contributed 1412 to his injury, thereby proportionately reducing any liability of defendant. Comparative fault applies to medical malpractice claims under Missouri law. See § 538.230 R.S.Mo. (referring to apportionment of fault among the parties); see also Love v. Park Lane Medical Center, 737 S.W.2d 720, 723-25 (Mo. 1987). Defendant has presented evidence and argument concerning plaintiff's failure to use a Roho cushion on the trip which preceded his admission at Jefferson Barracks, his insistence on smoking cigarettes during his stay in the VA hospitals, and his non-compliance with his treatment regimen. The Court finds that plaintiff's failure to use a Roho cushion on the trip substantially contributed to initially cause the hip and buttocks pressure sores with which he presented himself to Jefferson Barracks. At that time, plaintiff had been a paraplegic for more than twenty years, and was well familiar with the necessary means to attempt to prevent the development of pressure sores. On this point, the Court finds persuasive the reference in the medical records to plaintiff's admission that his own lack of good judgment in failing to use the Roho cushion was largely responsible for the development of the sores. Upon plaintiff's admission, the four hip and buttocks sores ranged as large as 12½ centimeters, and up to Grade III in severity. Although the negligence of the VA hospital staff in the subsequent treatment of the sores, as previously discussed, is the primary cause of plaintiff's ultimate injury, the Court nonetheless finds it reasonable to fix at 5% the contributory fault of plaintiff with regard to the initial development of the sores. Defendant's evidence concerning plaintiff's cigarette smoking is also persuasive, consisting of the testimony of several witnesses, including the plaintiff, to the effect that plaintiff insisted on smoking while in the hospital, despite repeated medical advice against it. The testimony of several of defendant's medical witnesses concerning the deleterious effect of smoking on healing was not rebutted by plaintiff's evidence. The Court therefore concludes that plaintiff's smoking negligently and causally contributed to his ultimate injury, by contributing to the retardation of the healing of his wounds to the point that a serious infection set in. The Court fixes the percentage of plaintiff's contributory fault in this regard at 5%, finding that figure to be supported by the weight of the evidence on the issue. As for plaintiff's occasional non-compliance as a patient, such as with turning in bed, etc., the Court finds that the evidence of such incidents is not substantial enough to support a finding of contributory fault and the fixing of any apportionment of liability therefor. This is particularly so in view of the existence of potentially counter-balancing testimony concerning the occasional failure of the VA medical staff to seek to turn plaintiff on the regular and frequent basis ordered in plaintiff's chart. In contrast with the undisputed evidence of plaintiff's continual smoking, the testimony concerning plaintiff's non-compliance in other respects is too episodic to demonstrate that the various incidents played a quantifiable role in the causation of plaintiff's ultimate injury. II. Damages A. Requirements of Missouri Law Section 538.215.1 R.S.Mo. requires the trier of fact in a medical malpractice action to itemize damages according to the following categories, the terms of which are defined in § 538.205: (1) Past economic damages arising from pecuniary harm, such as medical damages, lost wages, and lost earning capacity, which have accrued at the time the damages findings are made; (2) Past noneconomic damages arising from nonpecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium, which have accrued at the time the damages findings are made; (3) Future medical damages arising from reasonable expenses for necessary drugs, therapy, and medical, surgical, nursing, x-ray, dental, custodial and other health and rehabilitative services, which will accrue after the damages findings are made; 1413 (4) Future economic damages, excluding future medical damages arising from pecuniary harm, such as lost wages and lost earning capacity, which will accrue after the damages findings are made; and (5) Future noneconomic damages arising from nonpecuniary harm which will accrue after the damages findings are made. In medical malpractice actions, the total of noneconomic damages (the sum of categories (2) and (5) above) is capped by § 538.210.1 R.S.Mo. The limitation is subject to annual revision. As calculated by the director of the division of insurance and published in the Missouri Register, Vol. 21, No. 6, p. 736 (March 15, 1996), the cap for 1996 is $492,000.00. B. Economic Damages Other than Future Medical Expenses Plaintiff's past economic damages consist in this case of medical expenses and lost wages. As indicated in the Court's findings of fact, the evidence supported the following medical expenses properly to be incorporated into the calculation of defendant's liability: VA Medical Center charges for 5/9 7/19/91 $ 51,095.00 St. John's charges for 7/19 9/5/91 $108,719.89 St. John's charges for 9/5 9/23/91 $ 12,687.61 St. John's charges for 11/26 11/30/91 $ 5,891.41 ___________ $178,393.91 The Court notes the existence of a number of exhibits potentially relevant to plaintiff's past medical damages which were identified during trial but not admitted into evidence, and as to which either no testimony was elicited or the testimony was insufficient to establish the necessary causal connection with defendant's negligence. For example, although plaintiff's treating physician testified as to the reasonableness and medical necessity of recent care and treatment represented in a number of billing records, the exhibits were not admitted into evidence, the record does not contain the amounts of the billings, and the doctor was unable to testify conclusively that the care was necessitated by the VA's negligence or the amputation of plaintiff's legs. Similarly, plaintiff's Exhibit 1 contains a list, generated by plaintiff's health insurer, of medical providers, dates of medical services rendered to plaintiff, and the charges for each. Although the government stipulated to the accuracy of the document as to the medical charges enumerated therein, plaintiff failed to adduce evidence establishing a causal link between any of the charges and the basis for the government's liability in this case, other than the charges of the VA Medical Center for the hospitalization here at issue. Without an adequate evidentiary basis for finding that the care rendered by a particular provider is attributable to the injuries caused by the government's negligence, the Court cannot include a particular medical expense in the judgment to be awarded to plaintiff; for example, the government would not properly be held responsible for medical expenses incurred by plaintiff if he were to break his finger or require root canal surgery. For these reasons, most of Exhibit 1 has not been shown to be relevant to the calculation of plaintiff's damages. The other component of plaintiff's past economic damages is his lost wages. Plaintiff testified that at the time of his hospitalization in May, 1991, his weekly wage as a telephone operator was $459.50. The Court finds that the evidence as a whole, particularly the evidence concerning plaintiff's overall condition, independence, and activities prior to the hospitalization and amputations, reasonably supports a finding that, absent the injuries attributable to defendant's negligence, plaintiff could have continued to work in the same or similar capacity for an additional 21 years to age 62. Defendant presented no evidence to challenge such a conclusion, and plaintiff presented no evidence concerning the probability of advancement or higher wages. On the record evidence, the Court thus finds that plaintiff's lost wages from May, 1991 for an additional 21 years total $501,774.00. Dividing this sum into past and future amounts, as required by § 538.215.1 R.S.Mo., the Court will award plaintiff $125,443.50 in past lost wages for the period from May, 1991 to date, and $376,330.50 for lost wages from the present to age 62. C. Noneconomic Damages The Court has given careful consideration to plaintiff's noneconomic damages. The 1414 facts of this case and the nature of plaintiff's resulting injuries are such that the attendant emotional and other hedonic injuries are among the most substantial which the Court has encountered. Plaintiff's physical impairment and disfigurement, two elements of noneconomic injury specifically enumerated in the statutory definition, are both obvious and great. As a result, plaintiff is largely immobilized and confined to life in one room. Plaintiff testified very credibly concerning his feelings of depression, helplessness and hopelessness, his embarrassment that he looks like a "freak," and the loss of relationships following his amputations. The testimony of plaintiff, his family members and a friend amply demonstrated the extent to which, prior to the amputations, plaintiff was independent, highly social and extremely active, even though paraplegic. Based on his interviews with plaintiff, his family and friends, plaintiff's damages expert testified persuasively in support of his conclusion that the statistical degree of change in plaintiff's enjoyment of life was 87% in other words, that plaintiff has lost 87% of his enjoyment of life. For all these reasons, and in view of the totality of the evidence, the Court finds that plaintiff's damages for pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement and loss of capacity to enjoy life reasonably total $385,000. Section 538.210.1 R.S.Mo. requires that the Court divide the total sum into past and future components. Using a life expectancy of 24 years from the time of trial, the ratio between the roughly five-year period from plaintiff's amputations to the present and the period from the present through the remainder of plaintiff's life expectancy is approximately 1 to 5. Nonetheless, because the Court finds it more likely than not that plaintiff suffered his noneconomic injuries most intensely in the period immediately following his amputations, while first trying to cope with his disfigurement, the Court fixes the percentage of plaintiff's noneconomic damages accrued at the time of this finding at 25% of the total, or $96,250, and the percentage of plaintiff's non-economic damages to be accrued after this finding at 75% of the total, or $288,750. D. Future Medical Expenses Finally, the largest component of the damages to be awarded plaintiff is his future medical expenses. In consultation with plaintiff's treating physician, plaintiff's damages expert prepared a "Life Care Summary" setting forth, by category, an itemized list and calculation of plaintiff's future medical expenses over his reasonable life expectancy of 24 years. Included are such categories as medical evaluations, medical tests, medications, therapies, attendant care, and medical supplies and equipment. The expert also prepared an addendum memorandum further explaining his basis for the inclusion of each item of cost. The Court has carefully reviewed the summary and addendum, the testimony of plaintiff's expert explaining and defending them, and the testimony of defendant's expert challenging portions of the summary. Overall, the Court finds both the necessity and reasonableness of the costs itemized in the report to be supported by the record. The Court accepts in part and rejects in part the challenges of defendant's expert to particular items in the Life Care Summary. In addition, the Court has made determinations of its own that certain items of expense included in the summary are not appropriately charged to the government, for example, because the record does not support a finding that the expense is causally necessitated by the injuries plaintiff suffered as a result of defendant's negligence, as opposed to the plaintiff's preexisting medical condition. After making these revisions, the Court recalculates the total expenses appropriately contained in the Life Care Summary at $2,082,625. Plaintiff's expert testified that the itemized summary of expenses represents only one of two options for plaintiff's future care, the other being residence in a skilled nursing facility. Under this second option, all of plaintiff's medical needs and expenses would be incurred in a single, albeit more expensive, payment. Testimony at trial indicated that plaintiff's treating physician and nurses 1415 were of the opinion that residence in a skilled nursing facility was more appropriate for plaintiff's condition at that time than his current system of in-home care. The record contains no explanation for the fact that plaintiff nonetheless continued to reside in his own home, which may in fact be plaintiff's preference despite the recommendation of his doctor and nurses. The record was equally insubstantial concerning the likelihood that future changes in plaintiff's condition would require admission to a skilled nursing facility. For these reasons, the Court is not persuaded that the more expensive estimate of the cost of such treatment should be taken into account in calculating plaintiff's future medical expenses, which are in any event substantial. The Court therefore deems it reasonable to fix the amount of plaintiff's future medical damages at $2,082,625, a figure representing the portion of the Life Care Summary reasonably supported by the evidence as medically necessary and causally related to defendant's negligence. E. Total Damages In view of the Court's assessment of 10% contributory fault to plaintiff, the Court reduces the total amount of plaintiff's damages by that proportion. As previously noted, the government is not subject under the FTCA to the payment of prejudgment interest. See 28 U.S.C. § 2674. Based on the foregoing findings of fact and conclusions of law, the Court finds in favor of plaintiff and against defendant on plaintiff's FTCA claim and assesses plaintiff's damages in the following amounts, here itemized pursuant to § 538.215.1 R.S.Mo.: Past economic damages: $ 303,837.41 Past noneconomic damages: $ 96,250.00 Future medical damages: $2,082,625.00 Future economic damages, excluding $ 376,330.50 future medical damages: Future noneconomic damages: $ 288,750.00 _____________ $3,147,792.91 Minus 10% for plaintiff's contributory - 314,779.29 fault: _____________ TOTAL DAMAGES $2,833,013.62 F. Periodic Payments Section 538.220.2 R.S.Mo. authorizes the Court to require that "future damages be paid in whole or in part in periodic or installment payments if the total award of damages in the [medical malpractice] action exceeds one hundred thousand dollars." The provision mandates that the Court impose such a requirement if requested by any party prior to the entry of judgment. Furthermore: Any judgment ordering such periodic or installment payments shall specify the recipient, the amount of each payment, the interval between payments, and the number of payments. The parties shall be afforded the opportunity to agree on the manner of payment of future damages, including the rate of interest, if any, to be applied, subject to court approval. However, in the event the parties cannot agree, the unresolved issues shall be submitted to the court for resolution, either with or without a post-trial evidentiary hearing. ... § 538.220.1 R.S.Mo. The statute further provides that, upon the plaintiff's death, the right to receive future medical expenses ceases, except to the extent necessary to satisfy medical expenses due and owing at that time. See § 538.220.5 R.S.Mo. The right to receive other types of future damages by way of periodic payments shall "pass in accordance with the Missouri probate code unless otherwise transferred or alienated prior to death." Id. These provisions sensibly protect against the possibility of a windfall to plaintiff's heirs in the event that his life expectancy is considerably less than has been found by the Court as a basis for calculating his damages. Particularly in view of the amount of the future medical damages fixed by the Court, and the fact that the judgment will be paid at the expense of the taxpayers, the Court is inclined to the view that periodic payments of the future medical damages are appropriate. For these reasons, the Court will defer the entry of judgment to allow either party to file a motion invoking the periodic payment provisions, and to allow the parties time in which to attempt to reach agreement concerning the logistics of a periodic payment plan. Within ten days, the parties shall file either a motion or motions requesting the imposition of a periodic payment schedule, or a joint memorandum advising the Court that 1416 neither party desires that a periodic payment schedule be employed in this case. In the event that a motion invoking § 538.220.2 is filed by either party, the parties will have thirty days from the date of this order in which to file a memorandum setting forth the terms jointly agreed to by them concerning periodic payments. The parties should be aware that, even in the absence of a request by one of them, the Court may in the exercise of its discretion impose a periodic payment schedule, unless good cause is shown why doing so would not be appropriate. To encourage the parties in a reasonable exercise of their judgment concerning a proposed payment schedule, the Court here notes some of the considerations relevant to the formulation of an appropriate schedule. First, "all past damages must be paid in a lump sum at the time of judgment." Vincent v. Johnson, 833 S.W.2d 859, 866 (Mo.1992). The designated payee and the number, amount, and frequency of payments must all be specified in the judgment. See § 538.220.2. As the statute itself suggests, interest on the amount of future damages to be paid over time is an appropriate consideration. In this regard, the Missouri Supreme Court has advised that "in determining the appropriate rate of interest, the court should consider what would constitute prudent investment, beginning with the rate of return on equivalent long-term investments...." Vincent, 833 S.W.2d at 867. Because the judgment debtor is the United States, the Court would not likely require the posting of security as provided for in § 538.220.3. As suggested in § 538.220.4, the payment of attorney's fees must be taken into account in fixing the presumably sizeable lump sum payable at the time the judgment becomes final, which may include a significant portion of the future damages in addition to all past damages. See id. at 866 ["[I]t is presumed that, absent the attorney's agreement, attorney's contingent fees will be paid at the time of judgment."]; see also § 538.220.2 R.S.Mo. [referring to a requirement that "future damages be paid in whole or in part in periodic or installment payments" (emphasis added)]. Funds for payment of plaintiff's attorney's fees must therefore be available from the initial payment and should not be subject to payment over time under the schedule to be imposed. The Court is also inclined to the view that the periodic payments should not stretch over the entire life expectancy of the plaintiff. Counsel are encouraged to bear in mind all these and other relevant considerations in attempting to formulate an appropriate periodic payment schedule. Accordingly, IT IS HEREBY ORDERED that, within ten (10) days of the date of this order, the parties shall file either: (1) a motion or motions requesting the imposition of a periodic payment schedule, or (2) a joint memorandum advising the Court that neither party desires that a periodic payment schedule be employed in this case. In the event that a motion invoking § 538.220.2 is filed by either party, the parties shall file, no more than thirty (30) days from the date of this order, a memorandum setting forth the terms jointly agreed to by them concerning periodic payments. IT IS FURTHER ORDERED that the entry of judgment will be deferred pending the Court's consideration of the imposition of a periodic payment schedule for all or part of plaintiff's future damages. *1417	{ "pile_set_name": "FreeLaw" }
Filed 6/6/13 P. v. McIntosh CA2/6 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 SIX THE PEOPLE, 2d Crim. No. B238443 (Super. Ct. No. 2010036791) Plaintiff and Respondent, (Ventura County) v. AARON ROBERT MCINTOSH, Defendant and Appellant. Aaron Robert McIntosh appeals a judgment of conviction of street terrorism, and unlawful driving or taking of a vehicle, with findings of a crime committed to benefit a criminal street gang, a crime committed while on bail in another case, and service of three prior prison terms. (Pen. Code, §§ 186.22, subd. (a) & (b)(1), 12022.1, subd. (b), 667.5, subd. (b); Veh. Code, § 10851, subd. (a).)1 We affirm. FACTS AND PROCEDURAL HISTORY James David Ivans, Jr. became a "full-patch" member of the Ventura chapter of the Hells Angels motorcycle gang in 2006, after having served as a "hang around" and "prospect" for several years. McIntosh was also a "full-patch" and "filthy 1 All further statutory references are to the Penal Code unless stated otherwise. References to section 12022.1 are to the version in effect prior to January 1, 2012. few" member of the Ventura chapter, i.e., he committed violent crimes on behalf of the gang. Ivans rode a Harley-Davidson motorcycle that had belonged to his father. Ivans's father, a member of a motorcycle club associated with the Hells Angels, died in a motorcycle accident. Tron Elliott, a motorcycle repair shop owner, rebuilt the motorcycle for Ivans. Ivans described his relationship with Elliott as "best friends." Based upon an understanding with Elliott, Ivans transferred title to the motorcycle to him by a vehicle title document ("pink slip"). Ivans did this because he could not afford to pay Elliott for the repairs. He also intended to protect the motorcycle from seizure by law enforcement or the Hells Angels. Ivans described the title transfer as a common practice among the gang members. Ivans retained sole possession of the motorcycle and was its only rider with the exception of another motorcycle mechanic who repaired it. Elliott did not drive or possess the motorcycle after he rebuilt it, and Ivans never lent the motorcycle to McIntosh. In 2010, Ivans pleaded guilty to attempted extortion and received a grant of probation with terms and conditions that included not associating with the Hells Angels. Former Hells Angel President George Christie gave Ivans the ultimatum "to either quit or get kicked out." Ivans had witnessed beatings inflicted by Hells Angels members upon resigning members and was fearful of physical retaliation. In October 2010, Ivans moved to the home of Vincente Felix, a friend who was not associated with the Hells Angels. Ivans brought his motorcycle and Hells Angels clothing with him. He informed Felix that he was leaving the Hells Angels and that the clothing would be returned to them. At Ivans's request, Felix removed the motorcycle's gasoline tank bearing the Hells Angels insignia and gave the tank to another gang member. Ivans requested that Felix "hold" the now-inoperable motorcycle for him. 2 Ivans, who was in protective law enforcement custody, then left Ventura. Felix delivered the Hells Angels clothing to Christie because "normal people aren't supposed to own that stuff." On October 8, 2010, McIntosh arrived at Felix's home, asked about Ivans's whereabouts, and stated that he was going "to take the bike." Felix did not question McIntosh where he was taking the motorcycle. McIntosh and his girlfriend took the motorcycle. Shortly thereafter, an undercover sheriff's deputy followed both a pickup truck that contained Ivans's motorcycle in the bed of the truck and an automobile driven by McIntosh's girlfriend to the Oak View home of Hells Angels member Joe Cerezo. The deputy saw McIntosh and his girlfriend enter the residence, but he lost sight of the pickup truck and motorcycle. Later that afternoon, McIntosh and his girlfriend took the motorcycle to Wayne Ortman, a motorcycle repairman in Ojai, for repair and replacement parts. That same day, Ivans spoke with Felix and learned that McIntosh had taken his motorcycle. Ivans then contacted Ventura County Sheriff's Deputy Brian Whittaker to report the theft. Whittaker informed Ivans that he could not report the theft because he was not the motorcycle's legal owner. In a recorded conversation, Ivans telephoned Elliott and asked that he report the theft. Elliott refused, stating that he would not put his "name out there like a fucking rat." He agreed to transfer title to Ivans, however, to allow him to report the motorcycle theft. Elliott testified that he executed the pink slip to "[g]et [Ivans] and his problem out of my hair." Elliott also executed a "bill of sale" at the police station, prepared by a police officer in part to assuage Elliott's concerns of involvement in the investigation. In another recorded conversation, Ivans spoke with Felix who stated that Mcintosh took the motorcycle and ordered him to "stay clear." Felix was anxious because he resided near the Hells Angels clubhouse and feared retaliation from the gang members. 3 On October 9, 2010, sheriff's deputies recovered Ivans's motorcycle in Ortman's garage. Ortman later admitted that McIntosh requested that he repair the motorcycle. Evidence of Prior Similar Theft Evidence Code section 1101, subdivision (b) William Kyle Hoffman bought a used Harley-Davidson motorcycle in 2009 and became its registered owner. He later became a "hang around" and a "prospect" of the Ventura chapter of the Hells Angels. On August 20, 2010, Hoffman did not attend a required Hells Angels meeting because he decided to resign from the gang to spend time with his girlfriend and their baby. He did not appear at the meeting to announce his resignation because he knew that a member could be brutally beaten for resigning. In the early morning of August 21, 2010, McIntosh, Joe Cerezo, and another Hells Angels member arrived at Hoffman's residence and spoke with him regarding his resignation. Hoffman agreed to return his Hells Angels clothing, but refused to surrender his motorcycle. McIntosh and Cerezo then removed Hoffman's motorcycle from the side of the residence, forcing it through a wooden gate. McIntosh donned his Hells Angels' vest, started the motorcycle by a toggle switch, and drove away. Hoffman reported to police that McIntosh and the others stole his motorcycle. Ventura County Sheriff's Deputy Victor Medina later saw McIntosh riding the motorcycle in Santa Barbara, and arrested him. The motorcycle was then returned to Hoffman and with assistance from law enforcement, he moved from Ventura. Hoffman also testified concerning the criminal activities of the Ventura chapter. As a prospective member, he knew of assaults, stabbings, and gun and drug trafficking committed by members. Hoffman also described the brutal assault of Danny Siegel, a full-patch Hells Angels member who left the motorcycle gang. 4 Members hog-tied Siegel while a tattoo artist blacked out his tattoos. Later, McIntosh and another member beat him severely. Hoffman witnessed the assault upon Siegel. Hells Angels Gang Evidence Ventura County Sheriff's Deputy Brian Whittaker testified as an expert witness regarding the Hells Angels motorcycle gang. Whittaker, a member of the International Outlaw Motorcycle Gang Investigators Association, had extensive training and experience in investigating motorcycle gangs. Whittaker testified that the primary criminal activities of the Ventura chapter of the Hells Angels included drug and firearm trafficking, extortion, and assault with a deadly weapon. He also described predicate criminal convictions committed by prospects and members of the Ventura chapter, including drug and firearm crimes. Whittaker described a Hells Angels membership as a lifelong commitment, and stated that a member who resigned would receive harsh treatment, e.g., forceful removal of tattoos and confiscation of his motorcycle. Conviction and Sentencing The jury convicted McIntosh of street terrorism (count 1) and unlawful driving or taking of a vehicle (count 2). (§ 186.22, subd. (a); Veh. Code, § 10851, subd. (a).) It also found that he committed count 2 to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) In a separate proceeding, the trial court found that McIntosh committed the crimes while on bail in another case, and that he served three prior prison terms, including one for a prior conviction of Vehicle Code section 10851. (§§ 12022.1, subd. (b), 667.5, subd. (b).) The trial court sentenced McIntosh to a prison term of 10 years, based upon a three-year midterm for count 2, a four-year criminal street gang enhancement, and three one-year terms for the prior prison terms. The court imposed a two-year on- bail enhancement but stayed it until resolution of the prior case involving theft of Hoffman's motorcycle. It also imposed and stayed a two-year midterm for count 1, imposed a $1,000 restitution fine, a $1,000 parole revocation restitution fine (stayed), an 5 $80 court security assessment, and a $60 criminal conviction assessment, and awarded McIntosh 681 days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) McIntosh appeals and contends that: 1) insufficient evidence supports his conviction of unlawful taking of a vehicle; 2) the trial court erred by admitting Hells Angels gang evidence; and 3) the trial court denied his constitutional right to confront witnesses by admitting hearsay evidence of the predicate gang offenses. DISCUSSION I. McIntosh argues that there is insufficient evidence to support his conviction of unlawful taking of a vehicle because there is no named victim. He contends that Ivans was neither the title owner nor in possession of the motorcycle at the time of the theft. In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution primarily resting upon circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) We must accept logical inferences that the jury might have drawn from the evidence although we would have concluded otherwise. (People v. Streeter, supra, at p. 241.) Vehicle Code section 10851, subdivision (a) provides: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . is guilty of a public offense . . . ." A violation of Vehicle Code section 6 10851 requires proof of a specific intent to deprive the owner of the car of possession or title for either a temporary or permanent period. (People v. Clifton (1985) 171 Cal.App.3d 195, 199.) The prosecutor must establish by direct or circumstantial evidence that the defendant lacked the consent of the vehicle's owner. (Ibid.) Moreover, the records of the California Department of Motor Vehicles do not conclusively establish true ownership of a vehicle. (Id. at p. 200.) Here Ivans and Elliott testified that they did not give McIntosh permission to take the motorcycle. McIntosh also did not inform Ivans or Elliott that he was taking the motorcycle and he did not inform Felix where he was taking it. Moreover, McIntosh took Hoffman's motorcycle several months earlier when Hoffman resigned from the gang. Whether the proper victim was Ivans or Elliott, McIntosh nevertheless committed the crime. (People v. Clifton, supra, 171 Cal.App.3d 195, 200 ["The records of the DMV do not necessarily and conclusively establish the true ownership of a vehicle"].) Sufficient evidence and all reasonable inferences therefrom support his conviction. II. McIntosh contends that admission of the Hells Angels gang evidence was "highly prejudicial," denying him due process of law pursuant to the federal and California constitutions. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [gang evidence may be "extraordinarily prejudicial" or of little relevance to guilt].) He contends that the trial court was required sua sponte to limit the gang evidence or to bifurcate trial of the street terrorism count and the gang enhancement from the motorcycle theft. McIntosh relies upon People v. Albarran (2007) 149 Cal.App.4th 214, 232 [admission of irrelevant gang evidence extremely prejudicial denying defendant due process of law] and asserts that the error is reversible pursuant to any standard of review. McIntosh has forfeited this argument because he neither requested the trial court to bifurcate the gang-related count and enhancement, nor did he object to the 7 gang-related evidence. Indeed, McIntosh acknowledged in court that the gang-related evidence "has been upheld by the Albillar case, and . . . [the prosecutor] must have read the Albillar case. . . ." He has not preserved the claim for review. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028.) McIntosh also does not cite authority requiring the court's obligation to sua sponte bifurcate the allegations or limit the evidence. Moreover, the gang-related evidence was relevant to explain the Hells Angels' practice of confiscating the motorcycles of those who leave the organization and to refute any evidence that McIntosh was borrowing the motorcycle to repair it. The evidence also explained the reluctance of witnesses to become involved or testify at trial, e.g., Elliott refused to file a police report regarding the theft and evaded a subpoena requiring his presence at trial. People v. Albarran, supra, 149 Cal.App.4th 214 is distinguishable. There no evidence existed connecting defendant's gang membership to his crime of shooting inside a home during a birthday party. (Id. at p. 227 [evidence of shooting did not establish a gang-related motive and gang expert witness testified he did not know reason for shooting].) In contrast, the gang-related evidence here was relevant to the charged count of street terrorism and to the gang enhancement. (People v. Hunt (2011) 196 Cal.App.4th 811, 817, 818 [distinguishing Albarran on that basis]; People v. Williams (2009) 170 Cal.App.4th 587, 612 [same].) In his reply brief, McIntosh relies upon the recent decision of our Supreme Court in People v. Rodriguez (2012) 55 Cal.4th 1125, 1148, holding that the crime of street terrorism pursuant to section 186.22, subdivision (a), requires that at least two gang members commit the underlying felony. In Rodriguez, the defendant was a criminal street gang member who acted alone in committing attempted robbery. In contrast, here an undercover sheriff's deputy saw Ivans's motorcycle in the bed of a red pickup truck occupied by two men and followed by an automobile driven by McIntosh's girlfriend. Minutes later, McIntosh and his girlfriend entered the home of Joe Cerezo, another Hells Angels member who was involved nearly two 8 months earlier in the taking of Hoffman's motorcycle. Indeed, Cerezo informed Hoffman that he intended to take Hoffman's motorcycle "so . . . some members down at the clubhouse won't get upset." In a red pickup truck, McIntosh later delivered Ivans's motorcycle to Ortman for repair. This evidence and reasonable inferences therefrom establish that McIntosh and Cerezo were two Hells Angels members involved in the crime of street terrorism. III. McIntosh asserts that the trial court erred by permitting Deputy Whittaker's testimony regarding the predicate crimes committed by the Hells Angels as an element of the crime of street terrorism and the gang enhancement. (§ 186.22, subds. (a) & (b).) McIntosh claims that the circumstances of the predicate crimes are hearsay evidence which violates his Sixth Amendment right to confront witnesses. He points out that although he did not object to the testimony at trial, he raised an objection thereto in his motion for a new trial. For several reasons, we reject McIntosh's argument. First, Mcintosh did not object at trial to Whittaker's testimony regarding the factual circumstances underlying the predicate crimes. Absent a specific and timely objection, the claim is not preserved for review. (People v. Riccardi (2012) 54 Cal.4th 758, 827-828, fn. 33 [failure to preserve claim pursuant to Sixth Amendment confrontation clause]; People v. Samuels (2005) 36 Cal.4th 96, 122 [failure to preserve claim of inadmissible hearsay evidence].) Moreover, arguments made in a motion for new trial do not constitute a specific and timely objection made at trial. (People v. Williams (1997) 16 Cal.4th 153, 254 [subsequent arguments in a motion for new trial do not substitute for a timely objection].) Forfeiture aside, we rejected this argument in People v. Ramirez (2007) 153 Cal.App.4th 1422, 1424 [gang expert relied upon hearsay evidence regarding facts of predicate crimes]. An expert witness testifying regarding criminal street gangs may base his opinion upon conversations with gang members, information gathered by other 9 law enforcement officers, his own personal investigations, or other information. (People v. Gardeley (1996) 14 Cal.4th 605, 620.) "Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which [Crawford v. Washington (2004) 541 U.S. 36 and progeny] condemn[]." (People v. Ramirez, at p. 1427.) The judgment is affirmed. NOT TO BE PUBLISHED. GILBERT, P.J. We concur: YEGAN, J. PERREN, J. 10 Charles W. Campbell, Jr., Judge Superior Court County of Ventura ______________________________ Law Office of Anthony D. Zinnanti, Anthony D. Zinnanti for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.	{ "pile_set_name": "FreeLaw" }
250 F.2d 198 Stanislaw IGNATYUK, Libelant,v.TRAMP CHARTERING CORP., a foreign corporation and THEANNITSA, its tackle, apparel, etc., Respondent andClaimant-Appellant, and Connecticut Terminal Company, Inc.,and Canadian Transport Co., Ltd., Respondents-Impleaded, andConnecticut Terminal Company, Inc., Respondent-Impleaded-Appellee. No. 15, Docket 23761. United States Court of Appeals Second Circuit. Argued Oct. 18, 1957.Decided Dec. 16, 1957. Frederick H. Cunningham, New York City (Victor S. Cichanowicz, New York City, of counsel), for appellant. Galli & Locker, New York City (Patrick J. McCann and Patrick E. Gibbons, New York City, of counsel), for appellee. Before MEDINA, HINCKS and WATERMAN, Circuit Judges. MEDINA, Circuit Judge. 1 On October 15, 1953 Stanislaw Ignatyuk, a longshoreman in the employ of Connecticut Terminal Company, Inc., was injured in the course of unloading the SS. Annitsa at the State Pier in New London, Connecticut. Upon the filing of his libel against Tramp Chartering Corp., the owner and operator of the vessel, Tramp impleaded Connecticut Terminal and also the time charterer Canadian Transport Co., Ltd. The final decree awarded damages to Ignatyuk and these damages have been paid. The petition against Canadian Transport was dismissed, and no appeal has been taken from the dismissal. The sole issue before us on this appeal is the correctness of the findings and conclusions supporting so much of the decree as held the steamship company solely liable and dismissed its petition for indemnity against Connecticut Terminal, the stevedore. 2 The SS. Annitsa was moored starboard side to the pier. She carried a cargo of dressed lumber, stowed on deck to a height of about nine or ten feet, covering the entire deck space in the vicinity of Number 5 hatch, where the accident occurred. In loading and stowing this cargo of lumber chains had been placed on the deck, running through or fastened to a number of pad-eyes, that were part of the permanent ship's fittings sometimes used for rigging booms. After lumber had been piled upon these chains to a sufficient height, the chains were brought together on top of the lumber and snugged up by the use of turnbuckles. On the port side offshore a certain cleat about eight feet aft of the Number 5 winches was left uncovered in a space measuring about one foot square. 3 In preparation for the unloading at Number 5 hatch two booms were rigged. The starboard or inshore boom, intended as Burton, was spotted over the pier on which the drafts of lumber were to be placed. The port or offshore boom, as the up-and-down boom, was spotted so that a plumb line from the top would go down to about the middle of the hatch coaming on the port side. This made it necessary to pull the boom sufficiently to port to permit the unloading operation to proceed. To accomplish this a regular guy was rigged from the top down to the end of the boom and this consisted of a wire cable with a length of manila rope at each end to run through the blocks, and a preventer guy pulling the boom to port and away from the hatch. The only available fitting to which this preventer guy could be attached was the cleat, which was of forged steel with two eight-inch wings running fore and aft. 4 It was a difficult task to attach the preventer guy to this cleat, but two of the longshoremen accomplished this by hanging over the side of the vessel, holding on to hooks embedded in the lumber; and one of these men wound the preventer cable in a figure eight manner about the wings of the cleat, making the first turn about the aft wing of the cleat. The two rigs were then 'married' or joined together and the work of unloading proceeded 5 Just as one of the drafts of lumber was being hoisted, the forward wing of the cleat gave way and at the same time the rope on the regular guy parted, with the result that the port boom swung toward the hatch and the flying parts of the rig hit Ignatyuk, inflicting serious injuries. Both the regular guy and the cleat were part of the apparatus and rigging of the ship; and the basic findings by the trial judge were that both were defective; that the vessel was unseaworthy and the shipowner negligent in failing to provide a safe place to work; and that the accident was due to the defects in the manila rope and in the cleat. 6 The claim of indemnity is based upon the agreement of Connecticut Terminal, which we may assume contained a provision, express or implied, that Connecticut Terminal would conduct the unloading operation in an efficient and workmanlike manner. The specific clauses relied upon by appellant are: Section 2, subdivision b, by which the stevedore agreed to: 7 'Provide all necessary stevedoring labor, including winchmen, hatch tenders, tractor and dock crane operators, also foremen and such other stevedoring supervision as are needed for the proper and efficient conduct of the work.' Also Section 2, subdivision c: 8 'Adjust rigging of booms and guys, etc., at hatches where work of discharging and/or loading will be conducted and unrigging when completed, also removing and replacing beams and hatch covers.' And Section 6: 9 'The contractor is to supply all other cargo handling gear and equipment such as hooks, pendants, save-alls, nets, trays, bridle chains and slings (except slings for heavy lifts when hoisted by heavy lift floating or shore derricks) also hand trucks, mechanical trucks or tractors, also dock tractor cranes as needed for efficient stevedoring work.'While Tramp asserts that there was no privity of contract between the shipowner and the stevedore, we may assume the contrary arguendo, as we have concluded that there is no liability on the part of the stevedore even if we should sustain the finding by the trial judge, that the time charterer Canadian Transport Co., Ltd., made the contract with the stevedore on behalf of the shipowner and as its agent. 10 A preliminary point need not detain us long. Reference is made to a of the Maritime Safety Code, compiled by the Maritime Association of the Port of New York, which recommended the use of deck lashings for securing preventers. Neither of the men who went over the side to adjust the preventer was injured, and this coupled with the fact that the provision relied upon is not mandatory but a mere suggestion-- 'may be used'-- disposes of this preliminary contention. 11 Appellant's principal contention is that the preventer should have been first rigged horizontally through the pad-eyes rather than directly on the cleat. But the trial judge found that it was reasonable and proper for the longshoremen to rig the preventer in the way it was rigged, because the pad-eyes were completely covered by the cargo. There was ample evidence to support this finding and the testimony of appellant's expert to the contrary was rejected. We find no error here. 12 It is significant that the equipment was designed to carry a far heavier load than the one with which it was burdened when the accident happened, and the first turn of the cable was around the aft wing of the cleat, but the one that gave way and turned upward was the forward wing. From this the trial judge very properly inferred that the forward wing was not subject to any greater stress because the preventer guy had not first been led through a pad-eye. Moreover, the Maritime Safety Code provides: 'Guys, preventers and other lines should each be fastened to a separate cleat or ring bolt,' and this was done. 13 The mere circumstance that the trial judge does not in terms state that the stevedore performed its contract to do the work in an efficient and workmanlike manner, seems to us of little importance in view of the findings which ascribe the accident solely to the defects in the guy rope and the cleat, and specifically state that no negligence of Connecticut Terminal was in the line of causation. Consistently with these findings we cannot perceive any breach by the stevedore of its warranty of workmanlike service; and we are at a loss to discover any proof of breach by Connecticut Terminal of any of the other clauses of the contract relied upon by the shipowner. Despite all this appellant earnestly presses a further contention to the effect that, while the stevedore might not have been under a duty to discover some latent defect in the forged steel of the cleat, it was under a duty to reject and refuse to use the regular guy because the trial judge found that the manila rope part of this guy was 'black, old and rotten.' But Barry the hatch foreman testified that he tried it out and thought it was all right, even though it did look old; and it held up for some little time as the work progressed before the accident. There is no proof whatever in the case to warrant an inference that the rottenness in this rope, which caused it to part under a normal load, could have been detected by a cursory examination. It was certainly not an obvious defect, as was the 'rusted and kinky' condition of the cables in Shannon v. United States, 2 Cir., 235 F.2d 457, 458. 14 The claim of indemnity here stems from the contract. We hold that an implied warranty of workmanlike performance by a stevedore does not place upon him a duty to discover defects in the apparatus or equipment furnished by the vessel being loaded or unloaded which are not obvious upon a cursory inspection. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S.Ct. 872, 877, 90 L.Ed. 1099; Shannon v. United States, 2 Cir., 235 F.2d 457; Gucciardi v. Chisholm, 2 Cir., 145 F.2d 514; Liverani v. John T. Clark & Son, 231 N.Y. 178, 131 N.E. 881. The seaworthiness of the vessel is a quite different matter and so is the duty of the shipowner to provide a safe place to work. 15 Affirmed.	{ "pile_set_name": "FreeLaw" }
229 F.3d 1356 (Fed. Cir. 2000) MICHAEL J. BROWN, Petitioner,v.DEPARTMENT OF THE NAVY, Respondent. 00-3003 United States Court of Appeals for the Federal Circuit DECIDED: October 20, 2000 Appealed from: Merit Systems Protection BoardKevin M. Grile, Assistant General Counsel, American Federation of Government Employees, AFL- CIO, of Chicago, Illinois, argued for petitioner. With him on the brief were Mark D. Roth, General Counsel; and Charles A. Hobbie, Deputy General Counsel, AFGE, of Washington, DC. Marian E. Sullivan, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were David W. Ogden, Assistant Attorney General; David M. Cohen, Director; and Kathryn A. Bleecker, Assistant Director. Of counsel was Maj. Peter D. Delorier, United States Marine Corps, of Camp Lejeune, North Carolina. Before SCHALL, BRYSON, and LINN, Circuit Judges. Opinion for the court filed by Circuit Judge BRYSON. Dissenting opinion filed by Circuit Judge LINN. BRYSON, Circuit Judge. 1 Based on a charge of improper personal conduct, Michael J. Brown was removed from his civilian position with the Marine Corps. Mr. Brown appealed his removal to the Merit Systems Protection Board, which upheld the action. Before this court, Mr. Brown contends that the Corps failed to establish a sufficient nexus between the charged off-duty misconduct and the efficiency of the service, and that the penalty of removal was unjustified. We affirm. 2 * In 1995, after leaving active duty as a Marine Corps officer, Mr. Brown joined the reserves and secured a civilian position with the Marine Corps at Camp Lejeune, North Carolina. He served as area program manager for the Morale, Welfare, and Recreation Department (MWR) at the base. MWR programs provide service members and their families with a variety of services including athletic, recreation, and entertainment activities. An area program manager plans, develops, and coordinates MWR activities for the military personnel assigned to the area. 3 In 1997, Mr. Brown was removed from his position based on the charge that he had engaged in "improper personal conduct having an adverse effect on the efficiency of the service." Specifically, the removal notice charged that Mr. Brown had engaged in an adulterous relationship with the wife of a Marine major assigned to a unit supported by Mr. Brown while the major was deployed overseas. 4 Following his removal, Mr. Brown appealed to the Merit Systems Protection Board. An administrative judge conducted a hearing and sustained the removal action. The administrative judge found that the affair had occurred as alleged and that the Corps had established a sufficient nexus between Mr. Brown's misconduct and the efficiency of the service. In particular, the administrative judge found that Mr. Brown's misconduct was antithetical to MWR's mission and that it had adversely affected the Corps' trust and confidence in Mr. Brown's job performance. The administrative judge also concluded that the removal penalty was within the limits of reasonableness. 5 Mr. Brown petitioned the Board for review of the initial decision. The Board denied the petition over a dissent from Vice Chair Slavet, who stated that in her view the Corps had not sustained its burden of showing by a preponderance of evidence that there was a nexus between Mr. Brown's misconduct and the efficiency of the service. II 6 An agency may remove an employee "only for such cause as will promote the efficiency of the service." 5 U.S.C. 7513(a). To satisfy that requirement, the agency must show by preponderant evidence that there is a nexus between the misconduct and the work of the agency, i.e., that the employee's misconduct is likely to have an adverse impact on the agency's performance of its functions. See, e.g., Mings v. Dep't of Justice, 813 F.2d 384, 389-90 (Fed. Cir. 1987). 7 * Because the underlying historical facts relating to Mr. Brown's misconduct are uncontested on appeal, Mr. Brown contends that we should review de novo the Board's decision that the Corps has established a nexus between his conduct and the efficiency of the service. In fact, however, the statutory standard that governs our review of decisions of the Merit Systems Protection Board, 5 U.S.C. 7703(c), requires that we apply deferential review to determinations by the Board as to whether such a nexus has been shown. See Hayes v. Dep't of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984) ("It is not our duty to find nexus but rather to decide, under our statutory scope of review in 5 U.S.C. 7703(c), whether the MSPB affirmance of the agency conclusion on the nexus issue meets the statutory criteria for our affirmance."); see also White v. United States Postal Serv., 768 F.2d 334, 336 (Fed. Cir. 1985) ("A determination of nexus, one factor in a removal decision, must be affirmed on appeal if supported by substantial evidence."). Absent a mistake of law by the Board in selecting the proper test for analyzing the nexus requirement, which is not present here, we must uphold the Board's nexus finding if it is supported by substantial evidence. B 8 Mr. Brown asserts that the evidence was insufficient to show that his misconduct adversely affected either MWR's mission or his ability to perform his job. With respect to the relationship between his misconduct and the department's mission, Mr. Brown argues that his job involved planning and facilitating recreation and entertainment, not "assisting Marines and their spouses on personal or family-related problems," and that his misconduct was irrelevant to the task of providing recreation and entertainment to Marine families. 9 Based on evidence adduced at an evidentiary hearing, the administrative judge found that "the purpose of [Mr. Brown's] position, and the MWR Department, was to provide support for the Marines, and the families of those Marines while they are deployed," that Mr. Brown's adulterous affair involved the wife of a Marine officer assigned to one of the units that Mr. Brown was charged with supporting, and that the affair occurred during a period that the officer was deployed overseas. Those findings provided the basis for the administrative judge's conclusion that Mr. Brown's misconduct "was antithetical to the agency's very mission," i.e., that there was a sufficient nexus between Mr. Brown's misconduct and the mission of the MWR department where he worked. As the administrative judge put it, the Corps "should not have to retain an employee who instead of assisting its deployed Marines, as is the purpose of the MWR and the Program Manager position, has an adulterous affair with the wife of one of those very Marine officers." 10 The administrative judge's findings regarding the mission of the MWR department and Mr. Brown's responsibilities as program manager were supported by the mission statement of MWR and testimony from several persons familiar with the program. The mission statement, taken from the MWR Policy Manual, stated that MWR was responsible, in part, for providing military families with "well-rounded, wholesome athletic, recreation leisure time activities to ensure their mental, physical, and social well-being; and for providing dining, beverage and entertainment services." An MWR operations officer testified that the program manager was responsible for supporting deployed Marines' families in a variety of ways, including arranging recreation and entertainment events, assisting with events sponsored by Marine spouse volunteers, and attending meetings with various groups. A commander's wife, who coordinated a volunteer family-support program staffed by the spouses of Marines, testified that one of the responsibilities of the MWR program manager was to support her program, which involved substantial contact with Marine spouses. 11 The administrative judge's findings that Mr. Brown's misconduct adversely affected MWR's ability to perform its mission and undermined management's trust and confidence in his job performance were based on evidence provided by five witnesses who testified at the hearing. The MWR operations officer testified that Mr. Brown's misconduct had undermined the credibility of MWR among the units it was assigned to support, which was "very damaging to MWR and to the job [Mr. Brown] was hired to do." The base volunteer coordinator testified that she and other Marine spouse volunteers worked with the MWR program manager, that the purpose of her volunteer program was "to promote a healthy community" among the Marine families, and that conduct such as Mr. Brown's would threaten her program by "put[ting] it in a less than favorable light." 12 The Assistant Chief of Staff of the MWR division testified that program managers have regular contact with the wives of deployed marines in their capacity as volunteer workers, and that it was important for deploying Marines to be confident that their families would be well cared for while they were away, a task that was partly the responsibility of MWR program managers. To ignore conduct such as Mr. Brown's, he testified, would undercut the integrity of the organization. He further testified that a commander who learned of Mr. Brown's misconduct would likely come to him and request that Mr. Brown not associate with his personnel in the future, and that he did not think "any commander would allow [him] . . . to put Mr. Brown back down into one of the program manager positions." When asked about the effect of Mr. Brown's conduct on his efficiency in his position, he explained that Mr. Brown would "not be efficient at all. There will practically be no job because I don't believe people will turn to him for the support they would have turned to him [for] had . . . this thing not happened." The family readiness officer for one of the Marine Expeditionary Units (MEUs) stationed at the base testified that it was important for deployed marines to trust the MWR program managers, because "from their point of view, if they're out there, they should think that people back here, particularly males working with their spouses or involved in activities with their spouses are being professional." And a commander of one of the MEUs at the base testified that if commanders bypassed the MWR program manager, it would degrade the efficiency of the MWR operation. 13 In his own testimony, Mr. Brown stated that he circulated among his patrons in order to provide "quality customer service," a function that would be jeopardized if many patrons did not want to interact with him, and that he served "all kinds of patrons" including individual Marines, commanders, retirees, volunteers, and family members. He also admitted that he spent a significant portion of his time meeting with volunteers, and that he had attended some of the functions he planned. Mr. Brown also acknowledged that the units in his area of responsibility were not required to use his services. 14 The witnesses emphasized the special circumstances that made Mr. Brown's misconduct especially troubling in light of the role of MWR in general and the program manager's position in particular. The MWR operations officer testified that the critical factor in this case, in his view, was that the woman with whom Mr. Brown became involved was married to a Marine in one of the units that Mr. Brown was charged with supporting. He testified that the program manager was responsible for supporting the Marine families when the Marines were deployed, and that a commander of the deployed units has "to know that he can trust the people who are back here with these families. His marines and sailors can't do their jobs very well if they know there's someone not very trustworthy back there." He further explained that Mr. Brown's job was to make sure that "the dependents of the members who were deployed were taken care of. And that didn't happen." The case would have been quite different, he testified, if Mr. Brown had not held a position of trust or if he had had his affair with someone who was not the wife of a Marine in one of the units he was charged with supporting. 15 We hold that substantial evidence supports the administrative judge's finding of a nexus between Mr. Brown's misconduct and both the mission of his agency in general and his job responsibilities in particular. To be sure, this case is a difficult one because the misconduct was private in nature and did not affect Mr. Brown's official responsibilities in any direct and obvious way. In many settings, such conduct would not be sufficient to justify removal from a civil service position. As the administrative judge found, however, Mr. Brown's position was not an ordinary one. He held a managerial position in an office that was responsible for providing support to Marine families, including the families of Marines who were deployed overseas. The evidence supported the administrative judge's conclusion that, in light of MWR's responsibilities to the Marine families it served, the trust and confidence of the Marine families and the Marine commanders served by MWR was essential to MWR's proper functioning and to Mr. Brown's performance of his duties within MWR. The evidence further supported the administrative judge's finding that the necessary trust and confidence was undermined by conduct of the sort at issue in this case - initiating an adulterous affair with the wife of a deployed Marine who was a member of a unit that Mr. Brown was directly responsible for supporting. Based on the particular context in which this case arose and the evidence presented to the administrative judge, we cannot agree with Mr. Brown that the administrative judge's nexus finding is unsupported by substantial evidence. 16 In other settings, off-duty misconduct has been held sufficient to justify an employee's removal where that misconduct was found to be inconsistent with the mission of the employing agency. For example, in Allred v. Department of Health & Human Services, 786 F.2d 1128 (Fed. Cir. 1986), this court upheld the removal of an HHS accountant who was convicted of child molestation. The court noted that the mission of HHS is to administer health and social services to various classes of disadvantaged persons, including children, and the agency offered evidence that the victim of Mr. Allred's offense was the kind of person the agency was attempting to help. In that context, where the agency presented evidence that the misconduct was contrary to the agency's mission and that Mr. Allred's supervisors had lost confidence in him, the court held that the agency's evidence was sufficient to justify removal. See 786 F.2d at 1131. In another case, Giles v. United States, 553 F.2d 647, 650 (Ct. Cl. 1977), our predecessor court held that the Internal Revenue Service could fire a revenue officer for failing to file timely federal and state income tax returns. Testimony that such conduct "would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS," was sufficient, the court explained, to support the employee's removal. 553 F.2d at 650. Similarly, the private use of marijuana was held sufficient to justify the removal of a Customs Inspector, based on the mission of the Customs Service, which is in part to interdict the importation of illegal drugs. See Masino v. United States, 589 F.2d 1048, 1056 (Ct. Cl. 1978). And an employee of the Department of Housing and Urban Development was held to have been validly removed based on his ownership of deteriorated rental properties on the ground that his conduct undermined public confidence in the agency. See Wild v. United States Dep't of Housing & Urban Dev., 692 F.2d 1129, 1132-34 (7th Cir. 1982). Although Mr. Brown's case is distinguishable on its facts from each of the cited cases, the principle applied in each is the same: off-duty conduct that is inconsistent with the agency's mission and that undermines confidence in the employee can be sufficient to justify the employee's removal. C 17 Mr. Brown makes a number of arguments about why the evidence of nexus in this case was insufficient. None of the arguments, however, persuades us that the Board's finding of nexus must be overturned. 18 First, Mr. Brown argues that he had known the woman with whom he had the affair since before becoming the program manager of MWR. Thus, he contends, he did not use his position in MWR to enter into an adulterous affair with a Marine wife. Nonetheless, the affair occurred while Mr. Brown was serving as the MWR program manager and while the woman's husband--a member of a unit Mr. Brown served--was deployed overseas. To be sure, the case for nexus would have been stronger if Mr. Brown had directly used his position to obtain access to a Marine wife with whom he then started an affair. But the fact that the relationship did not develop as a direct result of Mr. Brown's activities as program manager of MWR does not affect the loss of confidence and trust in him as a person responsible for the morale and welfare of Marine families, nor does it eliminate the concern over the inconsistency between his conduct and the mission of his agency. 19 Mr. Brown makes the related argument that in light of the unusual circumstances surrounding his affair, he is no more likely than anyone else to have an affair in the future with the spouse of a Marine he is charged with supporting. But there is no requirement that the agency prove that particular misconduct is likely to recur. See Yacovone v. Bolger, 645 F.2d 1028, 1033 (D.C. Cir. 1981). In any event, the evidence established that Mr. Brown's misconduct violated the mores of the Marine community, and it is not irrational to conclude from that fact alone that those mores have less coercive power over him than over others. In light of the fact that Mr. Brown's position involved more than minimal contact with Marine spouses, it would not be unreasonable to conclude that Mr. Brown posed a greater-than-average risk of future, job-related misconduct, and that such misconduct could again cause problems for MWR. 20 Second, Mr. Brown points out that the Corps failed to elicit specific testimony from Mr. Brown's patrons that they would no longer use his services. Nonetheless, we cannot say that the administrative judge's finding to that effect was unsupported by substantial evidence. The deciding official, who oversaw MWR, testified about his prior experience as a unit commander. His testimony that unit commanders would not want their units dealing with Mr. Brown, which was unrebutted by any evidence or cross-examination from Mr. Brown, reasonably supported the administrative judge's finding. In addition, the MEU commander testified that conduct such as Mr. Brown's would leave a "bad taste in everyone's mouth," and that a commander could bypass the services of a program manager, which would degrade efficiency. The commander's testimony was not inconsistent with that of the deciding official, which was sufficient on the issue. 21 Third, Mr. Brown argues that his job performance was not affected by his off-duty misconduct. Management, however, was concerned not about a deterioration in Mr. Brown's actual performance, but about a loss of confidence in MWR and in Mr. Brown due to his patrons' knowledge of the affair. As this court explained in the Allred case, "where an employee's conduct is contrary to the agency's mission, the agency need not present proof of a direct effect on the employee's job performance." 786 F.2d at 1131. 22 Finally, Mr. Brown complains that he was held to a military, rather than civilian, standard of conduct. In support, he cites the testimony of the deciding official, who stated that "civilian employee[s], in my estimation, are expected to uphold really the same standards because they are people standards, they're human standards." 23 Contrary to Mr. Brown's suggestion, the mores of the group he served are not irrelevant to his job performance and the expectations fairly placed upon him. Conduct that might be overlooked in some settings can be the cause for removal in other settings in which the conduct is perceived as more clearly inappropriate or contrary to the mission of the employing agency, such as in the Allred, Masino, Giles, and Wild cases cited earlier. In each of those cases, removal was based in large part on the nature of the particular agency involved; conduct that justified removal in those contexts might not have justified removal in ordinary settings. Mr. Brown's job responsibilities were to serve the Marine community, and his effectiveness depended at least to some extent on his compliance with certain basic standards of conduct shared by that community. Moreover, he chose to serve the Marine community, and because of his long membership in and association with that community, he was well aware of the standards of that community. Because his job was to serve the Marine community, it is not a sufficient answer for him simply to say that he was a civilian employee and therefore the standards of conduct of the Marine community had no applicability to him. 24 In various of the arguments he makes, Mr. Brown relies on the dissenting opinion of Board Vice-Chair Slavet. While we acknowledge that there is force to many of the points made in Vice-Chair Slavet's opinion, it is important to note that our posture in reviewing the Board's decision is quite different from that of the Board in making it. The task of the Board is to decide whether the agency met the burden of proving a nexus by a preponderance of the evidence. See 5 U.S.C. 7701(c)(1)(B). Our task, by contrast, is to determine whether the Board's finding is supported by substantial evidence, which is a considerably less exacting standard. See, e.g., Schnakenberg v. United States, 219 Ct. Cl. 697, 698 n.1 (1979) ("substantial evidence can support either of two contrary findings, but only one finding can have a preponderance"). Regardless of whether we would have resolved this case as the Board did if we had sat as the finders of fact, we are unable to say that substantial evidence does not support the finding made by the Board. III 25 Mr. Brown contends that even if the government proved a sufficient nexus in this case, the penalty of removal was unjustified. In upholding the penalty, the administrative judge noted that the deciding official had considered the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). The administrative judge concluded that the deciding official had considered the appropriate factors and had not reached an unreasonable conclusion as to the choice of penalty in light of those factors. 26 Mr. Brown's principal contention in challenging the penalty is that he never received notice that his civilian employment could be affected by an adulterous affair with a Marine spouse. In that regard, the deciding official found that Mr. Brown's status as a major in the reserves provided sufficient notice; Mr. Brown thinks that status was insufficient to warn him of the consequences for his civilian job. 27 The lack of formal notice concerning the adverse effects of an adulterous affair with the spouse of a Marine does not rise to the level of a significant mitigating factor that MWR and the Board failed to consider. Mr. Brown's military background and position within a military community should have put him on notice that the affair could cause serious problems within the community. As this court noted in Brown v. Department of Transportation, 735 F.2d 543, 548 (Fed. Cir. 1984), even if MWR did not provide an express warning to Mr. Brown regarding the consequences of an adulterous affair with a Marine spouse, his "common sense should have forewarned him." 28 The same analysis pertains to Mr. Brown's related contention that the penalty of removal was inappropriate because of the "unique" or "exceptional" nature of this case. Cases involving off-duty misconduct often involve unusual facts that arise in a specific context, and the particular circumstances and context are often sufficiently distinctive that there are no closely analogous cases in which similar action has been taken. The fact that there may be no direct precedent for the action taken in a particular case does not, however, prohibit the agency from taking adverse action if it is consistent with general principles of federal employment law. We are satisfied that the agency's action in this case did not depart from those principles so as to render the penalty invalid. 29 In reviewing the propriety of a penalty, this court necessarily accords considerable discretion to the agency. We will not overturn a "penalty within the agency's discretion unless the severity of the agency's action appears totally unwarranted in light of all the factors." Mings, 813 F.2d at 390. Given the totality of the circumstances of this case, Mr. Brown has not persuaded us that his removal was totally unwarranted, and we therefore uphold the agency's action. 30 Each party shall bear its own costs for this appeal. 31 AFFIRMED. 32 LINN, Circuit Judge, dissenting. 33 I respectfully dissent from the majority opinion because there is no showing that Brown's private consensual conduct, improper though it was, had an adverse impact on the efficiency of the service. The Board, and the majority opinion, has stretched the nexus requirement so thin that Brown has become subject to the moral judgments of his employer. As one of our sister circuits has repeatedly pointed out, that is an improper role for the government. See Norton v. Macy, 417 F.2d 1161, 1165 (D.C. Cir. 1969) ("[T]he notion that it could be an appropriate function for the federal bureaucracy to enforce the majority's conventional codes of conduct in the private lives of its employees is at war with elementary concepts of liberty, privacy, and diversity."); Doe v. Hampton, 566 F.2d 265, 273 n.20 (D.C. Cir. 1977) ("The nexus requirement . . . serves to minimize unjustified governmental intrusions into the private activities of federal employees."); Gloster v. General Servs. Admin., 720 F.2d 700, 703 (D.C. Cir. 1983) ("The nexus requirement is particularly strict in cases involving non-work-related misconduct."). BACKGROUND 34 Preliminarily, I wish to clarify two points in the majority's presentation of the factual background of this case. First, in my view the misconduct in this case has not been clearly framed. Brown's relationship with a married woman predated his position at Camp Lejeune and had no causal connection with his job. He was a neighbor of the woman and met her before he started working at Camp Lejeune. There was no evidence in the record that his contacts with the woman occurred at, were facilitated in any way by, or were related to any events or activities sponsored by the MWR Department. Even Colonel Stewart, the official who removed Brown, stated that there was no allegation that Brown used his position to further his misconduct. 35 Second, the impact of Brown's misconduct on his job has not been clearly framed. The record reveals no evidence at all of any negative impact. The record indicates that Brown received the highest possible performance appraisal, and a Certificate of Commendation, for the period covering virtually the entire duration of his misconduct. Even Colonel Helland, testifying against Brown at the Board's evidentiary hearing, could not criticize Brown's support of the Colonel's unit. Colonel Helland stated that Brown's performance was adequate and that the Colonel had no complaints. 36 With that framework in mind, I now address the Board's finding, which the majority affirms, that Brown's misconduct somehow had adversely affected the efficiency of the service. As all parties recognize, an employee can only be removed "for such cause as will promote the efficiency of the service." 5 U.S.C. 7513(a) (1994); Crofoot v. United States Gov't Printing Office, 761 F.2d 661, 664 (Fed. Cir. 1985); see also Pararas-Carayannis v. Department of Commerce, 9 F.3d 955, 957 (Fed. Cir. 1993). "This requires that there be a nexus between the employee's misconduct and the efficiency of the service." Sanders v. United States Postal Serv., 801 F.2d 1328, 1332 (Fed. Cir. 1986); see also Pararas-Carayannis, 9 F.3d at 957. The Board summarized the ways in which such a nexus can be shown as consisting of: (1) existing egregious circumstances that give rise to a rebuttable presumption of nexus based on the nature and gravity of the misconduct; (2) preponderant evidence showing that the misconduct affects the employee's or his co-worker's job performance; (3) preponderant evidence showing that the misconduct affects management's trust and confidence in the employee's job performance; and (4) preponderant evidence showing that the misconduct interfered with or adversely affected the agency's mission. See Brown v. Department of the Navy, No. DC-0752-97-1018-I-1, slip op. at 7 (MSPB Jan. 2, 1998) (the AJ's opinion) ("Board Opinion"). The Board did not find that Brown's misconduct had affected his job performance. The Board relied only on the last two of these four possible avenues to a nexus, and I address below the lack of substantial evidence to support each. ANALYSIS 1. Trust and Confidence 37 The AJ found that "the agency has . . . proven nexus by showing by preponderant evidence that [Brown's] misconduct affected management's trust and confidence in his job performance." Board Opinion, slip op. at 11. As the AJ correctly pointed out, and our own case law requires, management's loss of trust and confidence must be directly related to the employee's job performance. See Pararas-Carayannis, 9 F.3d at 956-58 (Employee used both government time and money to launder prostitution proceeds.); Sanders, 801 F.2d at 1330 (Employee used agency premises and on-duty time, on two occasions, to engage in the sale of cocaine.); Brown v. Department of Transp., 735 F.2d 543, 545, 548 (Fed. Cir. 1984) (Air traffic controller supervisor spoke at an off-duty rally of striking air traffic controllers, thus implicating his own loyalty to management.). 38 However, all of the evidence adduced at the Board's hearing was conjectural, speculative, or unrelated to Brown's actual job responsibilities. Bear in mind that Brown's principal role was to organize activities for Marines in the units he supported; Brown did not occupy a position, such as a counselor or therapist, that would require that the Marines he supported repose confidence and trust in him. Colonel Helland, the commanding officer of an expeditionary marine unit, stated that Brown's job was to be a "facilitator," making it easier to obtain resources and facilities, and Mr. Mayberry, a family readiness officer, described Brown's job as "a party and recreation event planner." 39 Representative of this evidence is the testimony of Colonel Stewart, Assistant Chief of Staff of the MWR Department, commonly known as the head of the MWR. Colonel Stewart speculated in his testimony, emphasis added, that Brown "will not be efficient at all" and that he did not "believe that people will turn to him for [ ] support." But Colonel Stewart did not connect this perceived blackballing of Brown by others to Brown's actual job responsibilities of planning events. Mr. Blare, Director of the Operations Division of the MWR Department and Operations Officer of the MWR Department, also testified in a conclusory fashion. He stated that anything short of removal would not solve the problem, but failed to identify what aspect of Brown's job performance was in question. Mrs. Leferbre, a key volunteer coordinator and the wife of a commanding officer, stated that the wives of deployed Marines may be vulnerable. She also expressed her opinion that Brown's indiscretion would threaten the reputation of her program, the key volunteer program. However, she did not provide any evidence that Brown's job performance had been impaired or how it would be impaired because of his indiscretion. Colonel Helland testified to the generality that family problems can have considerable impact on a unit's perspective, but failed to provide any evidence that Brown's job performance had been compromised or might be impaired because of his particular misconduct. Mr. Mayberry opined generally that the Marines Brown served needed to be able to trust Brown, but Mr. Mayberry offered no evidence that any Marines had lost trust or that Brown's actual job performance would be impaired because of Brown's indiscretion. The testimony identified by the majority opinion fares no better. See ante, at 1359-60(majority opinion) (repeatedly using the conditional "would"). In my opinion, there is not substantial evidence of record showing that management's loss of confidence is related to Brown's actual job performance. 40 Rather than requiring a connection to an employee's job performance, the majority opinion risks being viewed as sanctioning the removal of an employee simply because of a difference in values between that employee and his superiors. Colonel Stewart testified to this effect: "I can't imagine a marine commander wanting to deal with somebody who has . . . a track record of this kind of thing." Brown's superiors, including his immediate boss and two Marine Colonels, essentially testified that they disapproved of Brown's behavior. If this evidence is enough to warrant removal, then no employee is safe from the threat of removal. Mr. Blare testified that it would have been different if Brown had held some other position, specifically, a janitor, in the MWR Department. However, Mr. Blare fails to provide any connection between Brown's personal indiscretion and his actual job performance, without which a charge of loss of trust and confidence in that performance rings hollow. Again, the only evidence of Brown's performance is positive. 41 The situation might be different if the record contained testimony from those Marines and their families who were not in a position of authority over Brown and whom Brown was charged with supporting. See Brown v. Department of the Navy, No. DC-0752-97-1018-I-1, slip op. at 7 (MSPB Aug. 10, 1999) (Slavet, Vice Chair, dissenting) (raising the same issue). The AJ recognized the utility of such evidence, asserting that Brown had "lost his credibility, integrity and ability to function with [the Marines and their families] as a result of his misconduct, and that this directly interfered with his ability to accomplish his assigned mission." Board Opinion, slip op. at 9. However, this finding is totally unsupported by any testimony from those "Marines and their families." The Board and the majority opinions include only testimony, such as that discussed above, that is premised on the surmised disapproval of the Marines, or the families of the Marines, in the units supported by Brown. 42 Testimony from these supposedly disapproving individuals would have served to establish the necessary connection with Brown's job performance. These individuals might have testified that they no longer felt comfortable attending the functions that Brown organized or having Brown attend those functions as part of his assigned duties. The deployed Marines might have testified that they no longer felt comfortable having their families attend those functions while they were deployed. Key volunteers that were also the wives of Marines that Brown was charged with supporting might have testified that they no longer felt comfortable working with Brown in organizing events. Such testimony could have demonstrated that Brown's job performance and effectiveness would indeed have been impaired, in that he would have been unable to attend the events he planned, to get others to attend them, or even to plan them in the first place. Many possibilities were open to the Government to establish a connection between Brown's personal conduct and his actual job responsibilities and performance, but the Government did not avail itself of them. 43 Such testimony would also have served as a hedge against an abuse of power by Brown's superiors. Before the Government "enforce[s] [its] conventional codes of conduct in the private lives of its employees," Norton, 417 F.2d at 1165, it has the responsibility to establish "the necessary connection between the employee's off duty misconduct and the employee's job-related responsibilities," White v. United States Postal Serv., 768 F.2d 334, 336 (Fed. Cir. 1985). 2. Agency Mission 44 The AJ also found "that the agency has proven nexus . . . by showing by a preponderance of the evidence . . . that [Brown's] misconduct . . . interfered with and adversely affected the agency's mission." Board Opinion, slip op. at 8. As this court has recognized, such a finding provides a nexus without a direct showing of an impact on the employee's job performance. See Allred v. Department of Health and Human Servs., 786 F.2d 1128, 1131 (Fed. Cir. 1986) ("Courts have repeatedly held that where an employee's misconduct is contrary to the agency's mission, the agency need not present proof of a direct effect [sic - affect] on the employee's job performance.") (citing Masino v. United States, 589 F.2d 1048 (Ct. Cl. 1978) and Giles v. United States, 553 F.2d 647 (Ct. Cl. 1977)); see also Masino, 589 F.2d at 1056; Giles, 553 F.2d at 650. 45 However, the Board does not discuss the mission of the agency, which in this case is the Department of the Navy. See Board Opinion, slip op. at 1. Instead, the Board, and the majority opinion, focus on the mission of the MWR Department and the purpose of Brown's position: 46 The agency has established . . . that the purpose of the appellant's position, and the MWR Department, was to provide support for the Marines, and the families of those Marines while they are deployed. Since Major 'B' was a Marine Officer who was assigned to one of the very MEU's [sic - MEUs] that the MWR Department, and the appellant's position, existed to support, and that the affair took place during the time Major 'B' was deployed overseas with his unit, I find that the agency has sufficiently established that that [sic] the appellant's misconduct was antithetical to the agency's very mission. 47 Board Opinion, slip op. at 10-11 (emphasis added). In measuring employee conduct, it is the agency's mission at large that must be considered and not merely a division or lesser group within the agency. I have found no case from this, or any other, court, in which the mission of a unit smaller than the agency was considered. See Allred, 786 F.2d at 1129 (focusing on the mission of the Department of Health and Human Services); Stump v. Federal Aviation Admin., 761 F.2d 680, 681 (Fed. Cir. 1985) (focusing on the mission of the Federal Aviation Administration); Giles, 553 F.2d at 650 (focusing on the mission of the Internal Revenue Service); Masino, 589 F.2d at 1050, 1055 (focusing on the mission of the United States Customs Service). Further, the cases consistently focus on: (1) broad purposes, as opposed to more narrower purposes of a division or other lesser group within the agency; and (2) the public's perception, which is not likely to be concerned with or even aware of the divisions or lesser groups within an agency. See Allred, 786 F.2d at 1131 (focusing on whether the misconduct might "undermine public confidence in the agency"); Stump, 761 F.2d at 681-82 (focusing on the broad purpose of the FAA and public confidence in that agency); see also Borsari v. Federal Aviation Admin., 609 F.2d 106, 110 (2nd Cir.) (addressing "the goals of the FAA," the agency, to establish a mission connection), cert. denied, 464 U.S. 833 (1983); Wild v. United States Dep't of Hous. and Urban Dev., 692 F.2d 1129, 1133 (7th Cir. 1982) (listing numerous examples of, and focusing exclusively on, broad purposes of various "agencies"). This would be a different case if the Board's decision and the evidence of record had established that Brown's misconduct had implicated this country's national defense, arguably the mission of the Department of the Navy. But the mission of the Navy was not discussed and I must conclude that the Board committed legal error by finding a nexus on this ground. 48 By focusing on the MWR Department, and then even on Brown's particular job, the Board and the majority are simply restating their belief that Brown's job performance would be impacted. However, again, there is no evidence showing any connection between Brown's misconduct and his job performance. 3. Off-Duty Conduct 49 The majority opinion cites the three cases of Masino, Giles, and Allred, all of which are binding on this court, for the proposition that off-duty conduct can give rise to a nexus. First, having cited Brown v. Department of Transp. earlier, I certainly do not quarrel with the position that off-duty conduct can give rise to a nexus. However, neither that case, nor any of the three raised by the majority opinion, reverses the long-standing rule that a "trust and confidence" nexus must contain a connection to the employee's actual job responsibilities and performance. Indeed, Brown v. Department of Transp. supports this rule, and the other three cases rely principally on the egregious nature of the misconduct or its impact on the agency's mission to establish a nexus. 50 The court in Brown v. Department of Transp. first examined the specific requirements of Brown's supervisory position and observed that "[c]ooperation, loyalty, and trust are particularly important among those managing the operation of a complex, sophisticated transportation system where the lives of hundred of innocent members of the public may . . . depend upon split-second judgment. Such need for trust was even more acute at the moment Brown uttered his remarks . . . ." Id. at 547. The court later concluded that it was "common sense" that Brown's actions "could easily turn into a situation where his loyalty to management could be cast in doubt--as indeed it was." Id. at 548. Thus, management's loss of trust and confidence in Brown was directly connected to his job performance. 51 In Masino, the Court of Claims upheld the removal of a Customs Inspector for the off-duty smoking and transporting of marijuana. The Masino court upheld the nexus finding based principally on the egregious nature of the conduct, a ground specifically not found in the present case. See Masino v. United States, 589 F.2d 1048, 1056, 1057 (Ct. Cl. 1978) (stating in its analysis that "the transportation and use of the very contraband which a law enforcement officer is sworn to interdict, is clearly misconduct which 'speaks for itself,'" and summarizing in its conclusion that "[t]he misconduct speaks for itself."); Board Opinion, slip op. at 8 ("I do not find that [Brown's] misconduct in this instance was so egregious that 'it speaks for itself,' and that a 'presumption of nexus' is applicable."). 52 Further, although the Masino court presented a subsidiary justification for finding a nexus, that justification is best characterized as being based on an adverse impact with the mission of the United States Custom Service, the agency in Masino. The Masino court stated that "Masino . . . was specifically charged with enforcing the laws concerning contraband, including marijuana. Since possession and/or use of marijuana is a violation of federal criminal statues, he was clearly not conducting himself in a manner to be expected of a Government employee engaged in law enforcement duties." Masino, 589 F.2d at 1056. The Masino court thus contrasted the broad purpose of "enforcing the laws concerning contraband," common to all Customs Inspectors, with Masino's obvious contravention of those same laws. Id. The implication is clear that the mission of the United States Customs Service was adversely impacted by Masino's behavior. See Allred, 786 F.2d at 1131 (identifying Masino as a case where the nexus was based on an adverse impact on the mission of the agency). 53 In Giles, the Court of Claims upheld the removal of an Internal Revenue Service ("IRS") revenue officer for his own "willful, flagrant violation of tax laws" in not filing or not timely filing his state and federal tax returns over a three year period. Giles, 553 F.2d at 648, 649. The Giles court based its nexus finding on the impact that Giles' behavior had on the overall effectiveness and credibility of the agency, the IRS, stating that: 54 If . . . taxpayers are encouraged to believe they can unilaterally determine whether or not to file . . . , the need for investigations increases and the efficiency of the Service is impaired. [Giles'] example undercuts the Service's efforts to encourage voluntary compliance and, if condoned, could impair the credibility of IRS with tax officers and the public generally. 55 Id. at 650; see also Allred, 786 F.2d at 1131 (identifying Giles as a case where the nexus was based on an adverse impact on the mission of the agency). Thus, the Giles court upheld a finding of nexus based on an impact to the IRS' mission, not to Giles' job performance. 56 In Allred, this court upheld the removal of an employee of the Department of Health and Human Services ("HHS") based on his conviction for child molestation. See Allred, 786 F.2d at 1129-30. The misconduct was considered so egregious that a nexus was presumed, thus no connection to Allred's job performance needed to be shown. See id. at 1131. 57 The egregiousness of the misconduct also led the Allred court to uphold the finding of nexus on two secondary grounds, finding both an adverse impact on the mission of the agency, HHS, and a loss of management's trust and confidence in Allred's job performance. However, the Allred court tied the loss of trust and confidence to Allred's specific duties, which included "represent[ing] the agency before state and local governments, universities, hospitals, and various other grantees in preparing cost allocation plans to ensure the plans conformed with the agency's regulations." Id. at 1129. The Allred court found that management had lost trust and confidence in Allred's ability to represent HHS with these groups that were outside of the agency. See id. at 1131. Although the Allred court does not appear to have required any testimony from these clients of Allred's, as I would require in the present case, the egregiousness of Allred's misconduct, and the attending presumption of nexus, precluded the need for doing so. CONCLUSION 58 Although I cannot condone Brown's conduct, I also cannot concur in the majority opinion. It grants virtually unbridled discretion to management, allowing it to remove an employee based on disapproval of that employee's off-duty behavior that does not implicate either job performance or the mission of the agency, in this case the Navy. Accordingly, I respectfully dissent and would reverse the decision of the Board.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7217 TERRY RAMMOTT WALKER, Plaintiff - Appellant, v. W. ANDREW REESE, Doctor, Defendant – Appellee, and DIANA PURKS, Medical Coordinator; DR. KREK, Psychologist; MAJOR ELLIOT, Chief Security, Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:06-cv-00248-RAJ-JEB) Submitted: March 9, 2009 Decided: March 20, 2009 Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Terry Rammott Walker, Appellant Pro Se. John David McChesney, RAWLS & MCNELIS, PC, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terry Rammott Walker appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Walker v. Purks, No. 2:06-cv-00248-RAJ-JEB (E.D. Va. June 16, 2008). 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	{ "pile_set_name": "FreeLaw" }
10 N.Y.2d 966 (1961) In the Matter of Mid-Island Shopping Plaza, Inc., Respondent, v. Emil H. Podeyn et al., Constituting the Board of Assessors of the County of Nassau, Appellants. Court of Appeals of the State of New York. Argued October 18, 1961. Decided November 30, 1961. J. Oakey McKnight, County Attorney (James F. Niehoff of counsel), for appellants. Henry Root Stern, Jr., for respondent. Concur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER. Order affirmed, without costs. In view of the method adopted and acquiesced in by the parties in trying this proceeding, we neither reach nor consider the construction of subdivision 3 of section 720 of the Real Property Tax Law (or its predecessor Tax Law, § 293). No opinion.	{ "pile_set_name": "FreeLaw" }
108 F.2d 961 (1939) COMMISSIONER OF INTERNAL REVENUE v. ALLEN. No. 7050. Circuit Court of Appeals, Third Circuit. December 22, 1939. 962 Edward H. Green, of New York City, Lawrence A. Baker, of Washington, D. C., and John F. Dooling, Jr., of New York City (Sullivan & Cromwell, of New York City, of counsel), for petitioner. Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst. to Atty. Gen., and Richard H. Demuth, Sp. Atty., of Washington, D. C., for respondent. Before BIDDLE, JONES, and BUFFINGTON, Circuit Judges. JONES, Circuit Judge. The question in this case is whether a minor's transfer of property, without valuable consideration, in trust for others, made prior to the effective date of the Gift Tax Act of 1932, is so inchoate and imperfect, because of the minor's legal right to disaffirm during minority and for a reasonable period thereafter, as to render the transfer not taxable as a gift until the year in which the minor attained majority, having failed to disaffirm. The Board of Tax Appeals, agreeing with the taxpayer's contention, held that the transfer was complete as an executed gift at the time the trust was created; that the minor settlor's right to disaffirm was not the vested power "to revest in the donor title to such property" contemplated by Section 501(c) of the Revenue Act of 1932, 26 U.S.C.A. § 550 note; and that the gift was, therefore, not subject to tax. It is that decision which we now have for review on the petition of the Commissioner of Internal Revenue. The material facts in the case are as follows: On June 4, 1932, Dorothy Anne Dillon (now Dorothy A. D. Allen, the respondent), a resident of New Jersey, made a transfer in trust by executing and delivering an indenture transferring the securities specified therein, and in accordance with its terms, to the trustees named in the indenture. On the same date, the trustees, consisting of the settlor's father, her brother and a certain bank, qualified to act as trustee in New Jersey, accepted the trust. At the time of making the trust, the settlor was a minor and did not attain her majority until October 9, 1933[1]. By the terms of the indenture the entire net income of the trust estate was made payable to the settlor's father for life, then to her mother for life, and then to her brother for life, with remainders over in the income, for a time, and, later, in the corpus to the children and the issue of any deceased children of the brother, and, failing such, then to the children and the issue of any deceased children of the settlor. The indenture also provides that the trust shall be governed in accordance with the laws of New Jersey. The transfer appears to be absolute on the face of the indenture which contains no express reservation of power, on the part of the settlor, to revoke or amend the trust. Under the law of New Jersey, as elsewhere generally in this country, a minor has the legal right to avoid his contracts and conveyances. Such right endures for a reasonable time after the minor has reached his majority. What constitutes a reasonable time after majority for an act of disaffirmance, being ordinarily a question of fact, usually depends on the circumstances of the particular case. For a recent tabulation of the rules in various States, see Spencer v. Lyman Falls Power Co., 109 Vt. 294, 196 A. 276, 278. The Court of Chancery of New Jersey has held that the time within which the acts of a minor may be disaffirmed after majority may extend for the periods prescribed by the New Jersey statute of limitations for actions real and actions personal, respectively, although the right to disaffirm may be lost earlier by conduct on the part of the emancipated minor amounting to ratification or constituting an estoppel to disaffirmance. Mott v. Iossa, 119 N.J.Eq. 185, 192, 181 A. 689. Unquestionably, the respondent in the instant case, by disaffirming, could have avoided her transfer of June 4, 1932, and thereby have revested 963 in herself title to the trust property, at any time until she attained her majority on October 9, 1933, and for some period of time thereafter. The Commissioner, deeming that the transfer became consummate as a gift on October 9, 1933, when the settlor attained her majority and failed to disaffirm, and that it was therefore taxable under Section 501[2] of the Revenue Act of 1932, requested the respondent to file a gift tax return for 1933 reflecting the transfer. This, the respondent did, at the same time denying any liability for tax on account of the gift. The gift tax provisions of the Revenue Act of 1932 did not become effective until June 6, 1932, two days after the execution and delivery of the respondent's trust deed. The decision in Burnet v. Guggenheim, 288 U.S. 280, 53 S.Ct. 369, 370, 77 L.Ed. 748, controls this case. What was said there, with respect to the unreality and mere formality of a "gift" where a power to revoke is vested in the donor, applies with equal force here. Throughout the donor's minority, her transfer remained "inchoate and imperfect". It was not until she attained her majority and failed to disaffirm that her undeniable and absolute power to nullify the transfer and to revest in herself title to the trust property terminated. When that occurred, the gift became consummate and, at the same time, subject to tax under Section 501(a) of the Revenue Act of 1932. Because the power to revoke, in the Guggenheim case, was expressly reserved to the settlor by his instruments of grant, while, in the present case, it was reposed by law, the respondent seeks to distinguish the two cases on the difference in the manner in which the powers respectively arose. No such distinction is anywhere suggested in the Guggenheim case; nor are we able to see how it could be validly asserted. The difference in the inception of the powers is merely one of immaterial form and not of substance. The thing that renders the giving in the first instance less than a gift is the power in the donor to nullify his grant. The exercise of the power is equally efficacious in either case in bringing about the defeat of what once had "the quality of a gift", regardless of how the power happened to attend. And, with the extinguishment or termination of the power, however created, comes the "change of legal rights and * * * shifting of economic benefits" (Burnet v. Guggenheim, supra)[3], which Congress taxed by Section 501(a) of the Revenue Act of 1932 as a transfer by gift effected at that time. In addition to Section 501(a), which imposes the tax "upon the transfer * * * of property by gift", Subsection (c) of the same Section provides, in material part, that "The tax shall not apply to a transfer of property in trust where the power to revest in the donor title to such property is vested in the donor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such property or the income therefrom, but the relinquishment or termination of such power (other than by the donor's death) shall be considered to be a 964 transfer by the donor by gift of the property subject to such power", etc. (Italics supplied.) The meaning of this provision is free from doubt. Yet, the respondent argues that Subsection (c) was intended to embrace only instances where the power vested in the donor to revest in himself title to the trust property is expressly reserved to him by his instrument of transfer. Again, no occasion for the distinction is indicated by the plain and understandable words of the statute. Indeed, it would be difficult to suggest language more expressive of a legislative intent to cover all instances where there was a power in the donor to revest in himself title to the transferred property, regardless of the form or manner by which the power came into being. To conclude that Section 501 (c) does not embrace a power to revoke, imposed by law, would require that we read into the statute something that is not there and place upon it a limitation which could not be justified on any reasonable ground. However, what Subsection (c) of Section 501 plainly expresses, and therefore means, neither adds to nor takes away from the scope of the tax imposed by Subsection (a). The provision in Subsection (c) is but declaratory of the law applicable to a determination of when a gift becomes consummate. This was pointed out clearly in Burnet v. Guggenheim, supra. There the question arose under the Gift Tax Act of 1924. The taxing clause in the 1924 Revenue Act was substantially carried forward as Section 501(a) of the Act of 1932. The 1924 Gift Tax Act did not, however, contain anything similar to Section 501(c) of the later Act. But a Treasury Regulation (Regulations 67, Art. 1), in substance the same as the provision in Section 501(c) of the Revenue Act of 1932, had been adopted and promulgated by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury prior to the termination of the donor's power to revoke in the Guggenheim case. By the time the latter case came before the Supreme Court, the Revenue Act of 1932 had been enacted, incorporating as Section 501(c) what had been the regulation under the 1924 Revenue Act. This later statutory provision was called to the attention of the Court in the Guggenheim case in support of the asserted validity of the regulation under the Revenue Act of 1924. With respect to both, namely, the prior regulation under the Revenue Act of 1924 and its statutory counterpart (Section 501(c) of the Revenue Act of 1932), Justice Cardozo, speaking for the Supreme Court, said, "We think the regulation, and the later statute continuing it, are declaratory of the law which Congress meant to establish in 1924". Congress, having perceived from the opinion in the Guggenheim case that what Subsection (c) of Section 501 of the Revenue Act of 1932 contained was otherwise "a fundamental part of the law",[4] thereupon expressly repealed that Subsection.[5] In the recent case of Rasquin v. Humphreys, 60 S.Ct. 60, 62, 84 L. Ed. ___, Mr. Justice Stone said, "This" (referring to Sec. 501(c) of the Act of 1932) "was repealed by § 511 of the Act of 1934, 48 Stat. 680, 26 U.S.C.A. § 550, because Burnet v. Guggenheim, 288 U.S. 280, 53 S.Ct. 369, 77 L.Ed. 748, had declared that such was the law without specific legislation". The effect of the decision in the Guggenheim case, supra, was to leave Section 501(a) of the Revenue Act of 1932 (the taxing clause) unaffected by Section 501(c) of the same Act, and Section 501(a), as we have indicated, is the same, in all material respects, as Sec. 319 of the Revenue Act of 1924[6] which was before the court in the Guggenheim case. As the construction placed by the Supreme Court (see Burnet v. Guggenheim, supra) on Sec. 319 of the Gift Tax Act of 1924 is sufficiently broad to include the extinguishment of all powers to revoke, regardless of how they arise or are created, Section 501 of the Revenue Act of 1932 correspondingly embraces all powers in donors to revest in themselves title to the transferred property, whether the power, so to do, is expressly reserved to the donor by his deed of trust or is imposed by law. In arguing for a distinction, under the Gift Tax Act of 1932, between a power to revoke expressly reserved and one imposed by law, the respondent cites two cases. Helvering v. Helmholz, 296 U.S. 965 93, 56 S.Ct. 68, 80 L.Ed. 76, and White v. Poor, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. 80. Neither case is authority for the distinction for which the respondent contends. Each of the cases cited questioned the right of the Commissioner of Internal Revenue to include in a decedent's gross estate, for estate tax purposes, under Section 302(d) of the Revenue Act of 1926[7], property which the decedent had transferred in trust with certain provision for the termination of the trust. In each instance, the Commissioner contended that the settlor, at death, had power in conjunction with other persons to "alter, amend or revoke" the trust and that, by reason thereof, the trust property was properly includable in the decedent's gross estate. In the Helmholz case the settlor was one of the beneficiaries to whom the power was given by the trust indenture to terminate the trust and return the property to the settlor if all of the beneficiaries agreed in writing that that should be done. No power to revoke the transfer or change the beneficiaries was reserved to the settlor as such. Her only power in connection with a possible termination of the trust and a return of the property to herself came to her as one of the beneficiaries and not as the settlor. Hence, the case was not within the intent of the statute. Likewise, in the Poor case, the trust indenture contained no reservation of power in the settlor either to revoke or modify the transfer, but it did provide that the trust might be terminated by unanimous action of the trustees, of whom the settlor was one at the time of her death through appointment by the other trustees with the approval of all of the beneficiaries, as provided and required by the trust indenture. The termination of the trust could come about only by trustees' action and not through the exercise of a power reserved to the settlor, as such, acting either alone or in conjunction with others. Consequently, this case also was not within the intent of the statute. The respondent misinterprets the meaning of the Helmholz case where the court said that the Government's "argument overlooks the essential difference between a power to revoke, alter, or amend, and a condition which the law imposes". [296 U.S. 93, 56 S.Ct. 70, 80 L.Ed. 76] What the court was there pointing out was that the power in the beneficiaries, as such, to revoke a trust was a legal right[8] which they also enjoyed without any grant in the premises from the settlor. The power, therefore, could not be one reserved to the settlor, as such, within the contemplation of Sec. 302(d) of the Estate Tax Act of 1926. Otherwise, Congress would be attempting to tax, as a part of a deceased settlor's estate, in States where beneficiaries have the legal right to terminate a trust, property with which the settlor had irrevocably parted in his lifetime, so far as any power, on his part as settlor, to terminate the trust was concerned. This, of course, Congress could not do without violating the Fifth Amendment of the Constitution, U.S.C.A.; and, an intent so to do was not to be imputed to Congress by adopting the construction of Sec. 302(d) of the Estate Tax Act of 1926 for which the Government was contending in the Helmholz case. The thing of importance in the Helmholz case was that the power of revocation there rested with the beneficiaries and not with the settlor as such. The ruling in the Poor case so implies. In the latter case, the trustees did not have a power to revoke conferred by law as did the beneficiaries in the Helmholz case. The trustees' power to revoke in the Poor case came from the trust indenture alone. Yet, the result in the Poor case was the same as in the Helmholz case. Neither the Helmholz case nor the Poor case distinguishes between a settlor's power to revoke when imposed by law and a settlor's like power when reserved by his trust indenture. It is implicit in the case of Hughes v. Commissioner, 9 Cir., 104 F.2d 144, that a power to revoke a transfer in trust, arising by operation of law, comes within the purview of Section 501(a) and (c) of the Revenue Act of 1932. In that case, other than for the settlor's power to revoke which was imposed by a California statute, the transfer was complete and irrevocable as a gift, no power to revoke having been reserved by the settlor in his trust indenture. Under the law of Massachusetts the trust was irrevocable. The court held that the law of Massachusetts (the situs of the trust) governed in determining when the transfer became consummate as a gift. Nonetheless, the implication of the court's reasoning is plain. If the law of 966 California (the domicile of the settlor) had governed, the effect of the statutorily imposed power of revocation in California would have been to suspend the taxability of the transfer, as a gift, until the power, which the law there imposed, had been extinguished or terminated. The argument that the assessment of a tax on the respondent's transfer in this case would be to invoke her disability, as a minor, to her disadvantage, contrary to the law's solicitude for minors, misconceives what is no more than a concomitant result attendant upon the minor's legal inability to part with her property completely and absolutely during her minority. The contention of the respondent, if adopted, would mean that all transfers by minors, absolute on their face, while a gift tax act was extant, would be taxable, when made, notwithstanding that the minor might later disaffirm and thus completely nullify the transfer. Such a hardship on a minor could readily prove to be a barrier to a minor's free exercise of his unquestionable right to disaffirm. Suppose the minor in the present instance had made the transfer in trust two days after the Gift Tax Act became effective, instead of two days before, as she did. Would she have, at once, become liable for a tax? We think not. Her dominion and control over the transfer did not cease until she attained her majority and failed to disaffirm. To tax as a gift that which is not a gift, Congress did not intend. Furthermore, Section 510 of the Gift Tax Act of 1932, 26 U.S.C.A. § 559, makes the donee liable for the tax also. "It can hardly be supposed that Congress intended to impose personal liability upon the donee of a gift of property, so incomplete that he might be deprived of it by the donor the day after he had paid the tax". Sanford's Estate v. Commissioner of Internal Revenue, 60 S.Ct. 51, 57, 84 L.Ed. ___. Or, as the Supreme Court also said in Burnet v. Guggenheim, supra, "Hardship there plainly is in exacting the immediate payment of a tax upon the value of the principal when nothing has been done to give assurance that any part of the principal will ever go to the donee". The hardship of the result which the respondent's contention would entail denies it validity. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249. The argument, that to impose a tax on the transfer when the minor attained her majority and failed to disaffirm, would require that the statute be construed as having retroactive effect, contrary to the decisions[9] and the Act[10] itself, erroneously assumes that the gift was complete when the minor executed her deed of trust. It was the change of legal rights and the shifting of economic benefits that came about with the termination of the minor's power to revoke "which Congress was at liberty, under the Constitution, to tax as a transfer effected at that time. * * The question is not one of legislative power. It is one of legislative intention." Burnet v. Guggenheim, supra. The respondent suggests that a ruling, that a minor's transfer in trust does not become taxable until the minor attains majority and fails to disaffirm, will lead to difficulties in administration with respect to the date of taxability of a transfer in view of the varying periods allowed minors for disaffirmance after majority. No such difficulty arises from the record in this case. The respondent objected neither to the Commissioner's determination of the date the transfer became complete as a gift nor to the valuation placed upon the securities embraced by the transfer. Moreover, the period of the New Jersey statute of limitations, the utter conceivable limit of the respondent's right to disaffirm, expired on October 9, 1939, without an effort at disaffirmance on her part. In any event, for the Commissioner to promulgate a regulation with respect to a minor's transfer in trust that will fully protect the minor's free exercise of his right to disaffirm after majority should not present insuperable difficulty. The decision of the Board of Tax Appeals is reversed and the case remanded to the Board with directions to proceed in accordance with this opinion. NOTES [1] The indenture takes cognizance, in several instances, of the settlor's then minority. Thus it provides that, if the settlor should die prior to October 9, 1933, the trust should immediately terminate and the principal of the trust fund should be paid over and distributed by the trustees in accordance with other dispositions specified in the indenture; and, further, the power given to the trustees to encroach upon the trust fund in favor of the beneficiaries (subject to certain directions) "even up to the whole amount of such principal" is expressly limited, in its exercise by the trustees, to any time after October 9, 1933. [2] "Section 501 [550]. Imposition of tax "(a) For the calendar year 1932 and each calendar year thereafter a tax, computed as provided in section 502 [551], shall be imposed upon the transfer during such calendar year by any individual, resident, or non-resident, of property by gift. "(b) The tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible; but, in the case of a non-resident not a citizen of the United States, shall apply to a transfer only if the property is situated within the United States. The tax shall not apply to a transfer made on or before the date of the enactment of this Act [June 6, 1932]. "(c) The tax shall not apply to a transfer of property in trust where the power to revest in the donor title to such property is vested in the donor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such property or the income therefrom, but the relinquishment or termination of such power (other than by the donor's death) shall be considered to be a transfer by the donor by gift of the property subject to such power, and any payment of the income therefrom to a beneficiary other than the donor shall be considered to be a transfer by the donor of such income by gift." Revenue Act of June 6, 1932, c. 209, 47 Stat. 169, 26 U.S.C.A. § 550 and note. [3] See, also, Chase National Bank v. United States, 278 U.S. 327, 338, 49 S. Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388, and Saltonstall v. Saltonstall, 276 U.S. 260, 271, 48 S.Ct. 225, 72 L.Ed. 565. [4] See House Report No. 704, 73rd Congress, 2nd Session, p. 40, and Senate Report No. 558, 73rd Congress, 2nd Session, p. 50. [5] Revenue Act of 1934, c. 277, § 511, 48 Stat. 680, 26 U.S.C.A. § 550, note. [6] 43 Stat. 253, c. 234, 26 U.S.C.A. § 1131 note. [7] Revenue Act of 1926, c. 27, 44 Stat. 9, 26 U.S.C.A. § 411(d). [8] Restatement of the Law of Trusts, Secs. 337, 338. [9] Blodgett v. Holden, 275 U.S. 142, 276 U.S. 594, 48 S.Ct. 105, 72 L.Ed. 206; Untermyer v. Anderson, 276 U.S. 440, 48 S.Ct. 353, 72 L.Ed. 645. [10] Sec. 501(b) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 26 U.S.C.A. § 550(b).	{ "pile_set_name": "FreeLaw" }
978 F.2d 714 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Cleo L. FRANKLINS, Plaintiff-Appellant,v.MARICOPA COUNTY MEDICAL CENTER; Dr. Richard Seligson; Dr.Matthews; Dr. Bruns; Dr. Weinmar, Maria Plant, R.N.;Dorothy McPeek, R.N.; Officer Rolland Phillips; OfficerHenry Griffins; City of Phoenix Police Department;Sergeant Copenhaver; Officer James Calams; Officer BrianKarnes, Defendants-Appellees. No. 91-16413. United States Court of Appeals, Ninth Circuit. Submitted Oct. 9, 1992.Decided Oct. 29, 1992. Before POOLE, FERNANDEZ and T.G. NELSON, Circuit Judges. 1 MEMORANDUM* 2 Appellant Cleo L. Franklins appeals the district court's grant of summary judgment in his 42 U.S.C. § 1983 action. Franklins' claims arise from his arrest and searches performed prior and incident thereto. The district court found that there was no genuine issue of material fact and that the appellees were entitled to judgment as a matter of law. We affirm. 3 * On February 21, 1988 at 11:19 p.m., appellees officers Calams and Karnes of the Phoenix Police Department observed a vehicle parked in the desert area of 700 East Mineral Road. Calams shined his spotlight on the car, and the officers saw three persons in the vehicle moving around and bending over in the vehicle as if to hide something. The officers then approached the vehicle, Calams on the driver's side and Karnes on the passengers' side. Calams confronted the appellant, Cleo Franklins, who was in the driver's seat. Calams observed that Franklins was holding a clear plastic bag, approximately one inch by one inch, which contained a white powder substance that Calams believed to be cocaine. Calams reached into the car to retrieve the bag, and Franklins pushed him away. Calams pulled Franklins from the car and saw Franklins swallow the bag. The officers then arrested Franklins and put him in their patrol car. 4 Calams called his supervisor, appellee Sergeant Copenhaver, who told Calams that he should advise Franklins that he could die if a bag of cocaine burst inside his stomach. Calams so advised Franklins, and Franklins agreed to go to the hospital. The officers then transported Franklins to appellee Maricopa Medical Center. 5 Upon arriving at the hospital, the officers contacted appellee Dr. Seligson, who advised them that the bag could burst inside Franklins' stomach and, if the bag contained cocaine, it could possibly cause his death. Dr. Seligson likewise advised Franklins, who refused to undergo an endoscopy, a stomach pumping procedure. 6 At approximately 1:00 a.m. on February 22, 1988, Dr. Seligson and Calams contacted Judge Thomas O'Toole of the Maricopa County Superior Court. Upon hearing Calams swear to his version of the events, Judge O'Toole issued a telephonic warrant for the performance of an endoscopy on Franklins in order to search for the bag. 7 At approximately 2:00 a.m., after the telephonic warrant was issued, Franklins was taken to the emergency room, where an endoscopy was performed. The endoscopy was unsuccessful, and Franklins suffered two grand mal seizures1 during the procedure, at approximately 2:50 and 3:00 a.m., respectively. Based on these seizures, the hospital staff declared Franklins a medical emergency and admitted him to the hospital. 8 Later in the morning of February 22, 1988, Franklins underwent additional procedures. Franklins took a urine test, which showed that he had traces of cocaine in his system. Sometime after 11:00 a.m., Franklins consented to a second endoscopy which was also unsuccessful. 9 At 3:50 p.m., based on Franklins' urinalysis results, his previous seizures, the hospital's inability to perform a successful endoscopy and the belief that Franklins had a high risk of death if the bag burst in stomach, the hospital performed an exploratory laparotomy, a surgical procedure in which the abdomen is opened in order to remove an item from the stomach or intestines. The laparotomy was performed sometime between 5:15 and 7:45 p.m. The bag was removed from Franklins' stomach during the laparotomy and there were no complications from the procedure. 10 On November 29, 1989, Franklins filed suit in the United States District Court for the District of Arizona, alleging that his First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendment rights were violated as a result of the foregoing events. On June 24, 1991, the district court entered judgment in favor of the appellees based on its grant of summary judgment in their favor with respect to all of Franklins' claims. II 11 A grant of summary judgment is reviewed de novo. Roberts v. Continental Ins. Co., 770 F.2d 853, 855 (9th Cir.1985). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). 12 Franklins neither submitted evidence nor otherwise controverted the defendants' supporting evidence in opposition to the defendants' summary judgment motions. "[A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Federal Rule of Civil Procedure 56(e); Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). Although Franklins argues that the district court erred in not allowing his case to proceed to trial, there are simply no factual issues in dispute. Therefore, we can properly decide this case as a matter of law. III 13 Franklins challenges (a) the initial investigation, (b) his arrest, and (c) the searches performed incident to his arrest as violative of the Fourth Amendment. We find that the sequence of events giving rise to these acts clearly shows that they were constitutional. 14 The police officers had an articulable suspicion sufficient to make an investigatory stop. Terry v. Ohio, 392 U.S. 1, 22 (1968). The officers noticed conduct sufficiently suspicious to warrant further investigation--the movements of the persons in the car which looked as if they were trying to hide something. Therefore, the police detainer to look further was lawful as to Franklins. In so doing, Calams noticed a bag containing what he reasonably believed might be cocaine. Calams was justified in reaching into the car to grab the bag. "[I]f, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately." Texas v. Brown, 460 U.S. 730, 739 (1983) (citations omitted). Furthermore, Calams did not even seize the bag but instead merely saw it in the car and saw Franklins swallow it. "There is no reason [Calams] should be precluded from observing as an officer what would be entirely visible to him as a private citizen." Id. at 740. Calams' observation of the bag was not a search under the Fourth Amendment. Id. There was no unconstitutional search2 prior to Franklins' arrest. 15 A warrantless arrest on public property supported by probable cause does not violate the Fourth Amendment. United States v. Johnson, 626 F.2d 753, 755-56 (9th Cir.1980), aff'd on other grounds, 457 U.S. 537 (1982). Franklins was arrested after he was pulled out of his car3 and he swallowed the bag. At the time, the officers had probable cause based on their belief that the bag in Franklins' possession contained cocaine. "There is probable cause for an arrest and a search incident to that arrest if, under a totality of the facts and circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the suspect had committed a crime...." U.S. v. Gonzales, 749 F.2d 1329, 1337 (9th Cir.1984). Therefore, the arrest was constitutional. 16 The initial endoscopy was performed pursuant to a warrant and based on probable cause that Franklins had swallowed a bag the officers believed contained cocaine. This search was clearly constitutional. See Fuller v. MG Jewelry, 950 F.2d 1437, 1449-50 (9th Cir.1991). Franklins himself consented to the second endoscopy. Therefore, this procedure was also not an unconstitutional search. Schneckloth v. Bustamonte, 412 U.S. 218, 232-33 (1973). 17 Moreover, all of the medical procedures were performed based on exigent circumstances. The Supreme Court has stated that the "need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency." Mincey v. Arizona, 437 U.S. 385, 392 (1978) (citations omitted). Furthermore, this Court has held that the Fourth Amendment does not bar government officials from making warrantless searches and seizures in circumstances where they reasonably believe that the search is required to deal with a life-threatening emergency. Mayes v. U.S., 670 F.2d 126, 128 (9th Cir.1982).4 18 In Mayes, a government official performed a warrantless search for an object that had obstructed the defendant's daughter's breathing passage. At the time, the daughter was gravely ill and in extremely critical condition. The attending physician, believing that it was imperative to examine the object that had caused the child's injury, instructed the official to return to the defendant's apartment and retrieve the object. Id. 19 In this case, there was a greater threat to Franklins' life. The medical procedures were performed because a high risk of death existed if the bag burst in his stomach. These exigent circumstances justified the medical procedures performed on Franklins.5 IV 20 Franklins further argues that the district court erred in entering judgment against him on his First, Fifth, Eighth and Ninth Amendment claims in addition to the above-discussed claims, which are based on the Fourth and Fourteenth Amendments.6 Franklins failed to allege or submit evidence supporting any specific facts underlying these claims. Therefore, the district court properly granted summary judgment in favor of the defendants as to these claims. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims...." Celotex, 477 U.S. at 323-24. 21 Franklins also argues that the district court erred in entering judgment against him on his claim that the appellees conspired to violate his civil rights in violation of 42 U.S.C. § 1985. While this claim was not addressed by the district court, presumably because it found that the underlying claims lacked merit, there is no record support for this claim. In addition to no constitutional violations, there is no showing that the defendants were motivated by a racial or other class-based discriminatory animus. See, Guzman v. Van Denmark, 651 F.Supp. 1180 (C.D.Cal.1987) (holding that a plaintiff's section 1985 claim did not state a cause of action because it failed to allege or prove that the defendants had a discriminatory motivation). Accordingly, summary judgment was proper. 22 The judgment of the district court is AFFIRMED. * Pursuant to Ninth Circuit Rule 34-4, the panel unanimously finds this case suitable for disposition without oral argument ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Grand mal is defined as "a type of epilepsy in which there are convulsions and loss of consciousness." Webster's New World Dictionary (3rd Ed.1988) 2 Even assuming that a warrantless search occurred, it was nonetheless constitutional. The "automobile exception" to the warrant requirement obviously recognizes that the inherent mobility of an automobile "creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible." California v. Carney, 471 U.S. 386, 391 (1985), citing, South Dakota v. Opperman, 428 U.S. 364, 367 (1976). See also Carney, 471 U.S. at 391-92. (citations omitted) 3 Whatever expectation of privacy Franklins may have had so as to require a warrant, the existence of manifest exigent circumstances--the officers' belief that there was a risk of Franklins' death--would constitute an exception to the warrant requirement 4 Mincey and Mayes were cited by the Fifth Circuit in United States v. Borchardt, 809 F.2d 1115, 1117 and n. 3 (5th Cir.1987). In Borchardt the court held that the Fourth Amendment does not bar warrantless intrusions where government officials reasonably believe the intrusion is necessary to deal with a life-threatening emergency. Id. at 1117 Borchardt was suspected of ingesting heroin by government officials. After determining that Borchardt was in critical and deteriorating condition and concluding that Borchardt was unable to make a decision regarding treatment, a nurse administered a drug designed to reverse narcotic effects. Id. at 1116-1117. The court held that such a search was reasonable given the existence of a life-threatening emergency. Id. at 1118. 5 We have assumed, without deciding, that it is proper to call the medical procedures used in this case "searches." 6 This assumes that Franklins' basis for pleading the Fourteenth Amendment is its incorporation of the Fourth Amendment to the appellees' conduct. See Mapp v. Ohio, 367 U.S. 643, 657-660 (1961). While the Supreme Court held in Rochin v. California, 342 U.S. 165, 173-74 (1952), that police officers' attempt to extract potential evidence (pills) from a person's mouth by physical force and by forcing the person to undergo medical procedures violated the Due Process Clause of the Fourteenth Amendment, Rochin was decided before the Fourth Amendment exclusionary rule was made applicable to the states and its holding is now subsumed the Fourth Amendment. See, W.R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 5.3(c) at 503, n. 115 (1988)	{ "pile_set_name": "FreeLaw" }
732 F.2d 733 PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee,v.Jesus F. BORJA, Defendant-Appellant. No. 83-1138. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 18, 1983.Decided May 4, 1984. Lee Jay Todd, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee. Jeffrey Cook, Cunliffe & Cook, Agana, Guam, for defendant-appellant. Appeal from the United States District Court for the District of Guam. Before GOODWIN, SCHROEDER, and FARRIS, Circuit Judges. SCHROEDER, Circuit Judge. 1 Jesus F. Borja appeals his conviction and sentence for burglary, aggravated assault, and possession and use of a deadly weapon during the commission of a burglary. In addition to challenging the legality of his arrest and the admissibility of the identification evidence, he raises two issues of first impression under Guam law. The first is whether he could be convicted of possession or use of a deadly weapon during the commission of a burglary when the evidence showed that he used a weapon in an assault after entering an apartment, but no evidence showed that he either possessed or used the weapon during his actual unauthorized entry into the apartment. The second is whether the Guam Crimes and Corrections Code authorizes imposition of consecutive sentences for burglary and for use of a deadly weapon during the commission of a burglary. We affirm the conviction on all counts and uphold the sentencing. 2 Early in the morning of June 17, 1981, a woman who lived in the same apartment complex as Borja awakened to find a man holding a knife to her throat. The woman screamed and her sister chased the man outside. When the police arrived, they interviewed the woman, her sister, and a neighbor, all of whom indicated that the intruder was the man who lived in the downstairs apartment, Jesus Borja. Without obtaining a warrant the police entered Borja's apartment, arrested him, and took him outside where the woman identified him as her assailant. 3 A jury convicted Borja of burglary, aggravated assault, and use of a deadly weapon during the commission of a burglary. The court sentenced Borja to five years imprisonment for burglary and added a consecutive five year sentence, along with a special three year parole term, for possession and use of a deadly weapon. Borja also received a three year concurrent sentence for the aggravated assault. 4 Borja was convicted of burglary under section 37.20(a) of the Guam Crimes and Corrections Code, which provides: 5 A person is guilty of burglary if he enters or surreptitiously remains in any habitable property or a separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the defendant is licensed or privileged to enter.... 6 Guam Code Ann. tit. 9, Sec. 37.20(a) (1982). 7 The burglary conviction served as the underlying felony for the Guam enhancement provision:Whoever unlawfully possesses or uses a deadly weapon in the commission of a felony punishable under the laws of Guam shall, in addition to the punishment imposed for the commission of such felony, be imprisoned for a term of not less than five (5) years nor more than twenty-five (25) years. The sentence shall include a special parole term of not less than three (3) years in addition to such term of imprisonment. No person convicted and sentenced hereunder shall be eligible for parole or probation until he shall have served at least five (5) years in prison. No person convicted or sentenced hereunder shall be eligible to participate in any work release program until he shall have served at least five (5) years. The term required to be imposed by this Section shall not run concurrently with any term of imprisonment imposed for the commission of any other felony. 8 Guam Code Ann. tit. 9, Sec. 80.37 (1982). 9 Borja contends his conviction for use of a deadly weapon during the commission of a burglary was improper. He argues that the burglary was complete at the time that he made his unauthorized entry, and the evidence showed possession or use of a weapon only after that time. 10 Although Borja's interpretation of the Guam burglary statute is plausible, it is not the interpretation that California courts have placed upon similar burglary and enhancement provisions. Guam's burglary and enhancement statutes are based upon their California counterparts. See Cal.Penal Code Secs. 459,1 12022.5, 12022.7 (West 1982). This court has recognized that where Guam law is unclear, California cases "are persuasive." Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir.1975). See Smith v. Lujan, 588 F.2d 1304, 1306 (9th Cir.1979). 11 For the purposes of the California enhancement statute, burglary is a continuing offense that is not completed until the defendant reaches a place of safety. People v. Ramirez, 93 Cal.App.3d 714, 726-27, 156 Cal.Rptr. 94, 100 (1979); People v. Walls, 85 Cal.App.3d 447, 454, 149 Cal.Rptr. 460, 464 (1978); see also People v. Ramos, 30 Cal.3d 553, 587, 639 P.2d 908, 927, 180 Cal.Rptr. 266, 285 (1982) (en banc) (defendant could be convicted for murder during the commission of a robbery because "robbery continues beyond the point in time when the property is taken from the victim"), rev'd on other grounds sub nom. California v. Ramos, --- U.S. ----, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). In rejecting the argument that a burglary is completed once the defendant crosses the victim's threshold, the California Court of Appeal stated, "[a]doption of this approach would, of necessity, introduce an artificial analysis as to when the underlying robbery, burglary or rape had been 'completed' and, in our view, would subvert the legislative intent in enacting the enhancement provisions." People v. Ramirez, 93 Cal.App.3d at 726, 156 Cal.Rptr. at 100. 12 The Model Penal Code also supports holding that burglary is a continuing offense. Section 221.1(2)(b) provides: "An act shall be deemed 'in the course of committing' an offense if it occurs in an attempt to commit the offense or in flight after the attempt or commission." Model Penal Code Sec. 221.1(2)(b) (1962). The recognition that one can be in the "course of committing" even "after the ... commission" indicates that an offense is not completed for all purposes once the statutory requirements are satisfied. Since Borja used a deadly weapon before he left the scene of the burglary and reached a place of safety, we hold that the evidence supported application of section 80.37's enhancement provisions. 13 Borja bases his challenge to the imposition of a consecutive sentence for use of a deadly weapon upon a claimed incompatibility between section 80.37, which expressly calls for consecutive sentencing, and section 80.10(b), which provides:Where the judgment of conviction included more than one crime, the sentences imposed shall run concurrently except as provided in Secs. 80.38, 80.40 and 80.42. 14 Guam Code Ann. tit. 9, Sec. 80.10(b) (1982). 15 Borja correctly points out that section 80.37 is not one of the enumerated exceptions to section 80.10(b). He argues that the sentencing statutes are therefore ambiguous and should be interpreted in favor of concurrent rather than consecutive terms. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). 16 The language of section 80.37, however, is clear; punishment for use of a deadly weapon shall be imposed "in addition to [the punishment for the underlying felony]" and "shall not run concurrently." Indeed, were we to hold that the enumeration in section 80.10(b) precludes the imposition of consecutive sentences under section 80.37, we would rob section 80.37 of any effect. The rule favoring concurrent sentences does not require such a result. As the Supreme Court stated in Missouri v. Hunter, --- U.S. ----, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983), where "a legislature specifically authorizes cumulative punishment under two statutes ... a court's task of statutory construction is at an end ... and the trial court or jury may impose cumulative punishment under such statutes in a single trial." Section 80.37 is an unambiguous expression of the Guam legislature's intent to impose additional punishment on those who use weapons during the commission of felonies. See 2A C. Sands, Sutherland Statutory Construction Sec. 4604 (1973). That legislative intent should be honored. 17 Borja's remaining contentions may be dealt with summarily. Exigent circumstances justified the officers' warrantless entry into his apartment as required by Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Exigency must be viewed from the totality of circumstances known to the officers at the time of the warrantless entry. See United States v. Manfredi, 722 F.2d 519, 522-23 (9th Cir.1983). In the present case, the trial court found that exigent circumstances included the fact that the victim and her sister knew the burglar and where he lived, that the sister had followed the defendant until she saw him turn toward his apartment and heard the door slam shut, and that the officers had reason to believe that Borja's wife, whom he had threatened earlier in the evening, was still in the apartment and in danger. 18 Similarly, the totality of the circumstances, including the witnesses' knowledge of the identity of the defendant and their ability to observe him, compels the conclusion that the field identification procedure was not unnecessarily suggestive and conducive to mistaken identification. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). 19 Affirmed. 1 The original source for Guam Code Ann. tit. 9, Sec. 37.20 is 1947 Cal.Stats. ch. 1052. The California burglary statute is now codified with minor changes at Cal.Penal Code Sec. 459 (West 1982)	{ "pile_set_name": "FreeLaw" }
778 F.2d 792 Management Sciencev.Pierce 84-9019 United States Court of Appeals,Eleventh Circuit. 11/22/85 N.D.Ga., 598 F.Supp. 223 AFFIRMED	{ "pile_set_name": "FreeLaw" }
PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT THOMAS M. STONE, Plaintiff-Appellee, v. No. 95-1110 LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant. THOMAS M. STONE, Plaintiff-Appellant, v. No. 95-1148 LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CA-94-560-2) Argued: December 4, 1995 Decided: January 28, 1997 Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges. _________________________________________________________________ Reversed and remanded with instructions by published opinion. Judge Williams wrote the opinion, in which Judge Hamilton and Judge Motz joined. _________________________________________________________________ COUNSEL ARGUED: Alan Brody Rashkind, FURNISS, DAVIS, RASHKIND & SAUNDERS, P.C., Norfolk, Virginia, for Appellant. Robert Lee Samuel, Jr., CLARK & STANT, P.C., Virginia Beach, Virginia, for Appellee. ON BRIEF: Stephen C. Swain, S. Geoffrey Glick, CLARK & STANT, P.C., Virginia Beach, Virginia, for Appellee. _________________________________________________________________ OPINION WILLIAMS, Circuit Judge: We certified a question of Virginia substantive law to the Supreme Court of Virginia, which has now answered our question. See Stone v. Liberty Mut. Ins. Co., No 96-0412, 1996 WL 726888 (Va. Dec. 16, 1996). Applying Virginia law as articulated in Stone, we conclude that Thomas Stone is not an "insured" for purposes of the Virginia uninsured/underinsured motorist statute, see Va. Code Ann. § 38.2- 2206 (Michie Supp. 1996), and therefore is ineligible to receive unin- sured motorist benefits under Tidewater Pizza, Incorporated's insur- ance policy with Liberty Mutual Insurance Company. Accordingly, we reverse the judgment of the district court and remand with instruc- tions to enter judgment in favor of Liberty Mutual. I. A. The facts are recited in our order of certification as well as the opinion of the Supreme Court of Virginia, see Stone, 1996 WL 726888, at 1-2. Therefore, we shall only briefly repeat them here. Liberty Mutual issued a commercial business automobile policy to Tidewater Pizza, naming Tidewater Pizza as the insured and insuring two automobiles, a Honda and a Ford, both of which were owned by Tidewater Pizza. The policy provided uninsured1 motorist coverage _________________________________________________________________ 1 The parties and the Supreme Court of Virginia used the term "unin- sured" to refer to both underinsured and uninsured drivers. For the sake of consistency, we shall do likewise. 2 with limits of $350,000 to two classes of potential insureds: Tidewa- ter Pizza and its family members; and persons occupying a "covered auto." The policy defined "insureds" as: 1. You are an insured for any covered auto. 2. Anyone else is an insured while using with your per- mission a covered auto you own, hire or borrow except: a. The owner of a covered auto you hire or bor- row from one of your employees or a member of his or her household. b. Someone using a covered auto while he or she is working in a business of selling, servicing, repairing or parking autos unless that business is yours. c. Anyone other than your employees, a lessee or borrower or any of their employees, while moving property to or from a covered auto. 3. Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability. However, the owner or anyone else from whom you hire or borrow a covered auto is an insured only if that auto is a trailer connected to a covered auto you own . (J.A. at 47.) The policy defined "covered auto" for purposes of liability cover- age to include automobiles Tidewater Pizza did not own, lease, hire, or borrow but which it used in connection with its business; but for purposes of uninsured motorist coverage, the term"covered auto" was defined to include "[o]nly those autos you own which, because of the law in the state where they are licensed or principally garaged, are required to have and cannot reject uninsured motorists insurance." 3 (J.A. at 26.) Stone conceded that he was not occupying a motor vehi- cle owned, leased, hired, or borrowed by Tidewater Pizza. B. Stone was a part-time employee of Tidewater Pizza, for whom he delivered pizzas. In making his deliveries, Stone used his own auto- mobile and was responsible for providing his own transportation. Stone's automobile was not owned, leased, hired, or borrowed by Tidewater Pizza, nor was Stone's automobile listed on Tidewater Pizza's policy with Liberty Mutual. While Stone was lawfully operat- ing his automobile in the scope of his employment, he was struck by an automobile driven by Carol Drye. As a result of this collision, Stone suffered serious physical injuries. Consequently, he success- fully sued Drye in state court and obtained a judgment of $250,000 plus interest and costs. Drye's liability insurance coverage, however, was limited to $25,000. Therefore, to satisfy his judgment, Stone filed a declaratory judgment action in Virginia state court against Liberty Mutual, seek- ing a declaration that he was entitled to uninsured motorist coverage under Tidewater Pizza's policy with Liberty Mutual. The case was removed to federal district court on the basis of diversity of citizen- ship, and the parties filed cross-motions for summary judgment. The district court concluded that the policy violated Virginia's uninsured/underinsured motorist statute, see Va. Code Ann. § 38.2- 2206A (Michie Supp. 1996), by failing to provide uninsured motorist coverage equal to the liability coverage it extended to drivers of cov- ered automobiles like Stone. Accordingly, the district court granted summary judgment in favor of Stone, reforming the policy to provide uninsured coverage for Stone in the amount of $225,000 plus costs and interest.2 We expressed concern regarding the district court's _________________________________________________________________ 2 The district court rejected Stone's alternative contention that he was covered under the policy because he was a "family member" of Tidewa- ter Pizza and thereby "insured" under the policy and subsection 38.2- 2206B of the Code of Virginia, see Va. Code Ann. § 38.2-2206B (Michie Supp. 1996). Explaining that the term "family member" as defined both 4 holding that Liberty Mutual was liable, and finding no Virginia authorities directly controlling, we certified this question to the Supreme Court of Virginia: Whether Tidewater Pizza's policy with Liberty Mutual violated subsection 38.2-2206A, because Stone is an insured under subsection 38.2-2206B. In light of the Supreme Court of Virginia's answer to our question, our concern was well-founded. II. Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who,"after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion for sum- mary judgment, a party must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) it is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the evidence "is so one-sided that one party must prevail as a matter of law," we must affirm the grant of summary judgment in that party's favor. Id. at 252. A party"cannot create a genuine issue of material fact through mere speculation or the building of one infer- ence upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). As the Anderson Court explained,"[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insuf- ficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. We review a district court's grant of summary judgment de novo. See Cooke v. Manufac- tured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir. 1993). Guided by this procedural standard, we analyze Stone's claim. _________________________________________________________________ in subsection 38.2-2206B and the policy was unambiguous, the district court relied on Insurance Co. of North America v. Perry, 134 S.E.2d 418 (Va. 1964), to conclude that Stone was not a "family member" of Tide- water. Stone cross-appeals the district court's alternative ruling. We agree with the district court that the rationale of Perry controls disposi- tion of this issue and affirm that portion of the district court's order. Accordingly, that issue was not certified to the Supreme Court of Vir- ginia. 5 A. The Virginia uninsured motorist insurance statute provides in perti- nent part: [N]o policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance, or use of a motor vehicle shall be issued or delivered . . . to the owner of such vehicle or shall be issued or delivered by any insurer licensed . . . upon any motor vehicle principally garaged or used in this Commonwealth unless it contains an endorsement or provisions undertaking to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits not less than [those provided by statute]. Those limits shall equal but not exceed the limits of the liability insur- ance provided by the policy, unless any one named insured rejects the additional uninsured motorist insurance coverage . . . . The endorsement or provisions shall also obligate the insurer to make payment for bodily injury or property dam- age caused by the operation or use of an underinsured motor vehicle to the extent the vehicle is underinsured, as defined in subsection B of this section.3 Va. Code Ann. § 38.2-2206A (Michie Supp. 1996). According to the Supreme Court of Virginia, subsection 38.2-2206A"merely recit[es] those circumstances under which policies providing bodily injury lia- bility insurance . . . must contain endorsements agreeing to pay `the insured' certain sums that such insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle." Stone, 1996 WL 726888 at 4. As applied here, subsection 38.2-2206A does not "require that all the same vehicles and insureds be covered under both liability and uninsured motorist coverages of the same policy." Id. Thus, although this subsection mandates that limits of uninsured motorist coverage be equal to the limits of liability insurance, it does _________________________________________________________________ 3 Since Stone's accident, the Virginia legislature has amended the rele- vant statutory sections. Because the amendments are minor and in no way affect the disposition of this case, we quote from the current statu- tory language. 6 not mandate that all types of coverage be similar. Standing alone, therefore, subsection 38.2-2206A does not render Liberty Mutual lia- ble for Stone's injuries. Because subsection 38.2-2206A does not pro- vide coverage for Stone, we turn to subsection 38.2-2206B to determine if it extends coverage to Stone. B. The uninsured motorist statute defines "insured": "Insured" as used in subsection[ ] A . . . of this section means the named insured and, while resident of the same household, the spouse of the named insured, and relatives, wards or foster children of either, while in a motor vehicle or otherwise, and any person who uses the motor vehicle to which the policy applies, with the expressed or implied con- sent of the named insured, and a guest in the motor vehicle to which the policy applies or the personal representative of any of the above. Va. Code Ann. § 38.2-2206B (Michie Supp. 1996). Under this sub- section, the Supreme Court of Virginia concluded that Liberty Mutual is not liable to Stone, offering two reasons to support its conclusion. First, the court examined the language of the subsection, which it con- cluded excluded Stone's automobile from coverage. Second, the court explained that Tidewater Pizza simply lacked authority under the Lib- erty Mutual policy to permit Stone to use his own automobile, yet be covered under the policy. First, in analyzing subsection 38.2-2206B, the Supreme Court of Virginia examined the term "motor vehicle." According to the court, the language of this subsection does not refer to"`a,' `any,' `every,' or `all,'" motor vehicles, but specifically to"`the' motor vehicle." Stone, 1996 WL 726888, at 4. Such precise, exclusive language nec- essarily means "the Honda" or "the Ford" -- automobiles owned by Tidewater Pizza -- not any other automobile, such as Stone's auto- mobile. See id. Second and paramount, the court explained that one operating a "motor vehicle must do so `with the expressed or implied consent of 7 the named insured,'" id. at 4, and here the named insured, Tidewater Pizza, "cannot give permission to use a vehicle that the named insured does not own," id. at 5. Because Tidewater Pizza did not own Stone's automobile, it could not grant him permission to use his auto- mobile for purposes of coverage under its policy with Liberty Mutual. In reaching this conclusion, the court rejected Stone's contentions that he was operating a "covered auto" or that he had the implied consent of Tidewater Pizza to use his automobile because he was performing duties within the scope of his employment: The "expressed or implied consent" language of the sub- section modifies "the motor vehicle to which the policy applies" clause. If the legislature . . . had meant to include as insureds of the second class occupants of non-owned vehicles, [it] would have used [such] language. . . . The uninsured motorist statute contains no such expansive lan- guage. Simply put, "the vehicle" referred to in subsection (B) includes only owned, not non-owned vehicles. Thus, there is no statutory mandate that requires the courts to ignore the insurer's policy language as written. Id. Stone, therefore, is not covered under the policy. Consequently, Liberty Mutual is not liable. Given this conclusion, the judgment of the district court must be reversed with instructions to grant judgment in favor of Liberty Mutual. III. Applying Virginia law, the Supreme Court of Virginia concluded that Stone was not an insured under the Liberty Mutual policy issued to Tidewater Pizza, and we must honor this conclusion. Therefore, we reverse the judgment of the district court and remand with instructions to grant judgment in favor of Liberty Mutual. REVERSED AND REMANDED WITH INSTRUCTIONS 8	{ "pile_set_name": "FreeLaw" }
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 12 2012, 9:59 am court except for the purpose of establishing the defense of res judicata, collateral CLERK estoppel, or the law of the case. of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: PATRICK ALLEN DUFF BETH ANN FOLZ Duff Law, LLC McFadin Higgins & Folz, LLP Evansville, Indiana Mt. Vernon, Indiana IN THE COURT OF APPEALS OF INDIANA IN RE THE PATERNITY OF E.W. ) ) T.S., ) ) Appellant-Petitioner, ) ) vs. ) No. 65A05-1201-JP-23 ) J.W. AND V.W. ) ) Appellees-Respondents. ) ) APPEAL FROM THE POSEY CIRCUIT COURT The Honorable James M. Redwine, Judge Cause Nos. 65C01-0907-JP-145 & 65C01-1012-JP-228 September 12, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge Case Summary After paternity of E.W. was disestablished in Stepfather and established in Natural Father, Natural Father sought to change E.W.’s last name to match his own. Natural Father also sought attorney fees associated with the paternity action. The trial court denied Natural Father’s requests, and he now appeals. Mother and Stepfather cross-appeal, arguing that the trial court erred when it did not make Natural Father’s child-support obligation retroactive to the date of Natural Father’s paternity filing. We conclude that the trial court did not err in denying Natural Father’s request to change E.W.’s name because Natural Father failed to prove that such a change was in E.W.’s best interest. Nor did the trial court err when it refused Natural Father’s request for attorney fees. Finally, because E.W. was already receiving support from Stepfather at the time, the trial court did not err in refusing to make Natural Father’s support obligation retroactive to his paternity filing. We affirm. Facts and Procedural History In 2008, during a period of separation from J.W. (“Stepfather”), V.W. (“Mother”) had sexual relationships with numerous men, including T.S. (“Natural Father”). Shortly after Mother and Natural Father began their relationship, Natural Father was convicted of dealing in methamphetamine and incarcerated. Mother reconciled with Stepfather and learned that she was pregnant. Mother was aware of the possibility that Natural Father, Stepfather, or a few other men could be the baby’s father. Mother gave birth to E.W. in May 2009, and Mother and Stepfather were married in November 2010. Mother and Stepfather later had another child, A.W. 2 The Posey County Prosecutor’s Office filed a paternity action shortly after E.W.’s birth. Although genetic testing showed a 0.000% probability that Stepfather was E.W.’s biological father, Mother and Stepfather nonetheless sought to establish paternity in Stepfather. The Prosecutor’s Office filed an amended petition in support of their efforts. On November 30, 2010, the trial court entered an order establishing Stepfather’s paternity and ordered the child’s name to be changed to E.W.1 Natural Father was released from the Department of Correction in November 2010. One month later, he filed a petition to establish paternity of E.W. In a subsequent court appearance, Natural Father learned that paternity had been established in Stepfather, and he filed a motion to set aside the judgment. Genetic testing was ordered, and the tests results showed a 99.999% probability that Natural Father was E.W.’s biological father. The trial court set a hearing on the matter for November 2011. At the hearing, Natural Father requested that E.W.’s last name be changed to match his own. Natural Father also sought attorney fees associated with the paternity action. Natural Father testified that he wanted E.W. to have his last name because “that is my only son” and because “a kid should have his father’s last name.” Tr. p. 155. Natural Father also testified that it “would be kind of weird” if Mother and Stepfather divorced and Mother later remarried, which would mean that E.W. no longer had his mother’s last name. Id. at 156. 1 The child’s initials were formerly E.R., which reflected Mother’s former last name. 3 Mother and Stepfather objected to the name change and explained their reasoning. Mother said that E.W. might feel “out of place” if his name was changed because he had siblings who had the same last name. Id. at 70. Mother explained that she “want[ed] [E.W.] to be able to feel like he is part of the family . . . .” Id. at 71. Mother also said that Natural Father’s last name had a negative connotation in the community due to his criminal history. Stepfather testified that he opposed changing E.W.’s name because “his sister’s last name is [W], his mother’s last name is [W], the father, me, last name is [W]. We are all a family together at one household. I would like that to be a [W] household and I wouldn’t like him to feel like an outcast.” Id. at 97. At the close of the hearing, the trial court summarized the parties’ behavior: Folks, I have been pretty impressed with your ability to get along as well as you have in this extremely difficult situation. It speaks both ways. I see a lot of cases, of course, and people don’t always act like adults and you folks have acted like adults and you have acted like responsible parents. I am very impressed with that. I am particularly impressed with [Stepfather] and his attitude towards [E.W.] and [Natural Father] and this entire situation. Id. at 398. The court then granted Natural Father’s motion as to paternity, setting aside the paternity order as to Stepfather and establishing Natural Father as E.W.’s legal father. As to Natural Father’s child-support obligation, the court explained that it did not believe Indiana Code section 31-14-11-5, which provides that that a child-support order must include the period dating from the filing of the paternity action, was intended to cover a situation like this one—where paternity had been established in one individual who provided for the child until paternity was disestablished and immediately established in another. Id. For this reason, the court did not order support retroactive to the date of 4 Natural Father’s paternity filing, but instead ordered Natural Father to pay $50 in child support weekly, beginning the following Friday, December 30, 2011. On the issue of changing E.W.’s name, the court denied Natural Father’s request: [W]e have the mother’s name [W], sister’s name [W], [E]’s name is [W]. It is on his birth certificate. I believe it is in his best interest and I am going to find that it is in his best interest that his name remain [W]. Id. at 404. The court also denied Natural Father’s request for attorney fees, saying: “[I] don’t see any reason to believe that either one of you has done anything to[o] egregious here, it is just a very complicated situation.” Id. at 405. Natural Father now appeals, and Mother and Stepfather cross-appeal. Discussion and Decision Natural Father raises two issues on appeal: (1) whether the trial court erred in refusing his request to change E.W.’s last name and (2) whether the trial court erred in denying his request for attorney fees. Mother and Stepfather cross-appeal, arguing that the trial court erred when it failed to order Natural Father to pay child support retroactive to the date of his paternity filing. I. Name Change We first address Natural Father’s contention that the trial court abused its discretion when it denied his request to change E.W.’s last name. We review a trial court’s order to change the name of a minor child under an abuse of discretion standard. Paternity of M.O.B., 627 N.E.2d 1317, 1318 (Ind. Ct. App. 1994) (citations omitted). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances before the court or the court has 5 misinterpreted the law. Id. We do not reweigh the evidence, and we view the evidence in the light most favorable to the appellee. Id. In determining whether a minor child’s name should be changed, “the court is guided by the best interest of the child under Indiana Code section 31-17-2-8.” I.C. § 34- 28-2-4(d). Absent evidence that a name change would be in the child’s best interest, the party seeking a name change is not entitled to such change. M.O.B., 627 N.E.2d at 1318. The factors that a trial court may consider in this context include whether the child holds property under a given name, whether the child is known by public and private entities and community members by a certain name, and the degree of confusion that might be caused by a name change. Id. at 1318-19. The evidence here shows that Natural Father failed to prove that the proposed name change was in E.W.’s best interest. Natural Father’s only testimony as to his reasons for seeking the change was that “he would like” E.W. to have his last name because E.W. was “his only son” and because “a kid should have his father’s last name.” Tr. p. 155-56. Essentially, Natural Father presented evidence that it was in his best interest, rather than E.W.’s, that the child take his last name. M.O.B., 627 N.E.2d at 1318; Garrison v. Knauss, 637 N.E.2d 160 (Ind. Ct. App. 1994); see also Peterson v. Burton, 871 N.E.2d 1025, 1030-31 (Ind. Ct. App. 2007) (distinguishing father’s testimony from the testimony in M.O.B. and Garrison where father testified about how son would be positively impacted by taking his last name and would better understand his 6 connection to father). The trial court did not err in denying Natural Father’s request to change E.W.’s last name.2 II. Attorney Fees Natural Father also argues that the trial court erred in denying his request for attorney fees. Indiana Code section 31-17-7-1(a) authorizes the award of attorney fees in this context. Trial courts enjoy broad discretion in determining whether to award attorney fees, and we will reverse an award only where it is clearly against the logic and effect of the facts and circumstances before the court. In re Paternity of A.S., 948 N.E.2d 380, 389 (Ind. Ct. App. 2011). When determining whether an award of attorney fees is appropriate, there are several factors that a trial court considers, such as the ability to pay and whether fees and litigation expenses were the result of the adverse party’s misconduct. Id. Here, there is no evidence that either party was in a substantially superior financial position. Nor are we inclined to adopt Natural Father’s negative characterization of Mother and Stepfather’s conduct in initially establishing paternity in Stepfather. In declining to award attorney fees, the trial court praised both parties, particularly Stepfather, for their “adult” and “responsible” conduct and explained that it did not “see any reason to believe that either one of you has done anything to[o] egregious here, it is 2 While Natural Father also testified that it “would be kind of weird” for E.W. if Mother and Stepfather divorced and Mother remarried and took her new husband’s name, this was hypothetical testimony of no influence as Mother and Stepfather were still married at the time of the hearing. 7 just a very complicated situation.” Tr. p. 389, 405. We cannot say that the trial court abused its discretion in denying Natural Father’s request for attorney fees.3 III. Child Support Finally, we address Mother and Stepfather’s contention that the trial court erred by failing to order child support retroactive to the date of Natural Father’s paternity filing. Decisions regarding child support generally rest within the sound discretion of the trial court. In re Paternity of D.L., 938 N.E.2d 1221, 1226 (Ind. Ct. App. 2010), aff’d on reh’g, 943 N.E.2d 1284 (Ind. Ct. App. 2011). We will reverse a trial court’s decision in child-support matters only for an abuse of discretion or if the trial court’s determination is contrary to law. Id. Here, the trial court declined to order child support retroactive to the date of the paternity filing because, at that time, E.W. had a legally-recognized father who was providing support. As the trial court explained, this was not the typical initial paternity- establishment scenario contemplated by Indiana Code section 31-14-11-5, which provides that a child support order must include the period dating from the filing of the paternity action. See Ind. Code § 31-14-11-5. Because E.W. was already receiving support from Stepfather at the time Natural Father filed his paternity action, there was no need to order retroactive support. We conclude that the trial court did not err in ordering Natural Father’s child-support obligation to begin one week from the establishment of his paternity. 3 While we do not condone the parties’ pursuit of the establishment of paternity, rather than adoption—which would have been the proper course of action in these circumstances—this did not alter Natural Father’s legal actions or the resulting legal fees. That is, if paternity had not been established in Stepfather, Natural Father still would have been required to file a paternity action. He also would have been required to pursue a legal name change, as E.W.’s last name at birth was Mother’s former last name. 8 Affirmed. MATHIAS, J., and BARNES, J., concur. 9	{ "pile_set_name": "FreeLaw" }
157 P.3d 404 (2007) McILLWAIN v. STATE FARM MUT. AUTO. INS. CO. No. 78956-8. Supreme Court of Washington, Department II. April 5, 2007. Disposition of petition for review. Denied.	{ "pile_set_name": "FreeLaw" }
765 N.W.2d 78 (2009) Jeffrey C. MORRIS, Appellant, v. STATE of Minnesota, Respondent. No. A06-2101. Supreme Court of Minnesota. May 14, 2009. 79 Lawrence Hammerling, Chief Appellate Public Defender, Bradford S. Delapena, Special Assistant Public Defender, St. Paul, for appellant. Lori Swanson, Attorney General, John S. Garry, Assistant Attorney General, St. Paul, for respondent. OPINION ANDERSON, G. BARRY, Justice. Appellant Jeffrey C. Morris pleaded guilty pro se to two counts of misdemeanor theft and received a sentence that required him to serve 45 days in the Hennepin County workhouse. Morris did not pursue a direct appeal. When Morris later filed a pro se petition for postconviction relief, he requested the appointment of counsel. His motions for appointment of counsel were denied by the district court and court of appeals on the basis of Minn.Stat. § 611.14(2) (2008), which entitles only certain postconviction petitioners convicted of felonies or gross misdemeanors to representation by the Minnesota State Public 80 Defender's Office (SPDO) and does not mention misdemeanor defendants. Both courts held that exclusion of misdemeanors from the statute's mandatory representation provisions for first review by postconviction proceedings did not violate Morris's constitutional rights. The court of appeals noted that Minn.Stat. § 611.25, subd. 1(b) (2004) allowed the SPDO, at its discretion, to represent misdemeanor defendants pursuing postconviction remedies. We granted Morris' petition for review to consider whether Minn. Const. art. I, § 6, guarantees the appointment of counsel in a first review of a misdemeanor conviction by postconviction proceeding. We hold that it does. On December 14, 1998, Morris took two compact-disc players priced at $179.98 from a Target store without paying. On February 27, 1999, Morris took a canvas priced at $16 from the Minnesota Moments store in Southdale Center without paying. On March 2, 1999, Morris, representing himself before the district court, entered a guilty plea to two charges of misdemeanor theft in violation of Minn.Stat. § 609.52 (2008). Morris signed plea petitions in both cases acknowledging that he understood the charges, was giving up his right to be represented by counsel, and was knowingly and voluntarily waiving his constitutional right to trial. For each theft, he was sentenced to 90 days in the Hennepin County workhouse, with 45 days stayed for one year. Morris reported to the workhouse on March 22, 1999. Morris did not directly appeal either conviction. On December 20, 2005, Morris filed a pro se petition for postconviction relief, seeking to withdraw his pleas on the ground that at the time he pleaded guilty he was not competent to plead guilty or waive his right to counsel. Morris contended that at the time of his pleas, he was suffering from bipolar disorder and delusions. On March 23, 2006, we decided in Deegan v. State that the right to assistance of counsel under Minn. Const. art. I, § 6, extended to a first review of Deegan's felony conviction by a postconviction court. 711 N.W.2d 89, 98 (Minn.2006). In April 2006 Morris asked the district court to appoint counsel to represent him in this first review of his misdemeanor conviction by a postconviction court. Pursuant to Minn.Stat. § 590.05 (2008) (providing that "[a] person financially unable to obtain counsel who desires to pursue the remedy provided in section 590.01 may apply for representation by the state public defender."), the district court forwarded Morris's request to the SPDO. The SPDO declined to represent Morris, citing Minn. Stat. § 611.14(2), which mandates state public defender representation of indigent persons in postconviction proceedings only in felony and gross misdemeanor cases. Morris filed a motion asking the district court to hold that Minn.Stat. § 611.14(2) violates Minn. Const. art. I, § 6. The district court declined to appoint counsel or to declare section 611.14(2) unconstitutional. On appeal, Morris challenged the district court's order denying his motion requesting that legal counsel be appointed to represent him in his petition for postconviction relief, arguing that Minn.Stat. § 611.14(2) violates the Minnesota Constitution. The state public defender filed a Notice of Appearance, which the court of appeals granted. The court of appeals affirmed, holding that Minn.Stat. § 611.14(2) does not violate Minn. Const. art. I, § 6. I. Morris asserts that the analysis we used in Deegan, when we held that Article 81 I, Section 6 of the Minnesota Constitution guaranteed Deegan the right to counsel in a first review of Deegan's felony conviction by postconviction proceeding, applies with equal force to a first review by postconviction relief in a misdemeanor case. We agree. In Deegan, the defendant filed a petition for postconviction relief challenging his felony conviction. 711 N.W.2d at 92. The SPDO denied Deegan's request for representation based on Minn.Stat. § 590.05 (2004) (allowing the SPDO to decline to represent in a postconviction remedy case a person who pleaded guilty and received a presumptive sentence or a downward departure in sentence, when the SPDO determines there is no basis for an appeal of the conviction or sentence). Deegan, 711 N.W.2d at 92. On appeal, Deegan argued that the Minnesota Constitution ensured the right to one appellate review of a criminal conviction-through either a direct appeal or postconviction petition-and that the right to counsel was also constitutionally required because counsel was necessary for the review to be meaningful. Id. at 91. In Deegan, we discussed federal case law regarding the importance of appointed counsel to ensure meaningful review in certain proceedings. In Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Court observed that only a "barren record [spoke] for the indigent" under California's procedure for requesting appointment of counsel, risking "[a]ny real chance he may have had of showing that his appeal has hidden merit." Although we acknowledged that Douglas was limited to direct appeals, we explained that the Court's recent decision in Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005), supported the conclusion that the Supreme Court might well extend the rationale of Douglas to Minnesota's first review by postconviction proceeding. Deegan, 711 N.W.2d at 96. In Halbert, the Supreme Court explained that appellants forced to act pro se were "disarmed in their endeavor to gain first-tier review" because such applicants "will face a record unreviewed by appellate counsel, and will be equipped with no attorney's brief prepared for, or reasoned opinion by, a court of review." 545 U.S. 605, 619, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). We explained in Deegan that we were "persuaded by the rationale" underlying the Supreme Court's decision in Douglas, 372 U.S. at 356, 83 S.Ct. 814, that "the quality of a defendant's one review as of right should not hinge on whether a person can pay for the assistance of counsel." Deegan, 711 N.W.2d at 98. We concluded that the right to first review by postconviction proceeding recognized in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), was of a nature that prevented a person from meaningfully exercising that right without the assistance of counsel. Deegan, 711 N.W.2d at 98. In support of this conclusion we analogized a first review by postconviction proceeding to direct appeals, see id. at 94; to the decision to submit to chemical testing (which we note is implicated in DWI proceedings, which include felony, gross misdemeanor, and misdemeanor offenses), see id. at 97 (citing Friedman v. Comm'r of Public Safety, 473 N.W.2d 828, 833, 836 (Minn.1991)); see also Minn.Stat. § 169A.20, subd. 3 (2008); and to an accused's request for counsel during a police interrogation, see 711 N.W.2d at 97-98 (citing State v. Risk, 598 N.W.2d 642, 648-49 (Minn.1999)). We distinguished Pennsylvania v. Finley, in which the Court held that a defendant was not denied "meaningful access" where by the time she applied for post-conviction relief, she had been represented at trial and before the Pennsylvania Supreme Court. Deegan, 711 N.W.2d at 96 (citing 82 Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (explaining that first review by postconviction proceeding was more like a direct appeal)). Consequently, we concluded that the right to counsel guaranteed by Minn. Const. Article I, section 6 applied to Deegan's first review by postconviction proceeding. As in Deegan, we begin our analysis here with an overview of the postconviction remedy. 711 N.W.2d at 93. In 1967, the Minnesota Legislature enacted the Postconviction Remedy Act. Act of May 10, 1967, ch. 336, §§ 1-6, 1967 Minn. Laws 517, 517-20 (codified at Minn.Stat. chapter 590 (2008)). The postconviction remedy statute currently states, in relevant part: Except at a time when direct appellate relief is available, a person convicted of a crime, who claims that ... the conviction obtained or the sentence or other disposition made violated the person's rights under the Constitution or laws of the United States or of the state ... may commence a proceeding to secure relief by filing a petition in the district court in the county in which the conviction was had to vacate and set aside the judgment.... Minn.Stat. § 590.01, subd. 1 (2008). The term "crime" was, and still is, defined as "conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine." Minn.Stat. § 609.02, subd. 1 (2008). A misdemeanor is "a crime for which a sentence of not more than 90 days or a fine of not more than $1,000, or both, may be imposed." Minn.Stat. § 609.02, subd. 3 (2008). Consequently, the postconviction remedy statute applies to misdemeanors.[1] As in Deegan, we examine the nature of the right recognized in Knaffla. In Knaffla, we considered whether an appellant was precluded from postconviction relief for errors in his trial because he had failed to seek direct review of his conviction. 309 Minn. 246, 251, 243 N.W.2d 737, 740. We noted that the Postconviction Remedy Act was enacted in response to the United States Supreme Court's decision in Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965), which "[i]mplied ... that a convicted defendant is entitled to at least one state corrective process to determine a claim of violation of Federal constitutional rights." Knaffla, 309 Minn. at 251, 243 N.W.2d at 740. We said that in enacting chapter 590, the legislature had expanded on the implications of Case to allow postconviction relief not only where federal and state constitutional issues were raised, but also upon a showing of a violation of state law. Id., 243 N.W.2d at 740-41. We explained that the "salient feature" of chapter 590 "is that a convicted defendant is entitled to at least one right of review by an appellate or postconviction court." Id. at 252, 243 N.W.2d at 741. We emphasized that we did not reach the issue of whether the Minnesota Constitution compelled the recognition of the Knaffla right because the broad language of the postconviction remedy statute and existing case law independently supported the recognition of the Knaffla right.[2]Id. at 251-52, 243 N.W.2d at 740-41. 83 The state argues that Deegan is not controlling in this case because Deegan involved a first review by postconviction proceedings of a felony conviction. Although we agree that Deegan is not controlling, we are unable to draw, nor does the state offer, any genuine or defensible distinction between the nature of a first review by postconviction proceeding in a felony case and a first review by postconviction proceeding in a misdemeanor case that would support a conclusion that, unlike felony defendants, misdemeanor defendants can meaningfully exercise the right to first review by postconviction proceeding without the assistance of counsel.[3] The postconviction remedy statute applies with equal force to misdemeanor convictions: Except at a time when direct appellate relief is available, a person convicted of a crime, who claims that ... the conviction obtained or the sentence or other disposition made violated the person's rights under the Constitution or laws of the United States or of the state ... may commence a proceeding to secure relief by filing a petition in the district court in the county in which the conviction was had to vacate and set aside the judgment.... Minn.Stat. § 590.01, subd. 1 (2008). The term "crime" was, and still is, defined as "conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine." Minn.Stat. § 609.02, subd. 1 (2008). A misdemeanor is "a crime for which a sentence of not more than 90 days or a fine of not more than $1,000, or both, may be imposed." Minn.Stat. § 609.02, subd. 3. We have rejected indefensible divisions between felonies, gross misdemeanor, and misdemeanor cases in the past. See State v. Borst, 278 Minn. 388, 396-97, 154 N.W.2d 888, 893 (1967) (holding, based on our supervisory power over the administration of justice, that indigent defendants, including those charged with misdemeanors, were entitled to appointed counsel at trial if they faced incarceration for their crimes). Labeling the offense a felony or misdemeanor is not important, we said in Borst; the need for counsel at trial is not affected by the label assigned to the offense where a person "is apt to be deprived of his liberty." Id. at 397, 154 N.W.2d at 894. Similarly, the need for counsel in a first review by postconviction proceeding is not affected by whether the offense is a felony, gross misdemeanor, or misdemeanor. Consequently, we conclude that the right to counsel guaranteed by Minn. Const. art. I, § 6 applies to Morris's first review by postconviction proceeding. Therefore, the district court erred when it denied Morris's motions for appointment of counsel. II. Morris also argues that the lower courts erred when they rejected his argument that Minn.Stat. § 611.14(2), which excludes misdemeanor defendants from mandatory representation by the SPDO in first review by postconviction proceeding, is unconstitutional because it deprives misdemeanor 84 defendants meaningful access to one review of a criminal conviction, in violation of their right to the assistance of counsel under Article I, Section 6 of the Minnesota Constitution. We disagree. The constitutionality of a statute is a question of law that we review de novo. Soohoo v. Johnson, 731 N.W.2d 815, 821 (Minn.2007). Our power to "declare a law unconstitutional is to be exercised only when absolutely necessary in the particular case and then with great caution." Id. (quoting Grobe v. Oak Ctr. Creamery Co., 262 Minn. 60, 61, 113 N.W.2d 458, 459 (1962)). We presume that, in enacting section 611.14(2), the legislature did not intend to violate either the U.S. Constitution or the Minnesota Constitution. Minn.Stat. § 645.17(3) (2008). Accordingly, we will uphold a statute unless the challenging party demonstrates that it is unconstitutional beyond a reasonable doubt. Soohoo, 731 N.W.2d at 821. Morris has failed to demonstrate beyond a reasonable doubt that the recognition that misdemeanor defendants have a constitutional right to court-appointed counsel for a first review by postconviction proceeding mandates the appointment of the SPDO. The statutory right to state public defender representation does not necessarily include every person who has a constitutional right to court-appointed counsel. For example, misdemeanor defendants subject to imprisonment have had a right to trial counsel under the federal Constitution since 1972, see Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (holding that "no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial"), but they did not always have a statutory right to representation by the state public defender. See Minn.Stat. § 611.26, subd. 6 (1988) (stating that "the district public defender shall represent, without charge, a defendant charged with a felony or a gross misdemeanor when so directed by the district court."). Instead, misdemeanor defendants were entitled by statute, case law, and our rules only to appointed counsel provided by other means. See State v. Borst, 278 Minn. 388, 399, 154 N.W.2d 888, 895 (1967) (extending the right to counsel to indigents charged with misdemeanors where imprisonment could result); Minn. R.Crim. P. 5.02, subd. 2 (1978) (directing that "the court shall appoint counsel for" an unrepresented indigent charged with a misdemeanor punishable by incarceration, unless the defendant voluntarily waives counsel). Consequently, based on the record before us today, it is not "absolutely necessary" that the SPDO be mandated to represent Morris, and therefore it is not "absolutely necessary" that we strike down Minn.Stat. § 611.14(2). For that reason, we hold that Minn.Stat. § 611.14(2) does not violate Minn. Const. art. I, § 6. Our holding in Deegan that because the right to counsel guaranteed by Minn. Const. Article I, Section 6 applied to Deegan's first review by postconviction proceeding, the legislature's 2003 amendment to Minn.Stat. § 590.05 was unconstitutional, 711 N.W.2d at 98 implicitly equated vindication of the right to counsel for first review by postconviction proceeding with representation by the SPDO. Yet we do not believe our holding here calls Deegan into question. Before 2003, the legislature had articulated a policy judgment that the SPDO was obligated to represent defendants under the circumstances described in the 2003 amendment. See Act of May 28, 2003, ch. 2, art. 3, § 2, 2003 Minn. Laws 1st Spec. Sess. 1400, 1401 (restricting representation by the SPDO of a subset of postconviction petitioners who had not pursued a direct appeal: those who *85 had pleaded guilty and received no greater than the presumptive sentence). When the legislature enacted the 2003 amendments eliminating the SPDO's obligation to represent defendants in the circumstances described in the 2003 amendment, it did not express an intent that representation be provided through alternative means. Id. On appeal, the State argued that there was no constitutional right to counsel in the circumstances described in the 2003 amendments. Brief of Respondent State of Minnesota at 16-22, Deegan v. State, 711 N.W.2d 89 (Minn.2006) (No. A05-24). The state did not contest, however, that if the court concluded that a defendant had a constitutional right to counsel in the circumstances described in the 2003 amendments, then the statute should be restored to its pre-2003 version. See id. The parties did not argue or brief other alternatives that might have existed to cure the defect. Consequently, the court limited its analysis to the remedy argued by the parties. Here, the legislature has not articulated a policy judgment regarding how the right to misdemeanor appellate counsel should be vindicated. And the State questions whether the right must be vindicated by the SPDO. Brief of Respondent State of Minnesota at 18-19, Morris v. State, No. A06-2101 (Minn. July 16, 2008). In this case, recognition of the right to misdemeanor appellate counsel does not compel us to affirmatively order, on this record, as a constitutional mandate, that the SPDO must provide that representation. The development of a state policy on how the right to misdemeanor appellate counsel in the postconviction setting is vindicated involves public policy and funding issues that, in the first instance, are better left to the legislature. In the absence of a state policy, we adopt the approach taken in Borst, leaving to the district court's discretion the question of who should be appointed as counsel to represent Morris in the matter before us today. We affirm the lower court decisions that Minn.Stat. § 611.14(2) is not unconstitutional. We reverse the district court's orders denying Morris's motion for appointed counsel and remand this case to the district court for reconsideration of Morris's motion for appointment of counsel.[4] Affirmed in part, reversed in part and remanded. DIETZEN, J., took no part in the consideration or decision of this case. NOTES [1] We need not and do not decide whether the Postconviction Remedy Act applies to a defendant who received a sentence that carries a fine of less than $300 and does not involve the possibility of incarceration, because those facts are not presented here. But, we note that Minn.Stat. § 609.02, subd. 4a (2008), provides that an offense for which a sentence of only a fine of not more than $300 may be imposed does not constitute a crime. [2] Similarly, in Deegan we did not reach the issue of whether the Minnesota Constitution compelled the recognition of the Knaffla right and instead reaffirmed that the broad language of the postconviction remedy act and existing case law independently supported the recognition of the Knaffla right. Deegan, 711 N.W.2d at 95. [3] As in Deegan and Knaffla, we do not decide the issue of whether the Knaffla right is compelled by the Minnesota Constitution. See Deegan, 711 N.W.2d at 95. Our holding in this case is simply an application of the Deegan analysis in the context of a first review by postconviction proceeding in misdemeanor cases, which are of a nature that prevents a person from meaningfully exercising that right without the assistance of counsel. [4] We recognize there is increased cost in providing counsel to indigent misdemeanor defendants for first review by postconviction proceeding. In Borst, we acknowledged concerns about the cost of appointed trial counsel in misdemeanor cases, but observed that "the possible loss of liberty by an innocent person charged with a misdemeanor, who does not know how to defend himself, is too sacred a right to be sacrificed on the altar of expedience." 278 Minn. at 399, 154 N.W.2d at 894-95. There are also measures in place that will limit the universe of indigent misdemeanor defendants who will be eligible for court-appointed counsel or state public defender representation for first review by postconviction proceeding. See generally Minn.Stat. § 590.01 (2008).	{ "pile_set_name": "FreeLaw" }
379 F.2d 943 3 A.L.R.Fed. 587 Walston A. LYNN et al., Appellants,v.J. W. CARAWAY et al., Appellees. No. 24046. United States Court of Appeals Fifth Circuit. July 5, 1967. Jackson B. Davis, Robert J. Moffatt, Shreveport, La., for appellants. Marion K. Smith, Shreveport, La., L. E. Colvin, Mansfield, La., Sidney E. Cook, Frank M. Cook, Shreveport, La., for appellees. Before BELL and GODBOLD, Circuit Judges, and NOEL, District Judge. PER CURIAM: 1 This is an appeal from a judgment entered in favor of the appellees Caraway and Jones in an action filed in federal district court to rescind a contract for the sale of certain fractional undivided interests in an oil and gas lease, referred to herein as the Stevenson lease. The district court found for the appellants against a third defendant, M. L. Allison, who is not a party to the appeal. 2 Appellants contend that said interests were unregistered securities transferred in violation of the registration requirements of the Securities Act of 1933, 15 U.S.C. 77l(1) and 77o, and that there was fraud and misrepresentation in the sale of the securities in violation of the Act, 15 U.S.C. 77l(2) and 77q. They also contend that the transaction violated the general law of fraud in Louisiana, Louisiana Civil Code of 1870, articles 1847 and 2547. 3 The facts have been fully stated by the district court in a light most favorable to the appellants. Lynn v. Caraway, 252 F.Supp. 858 (W.D.La.1966). After a thorough examination of the record, we are of the opinion that the district court's findings of fact are not clearly erroneous, and that the conclusions of law are supported by the cases concidered persuasive by this court. The judgment of the district court is, therefore, affirmed. One matter, however, merits clarification. 4 In its opinion, the district court found that Jones had sole all of his interest in the Stevenson lease to Allison, and held that he had not issued a security because he had not created a fractional undivided interest in the Stevenson lease.1 A seller may, as the appellants contend, transfer his whole interest in oil, gas, or other mineral rights and still have transferred an investment contract, also a security under the Act.2 5 An investment contract is defined as 'a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party * * .' SEC v. W. J. Howey Co., 328 U.S. 293, 298-299, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244 (1946). See also Roe v. United States, 287 F.2d 435 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961), second appeal, 316 F.2d 617, 620 (5th Cir. 1963). If the purchaser of a seller's whole interest in mineral rights is led to expect a profit from the development of the minerals solely from the efforts of the promoter or a third party, more than a 'naked leasehold right' has been transferred, and an investment contract-- a security-- may have been assigned. SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 348, 64 S.Ct. 120, 88 L.Ed. 88 (1943); Roe v. United States, supra. 6 In this case, however, it is apparent that Jones did not assign an investment contract. The district court found that Jones sole his whole interest in the lease to Allison.3 There is no evidence in the record to support a finding that Jones made any promise or agreement in addition to selling a naked leasehold right; while, on the other hand, the record does disclose that Jones agreed to relinquish control of the lease to Allison. The judgment of the district court will not be disturbed. 7 Affirmed. 1 The district court denominated the interest sole by Jones to Allison as a working interest. 'Working interest' and 'interest in an oil and gas lease' (Stevenson lease) are substantially synonymous, and, for purposes of this case, it is appropriate to use the terms interchangeably 2 The Securities Act of 1933 defines 'security' to include an 'investment contract * * (and a) fractional undivided interest in oil, gas, or other mineral rights * * *.' 15 U.S.C. 77b(1). See Roe v. United States, 316 F.2d 617, 620 (5th Cir. 1963) 3 Appellants argue that it was Jones and not Allison who was the owner of the Stevenson lease and who issued the fractional undivided interests therein Appellants contend that Jones owned the lease when the fractional interests were assigned because the transfer from Jones to Allison was neither in writing nor recorded, as required by Louisiana Revised Statutes 9:2721 and Louisiana Civil Code articles 2266, 2276 and 2440, and therefore was void. The district court allowed introduction of parol evidence and an unrecorded counter-letter which established a verbal sale of the lease to Allison, reasoning that the purpose of the evidence was to show the true character of the transaction and the consideration paid for the lease. 252 F.Supp. at 864, n. 11. The Louisiana law is settled that 'The rule which forbids the proving of title to real estate by parol evidence is not applicable to evidence which is offered for some other purpose, for which it is relevant and competent, and which relates only collaterally and unavoidably to, and without establishing or affecting the ownership of real estate.' Emerson v. Shirley, 188 La. 196, 175 So. 909, 912 (1937). This is a suit brought by the appellants to rescind the sale of unregistered securities under the provisions of the Securities Act of 1933. Proving a transfer of ownership in the lease from Jones to Allison for the purpose of determining which party issued unregistered securities is clearly an issue which is collateral to proving title to the lease. The appellants also allege that Jones retained the title to the Stevenson lease in his name, assigned the fractional undivided interests therefrom and was the issuer of the securities. The district court found that Jones had completed the sale to Allison prior to the transfers to appellants, and that Jones made the fractional assignments merely as an accommodation to Allison. The finding is not clearly erroneous, and the result is correct. Compare Woodward v. Wright, 266 F.2d 108, 115 (10th Cir. 1959); First Trust & Savings Bank of Zanesville, Ohio v. Fidelity-Philadelphia Trust Co., 214 F.2d 320, 50 A.L.R.2d 1218 (3d Cir.), cert. denied, 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 674 (1954); Winter v. D.J. & M. Inv. and Constr. Co., 185 F.Supp. 943 (S.D.Cal.1960). This does not mean that a seller of mineral rights can avoid the requirements of the Securities Act by making a sham sale to a third party or that he can engage in a practice of selling mineral rights to others with a view to the resale of fractional undivided interest by them. If he does, he may become an issuer or underwriter, thereby subjecting himself to the requirements of the Securities Act of 1933. See Woodward v. Wrights, supra, 266 F.2d at 115; Fawcett, Applicability of Federal and State Securities Acts to Sales of Oil and Gas Interests, 17th Ann.Inst. of Oil & Gas Law and Taxation 269 (S.W. Legal Found. 1966); 1 CCH Fed.Sec. L. Rep. para. 1032.	{ "pile_set_name": "FreeLaw" }
669 F.2d 216 6 Collier Bankr.Cas.2d 105 UNITED STATES of America, Plaintiff-Appellee,v.Gregory J. CARSON, Defendant-Appellant. No. 80-7241. United States Court of Appeals,Fifth Circuit. Unit B* Feb. 17, 1982. Mark J. Kadish, Rhonda A. Brofman, Atlanta, Ga., for defendant-appellant. Howard J. Weintraub, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of Georgia. Before TUTTLE, TJOFLAT and KROVITCH, Circuit Judges. TJOFLAT, Circuit Judge: 1 This appeal raises the novel question whether a district judge may require an offender, as a condition of probation, to make restitution to his victim for losses caused by the offense for which he was convicted, when the debt occasioned by the offense has been discharged in bankruptcy. We hold that he may, and that the sentence imposed in this case was therefore within the discretion of the district judge. 2 On August 2, 1977, Gregory J. Carson (appellant) presented to an officer of the Fulton National BankB an assignment letter bearing the purported signature of the treasurer of the Life Insurance Company of Georgia. In fact, Carson had signed the treasurer's name for the purpose of inducing FNB to extend him credit. Relying on the assignment letter, FNB lent appellant $39,000. In March of 1978, FNB discovered the fraud. Carson never repaid the loan. On March 21, 1979, with no objection from FNB, Carson's debt to FNB was discharged in bankruptcy. 3 On January 21, 1980, Carson was convicted of making a false statement to FNB, a bank insured by the Federal Deposit Insurance Corporation, for the purpose of influencing the bank's action on a loan, in violation of 18 U.S.C. § 1014 (1976). The district court sentenced Carson to a term of two years, with six months to be served in prison and the remainder suspended. The court placed Carson on probation for five years, with the condition that he make restitution to FNB in the amount of its loss as a result of the offense. The authority for this condition was 18 U.S.C. § 3651 (1976), which provides in relevant part: 4 While on probation and among the conditions thereof, the defendant- 5 May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had.... 6 Appellant contends that since his debt to FNB had been discharged in bankruptcy, the district court abused its discretion by making restitution a condition of probation. We find this position untenable on its face.1 Nothing in the language or the evident intent of 18 U.S.C. § 3651 suggests that a prior discharge in bankruptcy limits the sentencing court's discretion.2 7 The effect of the discharge in bankruptcy was to extinguish Carson's liability to FNB on any claim to payment arising out of the 1977 loan. Following the discharge, FNB could have maintained no action for repayment or fraud, and the district court could not properly have ordered Carson to make good his debt qua debt. 8 However, as authorized by the statute, the district court properly conditioned Carson's probation on his restitution to FNB of the amount of its loss as a result of his offense. Discharge or not, Carson cannot maintain that FNB suffered no "actual damages or loss caused by the offense for which conviction was had." FNB's loss was not extinguished by Carson's bankruptcy; if anything, it was fixed thereby. Nor does Carson offer any reason to restrict the losses for which restitution is authorized to those for which the aggrieved party retains a right of action. 9 At bottom, Carson argues that to require restitution is unfair in light of FNB's failure to assert its rights in the bankruptcy proceeding. If the principal aim of the probation condition were to make the bank whole, this argument might have some appeal. In fact, though, while recompense to the victim is a usually laudable consequence of restitution, the focus of any probation regimen is on the offender. The order of probation is "an authorized mode of mild and ambulatory punishment ... intended as a reforming discipline." Korematsu v. United States, 319 U.S. 432, 435, 63 S.Ct. 1124, 1126, 87 L.Ed. 1497 (1943), quoting Cooper v. United States, 91 F.2d 195, 199 (5th Cir. 1937). The Supreme Court has defined probation as "an individualized program offering a(n) ... unhardened offender an opportunity to rehabilitate himself without institutional confinement...." Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 113, 117, 88 L.Ed. 41 (1943). As one court, addressing restitution as a condition of probation, has put it: 10 Restitution can aid an offender's rehabilitation by strengthening the individual's sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions. One who successfully makes restitution should have a positive sense of having earned a fresh start and will have tangible evidence of his or her capacity to alter old behavior patterns and lead a law-abiding life. Conditioning probation on making restitution also protects the community's interest in having the victims of crime made whole. 11 Huggett v. State, 83 Wis.2d 790, 266 N.W.2d 403, 407 (1978) (quoted with approval in H.R.Rep.No.96-1396, 96th Cong., 2d Sess. 458 (1980), Report of the Committee on the Judiciary to accompany H.R. 6915, Criminal Code Revision Act of 1980). 12 We hold that neither FNB's failure to protect its rights in Carson's bankruptcy proceeding nor the consequent discharge of Carson's debt to the bank barred the district court from conditioning Carson's probation on restitution as it did. Therefore, we AFFIRM.3 * Former Fifth Circuit Case, Section 9(1) of Public Law 96-452-October 14, 1980 1 Carson concedes that his sole authorities are logic and fairness. The real question, of course, is whether Congress intended the result Carson advocates. The parties offer, and we find, no illumination of Congress' intent in the legislative history of 18 U.S.C. § 3651 or elsewhere. We therefore treat Carson's contention as tendered, as a matter of logic and fairness. Deciding as we do that Carson's position does not make sense, we conclude that Congress could not have endorsed it 2 18 U.S.C. § 3651 states that the sentencing court may place the defendant on probation "upon such terms and conditions as the court deems best." The district court's discretion to design and impose probation conditions is broad. See, e.g., United States v. Tonry, 605 F.2d 144 (5th Cir. 1979) 3 We have also considered, and reject as meritless, Carson's separate claim that the district court erred in its supplemental charge in response to a question posed by the jury during its deliberations. The challenged portion of the charge was a correct statement of the law, United States v. Johnson, 585 F.2d 119 (5th Cir. 1978), and was a balanced instruction as required by United States v. Meadows, 598 F.2d 984, 990 (5th Cir. 1979)	{ "pile_set_name": "FreeLaw" }

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